CHAPTER 10 RULEMAKING BEFORE STATE AND LOCAL AGENCIES

• Jurisdiction: United States

Natural Resources Administrative Law and Procedure
(Nov 1981)
CHAPTER 10
RULEMAKING BEFORE STATE AND LOCAL AGENCIES
Hubert A. Farbes, Jr.
Conver, McClearn, Heppenstall & Kearns
Denver, Colorado

I. INTRODUCTION

The 1981 Institute on Natural Resources Administrative Law and Procedure includes a number of papers which evaluate and analyze the conceptual elements of administrative rule-making. This paper will not restate those analyses, but instead undertakes a brief survey and examination of significant aspects of, and important recent trends affecting, administrative rule-making in the western states.

Rule-making before state agencies is the primary focus here because a separate paper has been prepared on practice before local agencies. This paper will not address the various state "sunset" laws for administrative agencies, because such statutes do not directly affect agency rule-making procedures.

II. ADMINISTRATIVE AGENCIES OF THE SAME STATE OFTEN HAVE DIFFERENT PROCEDURAL STRUCTURES

State and local administrative practice is immediately distinguishable from the federal process by the absence of comprehensive, uniform rule-making procedures. Every western state has enacted legislation based, at least in part, upon the Model State Administrative Procedure Act;¹ but every state has also adapted and modified that format to address its own peculiar structures and philosophies of government. As a result, there is wide variation among the states in the methods and

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requirements for adoption of administrative rules; and very few states have adopted administrative codes which are truly comprehensive in application.²

Most "comprehensive" state administrative procedure acts apply only to designated state-wide agencies. These limitations probably reflect the general reluctance of state governments to encroach upon local perogatives; and this unspoken principle is a primary reason that administrative practice before local agencies remains an unstructured mixture of customs, traditional "town meeting" methods and fragments of "model" codes. Meaningful general analyses of local rulemaking procedures are, correspondingly, of little practical benefit.

In fact, most state administrative procedure acts ("APA's") do not establish uniform rule-making processes even among those agencies with state-wide jurisdiction. The Wyoming APA is an exception in this regard, for it applies to "any authority, bureau, board, commission, department, division, officer or employee of the state, a county, city or town, or other political subdivision of the state...".³ No other state has successfully established uniform administrative procedures throughout state and local government,⁴ and most state APA's never really attempted such a feat. Oklahoma, for example, excludes a number of state-wide agencies, including the Oklahoma Corporation Commission, its major resource regulatory

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agency, and all local agencies, from state APA requirements.⁵ Most state legislatures have either exempted certain administrative agencies by the language of their "comprehensive" administrative codes, or continued to promulgate special procedural criteria as part of the enabling legislation for administrative agencies. The general rule of judicial construction, that provisions of a specific enabling act control over provisions of a general procedural statute, provides support for a growing superstructure of "special" procedural rules applicable only to specific agencies.

Another variable in certain states is the jurisdictional interplay between state APA's and procedural requirements of "little NEPA" statutes. For example, the Washington State Environmental Policy Act ("SEPA")⁶ establishes a Council on Environmental Policy authorized to adopt uniform rules for implementation of environmental impact evaluation by state agencies.⁷ However, a different section of SEPA authorizes individual state agencies to adopt their own rules for implementation of that statute, and those rules are not required to be the same as the Council's pronouncements.⁸ New amendments to the statute have not resolved the potential conflict between agency procedural rules and rules of the Council,⁹ and the practitioner is left to guess which procedure will properly provide SEPA compliance during state agency rule-making.

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A contributing factor to the variability of state rulemaking procedures is the fact that certain agencies continue to adopt their own special procedural rules which elaborate upon, or differ from, the provisions of a state APA. Some state legislatures have endorsed this concept,¹⁰ but examples still abound of the state agency that makes its own peculiar rules and "policies", written and unwritten, without regard to statutory requirements.¹¹ One commentator has recently complained of an Oklahoma Supreme Court decision which sanctions unwritten "policies" of the Oklahoma Securities Commission as exempt from APA procedural requirements.¹²

At least one uniform premise of state rule-making is applicable in every state: practitioners before a state or local administrative agency must carefully examine the "comprehensive" state APA, the applicable enabling statute and, perhaps, the memory of any resident "old hands" familiar with the particular forum before drawing conclusions as to the applicable procedures for rule-making.

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III. BASIC ELEMENTS OF STATE AGENCY RULE-MAKING HAVE MANY DIFFERENT PROCEDURAL FORMS

Administrative procedures for state agencies are not uniform, but the basic elements of procedural due process are provided for in every western state. The wide variation in statutory framework, and the citizen-layman composition of many state administrative boards and commissions, simply produces many different forms and methods for due process.

Notice of rule-making by state agencies is required by the comprehensive administrative codes of every state, and by the enabling acts for many state resource regulatory agencies. Unlike the federal administrative realm however, notice to the public may be accomplished in any number of different ways. The laws of Colorado provide an excellent example. Colorado's state administrative procedure act provides for notice of rule-making by publication in the Colorado Regulations Register;¹³ but the Colorado Air Quality Control Commission is authorized by its enabling act to provide notice of rule-making only to those persons who request notice of Commission actions,¹⁴ and the Colorado Ground Water Commission must provide public notice by "publication in a newspaper of general circulation in each of the counties concerned".¹⁵

Administrative procedure acts in every western state require the conduct of public hearings and the solicitation of public comment before adoption of an agency rule. However, Nebraska's APA does not require that agencies consider oral testimony at their public hearings, and appears to authorize agencies to adopt their rules without evaluating the...