CHAPTER 10 LOCALIZED LITIGATION
| Jurisdiction | United States |
(Mar 1981)
LOCALIZED LITIGATION
Head, Moye, Carver & Ray
Denver, Colorado
INTRODUCTION
I. Avoiding Litigation
A. Developing a Working Relationship with Field Personnel
B. When to Bypass or Appeal Decisions of Field Personnel
C. Use of Agency Appeal Processes to Avoid Litigation
D. Use of Litigation as a Means of Avoiding Future Litigation
II. Structuring the Litigation
A. Leaving Settlement Options Open
B. Increasing Risks to the Agency as an Incentive to Settlement
C. Building the Administrative Record
D. Procedural Issues which are Often Ignored Although Sometimes Useful
E. Choice of Venue for Litigation
III. Post-Litigation Follow Up
A. Obtaining the Relief Ordered
B. Appeal Strategies
C. Role of the Solicitor General in Government Appeals
D. Recovery of Costs and Attorney's Fees Under the Equal Access to Justice Act
CONCLUSION
INTRODUCTION
As is the case with must of the topics presented at this institute this paper suggests techniques which are useful in increasing the likelihood of obtaining prompt issuance of permits on terms which can be reasonably complied with. Unfortunately, however, litigation is not usually treated as simply another technique for expediting permit issuance. Instead, it is often regarded as an exclusively legal procedure which is independent from the permitting process and is resorted to only when discussions between the project managers and permitting agency have irretrievably broken down.
Such notions fundamentally misconstrue the positive role which litigation — or the threat of litigation — can play in even the smoothest and most cooperative permitting negotiations. These misconceptions are based upon the fact that litigation functions are too often segregated from the balance of the permitting functions of a project, so that the knowledge and experience of the litigating attorney are not made available to the project planners at the proper time.
This sometimes results in the need to appeal issues which could have been entirely avoided or successfully resolved without litigation if the attorney's knowledge of agency rules and regulations had been available to the manager. Similarly, creative solutions to ongoing appeals and other litigation are often overlooked by the litigating attorney due to his unfamiliarity with the technical and economic aspects of the proposed project. Thus, the segregation of these functions creates a self-fulfilling prophecy in which cooperation ends once litigation has begun.
The purpose of this paper is to illustrate some of the benefits of thoroughly integrating litigation expertise, knowledge and techniques into the entire permitting process. Proper understanding of some of the administrative strategies and suggestions set forth below will frequently make resort to litigation wholly unnecessary. It will also enhance the chances of making any litigation which does arise more cost-efficient, less protracted, and less likely to interfere with the necessary daily cooperation between field personnel of the company and agency.
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I. AVOIDING LITIGATION
A. Developing a Working Relationship with Field Personnel.
Undoubtedly the people who are most important to a company's permit-related litigation are its non-legal field personnel. The manner in which a project is planned, presented, and carried out almost always has more bearing on the company's ability to obtain needed permits than does litigation. When the field personnel begin working on a project the prospects of eventually obtaining needed permits are usually as good as they will ever be. Assuming that no statutory, regulatory or established land planning impediment to the project exists, it can be assumed that the permitting agencies at the field level expect to review the proposal, suggest changes where appropriate, and then approve it. Protracted delays in approving a permit or outright rejection of an application generally can be anticipated only when the field personnel become convinced that the project cannot or will not be modified to conform to their requirements.
It is the function of the company's field personnel to prevent the agency from ever reaching such a final conclusion, if at all possible. The companies which have proven to be most successful in obtaining timely permits with the least expensive modifications utilize an administrative framework which insures that the proposal has been structured to conform as much as possible to the requirements of the permitting agency before the application is filed.
If the plans are sound and if they are carried out in a manner consistent with the representations which are made about them, then the company can build credibility with the agency which will enhance its chances for cooperative, prompt treatment of the next application.
