CHAPTER 1 THE FUNDAMENTALS OF ADMINISTRATIVE LAW FOR NATURAL RESOURCES PRACTICE

• Jurisdiction: United States

Natural Resources Development and the Administrative State: Navigating Federal Agency Regulation and Litigation
(Feb 2019)
CHAPTER 1
THE FUNDAMENTALS OF ADMINISTRATIVE LAW FOR NATURAL RESOURCES PRACTICE
Justin Pidot ¹
Professor
University of Denver Sturm College of Law
Denver, CO

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JUSTIN PIDOT is a Professor at the University of Denver Sturm College of Law in Denver, CO. He graduated with high honors from Wesleyan University before attending Stanford Law School, where he graduated with distinction and was editor in chief of the Stanford Environmental Law Journal. Professor Pidot served as the Deputy Solicitor for Land Resources for the Department of the Interior during the Obama Administration. He also clerked for Judge Judith W. Rogers of the U.S. Court of Appeals for the District of Columbia Circuit. Prior to joining the University of Denver faculty, he was an appellate litigator at the Environment and Natural Resources Division of the U.S. Department of Justice, where he presented argument in more than a dozen federal appellate cases and acted as the staff attorney on two cases before the United States Supreme Court. Professor Pidot also completed a fellowship at the Georgetown Environmental Law & Policy Institute. Professor Pidot's scholarship and teaching focus on environmental law, natural resources law, and federal courts.

Introduction

In introductory lectures for courses related to natural resource, public lands, and environmental law, I exhort students to take a course focused on the federal Administrative Procedure Act (APA). To many law students, the field of administrative law seems abstract. Yet its rules influence, and even dominate, the practice of those who interact with the federal agencies charged with managing public lands and federally owned natural resources. The most important of these agencies are the U.S. Department of the Interior's Bureau of Land Management (BLM), which manages almost 250 million acres of federal public lands and 700 million acres of federally owned minerals, and the U.S. Department of Agriculture's Forest Service, which manages almost 200 million acres within 154 national forests, although experts in the field know to engage with other agencies (often several of them) depending on the nature of a particular project, the lands and resources it effects, and regulatory jurisdiction within which it falls.²

This paper provides a primer on the attributes of federal administrative law. It divides its discussion in two. Part I addresses the procedures governing agency actions, and Part II addresses judicial review of those actions. The field addressed is broad, and by necessity cannot be fully encapsulated here. Rather than a comprehensive treatment of the subject, I aim to describe in broad strokes it's contours with an emphasis on the issues with which I have most frequently engaged during stints as a lawyer at the Department of Justice and Department of the Interior advising and defending federal agencies.

Let me offer a final caveat. This paper does not venture far beyond the boundaries of the APA and general administrative law into the details of the dozens of federal laws that govern the development of natural resources. The APA creates the backdrop for the rules and procedures that govern agencies, but Congress often adds or subtracts for specific resources, circumstances, or agencies, and the agencies have added layers of additional process through their regulations, adjudications, and general practice. Those voluminous and often complicated details that govern, for example, the manner by which an interested party can protest a land management decision or appeal a decision disapproving a permit are not addressed, although on occasion the discussion that follows will draw from them to illustrate one of the concepts addressed.

I. Procedural Paradigms of Agency Decisions

The APA identifies two categories of actions that agencies can take: agencies can engage in rulemaking to formulate, amend, or repeal rules, or they can engage in adjudication to issue orders.³ That's it. Any official action taken by an agency must constitute an adjudication or

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rulemaking as far as the APA is concerned, although at times it can be difficult to discern within which category an action most comfortably fits.⁴

The APA defines rules to constitute "the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency," and orders as "the whole or a part of a final disposition . . . in a matter other than rule making."⁵ These definitions are not very helpful, because the definition of rule is sufficiently capacious to encompass most decisions. They do, however, have two important ramifications:

First, rulemaking must be forward-looking, rather than retroactive.⁶ This has an important ramification: An agency that reissues a rule after it has been vacated and remanded by a court cannot apply the rule to decisions made or actions taken during the remand. Let me make that concrete. Assume the BLM adopts a new rule for valuing federal oil and gas resources and upon judicial review a court concludes it committed procedural defects, vacates the rule, and remands for further proceedings. The BLM then reissues the same rule, after completing the procedures identified by the court. The rule will not apply to royalty payments made prior to the effective date of the reissued rule.

