JurisdictionUnited States
Natural Resources Administrative Law and Procedure
(Nov 1981)


Theodore E. Worcester and Catherine J. Boggs
Sherman & Howard
Denver, Colorado


Since the 1930's there has been a growing awareness that extensive social changes have greatly increased and altered the functions of state governments.1 Concern with the burgeoning bureaucracy and excesses in the federal administrative process has produced collaborative attention on state procedures. In addition, the present administration's emphasis toward diluting the federal role and enhancing the power of states to regulate and administer their resources has produced renewed interest in administrative practice before state agencies.

The following discussion involves an eclectic group of topics in selected areas of administrative law. The focus of attention is the manner in which these issues affect practice before state mining agencies. The first issue concerns state sunshine laws and their interplay with ex parte contacts between mining agencies or board members and interested parties. Some guidelines as to when these contacts should be disclosed will also be examined. Secondly, selected state administrative procedure acts are summarized and compared with the Model Act prepared by the National Conference of Commissioners on Uniform State Laws. Third, the paper will discuss some inherent conflicts in the agency process. Particular note will be made of the situation in which the decision of one staff member is reviewed by another staff member. Under these circumstances, when must a party exhaust this type of administrative remedy? The connected issue of when the submission and notice of supplemental information is required will be analyzed. Finally, this paper contains a review of procedural rules contained in statutes relating to particular state agencies as these rules conflict with state APA-established procedures.

I. Ex Parte Contacts

The subject of ex parte contacts in either rulemaking or adjudication has been the subject of extensive academic, industry and legal concern.2 Delineating the limits of permissible contacts with

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agency personnel and independent board members becomes an elusive task, often times dependent upon the facts of a particular situation.3 In addition, the question of when publication of such contacts is necessary is an important query for the practitioner to answer.

Examining the statutes of six Western states reveals that all of them have "sunshine" provisions.4 These provisions are designed to force agencies, commissions, or boards to decide public business in a public forum and permit judicial review of the decision. Ex parte contacts, or off-the-record communications between administrative agencies and parties to agency proceedings, are one facet of this concept of open agency deliberations. The ideal behind sunshine laws and prohibitions against ex parte contacts is that democratic decisionmaking is best derived under the scrutiny of a well-informed public.5 Excluding ex parte contacts with decisionmakers is further designed to prevent inaccurate factual determinations and unreviewable decisions by an agency, unfair access to decisionmakers, and improper political influence.6

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Although courts are becoming more sensitive to the inherent "innuendo" involved in the relationship between regulators and the subjects of their regulation,7 it is still not clear what are the appropriate limits of this relationship. There seems to be some agreement in prohibiting ex parte communications in adjudicatory proceedings.8 Contacts in rulemaking proceedings are not so clearly prohibited. In Home Box Office, Inc. v. FCC, the court ordered a comprehensive prohibition against ex parte communications on the merits in all rulemaking proceedings.9 In this case its was alleged that there had been ex parte contacts with FCC Commissioners and members of their staff, after the rulemaking record had been closed. However, the same court subsequently appeared to retreat from this absolute rule in its decision in Action for Children's Television v. FCC.10 By reinstating a case-by-case analysis of the factual and legal issues involved, the court refined its ruling to prohibit ex parte contacts and demand their disclosure only in situations that involved an adjudication.

The problem, in general, and as applied to state administrative practice, centers on distinguishing and classifying an agency proceeding as either adjudicatory or rulemaking. The extremes of the continuum can be identified as rulemaking (adoption of a rule with

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general and future applicability), or adjudication (a determination of rights, duties or obligations of a particular individual or entity within the framework of previously established rules). The difficulty arises in analyzing those situations that occur in between the extremes, or in proceedings which exhibit both characteristics.11

Practice before state administrative agencies presents problems similar to those found at the federal level, but with less case law to assist in their interpretation. There are, however, some touchstones in federal law which can serve as guidelines. In Sangamon Valley Television Corp. v. United States, the District of Columbia Circuit held that an applicant's secret ex parte contacts with several commissioners of the FCC after the deadline for final comment violated due process.12 The court found the Commission's action approving the transfer of television channels was primarily informal rulemaking. However, the court characterized the decisionmaking process as adjudicatory because it involved the resolution of "private claims to a valuable privilege."13 Thus, when the proceeding begins to take on the attributes of adjudication, the interested party should concern himself with the need to disclose such a contact, or avoid it altogether.14

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For proceedings that can better be characterized as rulemaking, the recent decision by the District of Columbia Court of Appeals provides a rubric to follow. In Sierra Club v. Costle,15 the Environment Defense Fund challenged EPA regulations regarding new source performance standards (NSPS), in part, on the grounds that ex parte contacts had violated the integrity of the rulemaking process.16 The court acknowledged the need for policymakers to be open and accessible to the public, but noted that EPA must justify its rulemaking "solely on the basis of the record it compiled."17 Since Congress did not restrict post-comment contacts, or require all of them to be docketed in informal rulemaking, the court would not do so either. However, all oral communications "of central relevance to the rulemaking" must be placed in the record.18

A review of state statutory provisions reveals that, like the Model APA, they prohibit agency or hearing officers involved in adjudicatory proceedings from engaging in ex parte contacts unless notice is given.19 In Wyoming, Nevada, and Montana, in addition to notice, all interested parties must be given an opportunity to participate.20 In New Mexico a copy of any ex parte communication must be sent to all parties to the proceeding. Thus, in licensing and permitting proceedings, in which an individual's rights are being decided, contact with an agency decisionmaker will have to be

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disclosed. However, contact with agency staff, or persons not involved with the decisionmaking are not prohibited.21

Prohibiting all contacts with state mining agencies would clearly deprive the agency of the flexibility needed to conduct its business. In either formal adjudication procedures or informal rulemaking procedures the purpose is the same — to allow the agency to acquire information and develop a sufficient record so that the decision can survive a judicial challenge of its validity.22 Thus, the practitioner should keep in mind that notice of contacts should be made when the contacts concern material issues that will probably affect the outcome.23 It is the agency's duty to disclose these significant contacts, but the practitioner representing any interested party should police the agency and encourage publication of questionable contacts in order to avoid a cloud over the proceedings.24 If contacts are made public and the agency action becomes final, the statute of limitations can begin to run, making the action a certainty. This eliminates the chance that the hearing will be reopened at some future time to allow rebuttal to unknown, ex parte communications. In any event, ex parte contacts will probably not invalidate agency action when:

(1) all affected parties have notice of the contacts,

(2) the comments are made in good faith, and

(3) no undue influence of the agency's final action can be demonstrated.25

Although there exists more flexibility in the rulemaking situation than in an adjudication, the wisest precaution would be to request publication of significant contacts in either situation.

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The retention of outside consultants by state agencies to assist in evaluating information and advising agencies also extends the problem of ex parte contacts. The demand for increased technical expertise has obscured the determination that an agency decisionmaker is truly the one making the decision. Because the outside consultant or his report may potentially be involved in the decisionmaking process, contacts with him by interested parties may serve to vitiate the integrity of the process.

At the federal level, the Independent Offices Appropriation Act (IOAA)26 authorizes Federal agencies to charge an identifiable recipient for use of outside consultants. In other words, if the expertise of an outside consultant is used in evaluating information, payment for the use of such consultants may be recovered by the Federal Government. This vehicle for reimbursement to the government avoids any impropriety...

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