Management will usually insist that its permit expediter be fully familiar with the economic impacts of the permitting process. It should also insist that he be just as familiar with the statutory, regulatory and procedural framework within which the bureaucrat must function.
In the area of seeking permits to drill for oil and gas on federal lands, for example, such knowledge should include not only familiarity with the Mineral Leasing Act and titles 30 and 43 of the Code of Federal Regulations, but also with the Departmental Manual, Solicitor's Manual, applicable instruction memoranda, "policy guidelines", handbooks, BLM and USGS training manuals, and the Management Framework Plans and Resource Management Plans which cover the lands affected by the proposed project. Armed with the same
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knowledge as the BLM or GS personnel, the environmental specialist can propose alternative rights-of-way, drilling locations, alternative construction techniques and other modifications of existing plans whenever a nesting bald eagle or remnant of Custer's Last Stand is discovered in the vicinity of the proposed drilling site. Assuming that the specialist has kept in close contact with the operations personnel within the company, his suggested modifications can prove far less expensive and cause far less delay than would result from simply waiting until the BLM orders a particular (often impractical) modification or imposes an unnecessarily restrictive stipulation on the permit.
B. When to Bypass or Appeal Decisions of Field Personnel.
A full and accurate knowledge of the permitting agency's duties and restraints will pay dividends when an unsympathetic or overly-rigid bureaucrat is encountered in the field. It is useful to keep in mind that field personnel can generally grant a permit in close cases without fear of being overruled by their superiors. Thus, no effort should be spared in working with the lowest ranking field people possible before their superiors are brought into the picture. Upon encountering unreasonable resistence on final rejection, however, a good knowledge of agency procedures and personnel is necessary to properly evaluate how many informal or formal appeal options exist, and which is the most likely to succeed.
For example, applications for permits to drill are obtained from U.S.G.S. after consultation with BLM or other surface management agency to insure proper management of the surface. A tentative decision by the local BLM wildlife specialist that the proposed drilling location should be moved two miles due to the existence of nearby thumping grounds for prairie sage hens, can be reviewed, formally or informally by at least the following persons:
(1) The BLM District Manager (2) the BLM State Director, (3) the BLM Director, (4) the Assistant Secretary for Land and Water Resources, (5) the Assistant Secretary for Energy and Minerals, (6) the Regional Solicitor, (7) the Solicitor, (8) the Interior Board of Land Appeals (IBLA), (9) the Regional Geologist, (10) the Director of the U.S.G.S., and (11) the Secretary.
While not all of these people have the power to directly overrule the initial decision, those who do not can still exert a high degree of influence to cause a reevaluation and, hopefully, modification or recission of it.
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Before an appropriate "appeal" strategy can be formulated, however, it is necessary to be familiar with the personalities or predispositions of the persons involved and with the legal status of such diverse subject matters as the leasehold contract and the protected status of the prairie sage hen. Often no single person within the company knows all the relevant information. Nevertheless, if the company's operational personnel, attorneys, and landmen can be consulted by the permit expediter, it is often possible to devise an appeal strategy which maximizes the chances of success.
As an example of one such hypothetical strategy, the attorney should be in a position to provide the company with the following advice: The IBLA has consistently held that the leasehold contract does not grant BLM the right to deny or severely diminish a lessee's right to explore and develop significant portions of the lease. Assuming that the lease is not encumbered by a "no surface occupancy" or other highly restrictive stipulation (in which case the issues change radically) then the issue is whether BLM has adequately documented both the threat to the sage hens and has provided viable development alternatives to the lessee. If the company's environmental specialist tells the attorney that the sage hens occupy the site only for three months out of the year, and if the geologist tells him that the BLM's suggested drill site is worthless for exploratory purposes, then the company may propose in writing that it will restrict its drilling activities to the nine months out of the year when the sage hens are absent. Simultaneously, while the company is building its administrative record for possible use before the IBLA, the district manager, state director and...
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