Second, because an adjudication is defined in the negative, rather than in reference to any attributes of its own, they occur whenever rulemaking does not. Put differently, adjudications are, in a sense, the default for agency actions.

Adjudications and rulemaking can be further subdivided. Adjudications either can be formal or informal, and a few special rules attach to adjudications to withdraw, suspend, or revoke a license regardless of their categorization. Rulemakings either can be subject to notice and comment requirements or exempt.⁷ The APA provides detailed procedures for formal adjudications and notice and comment rulemaking but has little to say about informal adjudications and exempted rulemaking.

The remainder of this Part first identifies the procedures that the APA requires for all agency proceedings, before addressing each of the four general four categories of agency decisions in turn.

A. General Procedures

APA section 555 applies to all agency proceedings, although its requirements are quite minimal. Agencies are directed to act within a reasonable period of time and generally to allow interested persons to appear before them.⁸ Once an agency has made a decision, it is directed to provide "prompt notice" of any "denial in whole or in part of a written application, petition, or

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other request of an interested person" and to provide a "brief statement of the grounds for denial."⁹ These procedures are government friendly, but provide those seeking things from agencies--permits, licenses, new regulations, etc.--with a legal basis to saber rattle, and even file a lawsuit, when a decision is not forthcoming. While litigation may fail, it nonetheless may have the effect of prompting an agency to reach a final decision to either moot a lawsuit before judgment or foreclose further litigation on the matter.

These modest limits on an agencies ability to delay a decision indefinitely and to act without explanation are the more significant aspects of section 555. I have never encountered an issue related to the other required procedures in a matter related to public lands or natural resources. For example, an agency may not prevent a party compelled to appear before it from being represented by counsel,¹⁰ but I am unaware of circumstances in which the BLM and Forest Service have attempted to preclude representation. Parties may also avail themselves of the subpoena power granted to an agency under other statutory authority,¹¹ but I have also not encountered subpoenas as a component of this practice area.

B. Formal Adjudications

Formal adjudications resemble court proceedings. They occur when a statute requires an agency to resolve an adjudication "on the record after opportunity for an agency hearing."¹² Congress sometimes uses language that resembles, but does not mimic, that provided in the APA, and if a statute is ambiguous as to whether it requires formal adjudication, agencies generally get to choose which type of adjudicatory procedures to use.¹³ Few (if any) public lands law use the precise language identified in the APA for formal adjudications. The BLM has, however, traditionally construed the Taylor Grazing Act as requiring formal adjudication for revocation and modification of grazing permits, although an argument exists that the text of the statute doesn't require this.

It remains worthwhile to have a basic sense of the procedures attached to formal adjudications, because agencies have adopted aspects of them by regulation and practice for other proceedings. Those procedures are laid out in APA section 554, 556, and 557.¹⁴

Formal adjudications involve a live presentation of legal and factual issues to an administrative law judge (ALJ).¹⁵ Agencies must provide parties to formal adjudications with timely notice of the time, place, and manner of the hearing and the factual and legal issues in controversy and parties to the proceeding must have an opportunity to submit their own contentions.¹⁶ Parties also have the opportunity to present evidence at the hearing and "conduct such cross-examination as may be required for a full and true disclosure of the facts."¹⁷

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The ALJ presiding over a formal adjudication must not have ex parte communication with any interested party outside of the agency,¹⁸ and may not consult with others within the agency about factual matters.¹⁹ These rules do not...