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


David R. Sturges
Delaney & Balcomb, P.C.
Glenwood Springs, Colorado


The scope of this paper is primarily directed to review certain administrative law aspects of practice before the Department of the Interior, with particular attention to the Bureau of Land Management (BLM) and the Office of Surface Mining Reclamation and Enforcement (OSM). References and discussion of administrative law issues in other federal agencies will occasionally be made where appropriate to note similarities or distinctions to substance or procedural issues of the BLM and OSM. Special consideration will be given to the problems and opportunities to establish an administrative record in these agencies' initial decision proceedings which can have significant importance in subsequent administrative and judicial review proceedings.

The focus on BLM is to consider the particular aspects of administrative law presented in a public lands/resource management agency, while the focus on OSM is to consider the same aspects presented in an environmental protection agency. To consider the evolution of administrative law matters in the Interior Department, initial consideration will be given the work of the Public Lands Law Review Commission (PLLRC)1 and its 1970 report2 which substantially altered the administrative law procedures of matters before the BLM prior to the enactment of the Federal Lands Policy and Management Act of 1976 (FLPMA).3 The passage of the Surface Mining Control and Reclamation Act of 1977 (SMCRA)4 brought new administrative law issues and procedures to the Interior Department. The application of the Administrative Procedure Act of 1947 (APA) will also be considered.

Lastly, because these are federal agencies, some limited consideration will be given to the special requirements of federal decision-making mandated by the National Environmental Policy Act of 1969 (NEPA)5 and resulting administrative law considerations.

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The public lands of the United States were originally managed by the General Land Office within the Treasury Department. Congress, responding to a plan submitted by the Secretary of the Treasury in 1848 to create a Department of the Interior, enacted the law creating the Interior Department on March 3, 1849.6 In public land cases, the Department's adjudication system always provided a right of appeal to the Secretary of decisions made by subordinate departmental officials. This secretarial review authority was delegated from time to time to different departmental officials. From 1947 to 1970 the Solicitor was delegated this review power, which he in turn delegated to the Assistant Solicitor for Land Appeals. An intermediate appeal was required which, from 1947 to 1970, was handled by the Director of the BLM. However, before 1970 different members of the Solicitor's Office would advise the BLM in making their initial decisions, represent BLM in hearings on mining, land entry and grazing cases, and review the intermediate appellate decisions of the BLM. Similarly, different BLM officials would investigate similar cases, make initial decisions, and render intermediate appellate determinations for the BLM. These obvious overlapping functions with the Solicitor's Office and the BLM generated confusion, criticism and lack of confidence in the adjudication of public land cases in the Department.7

The PLLRC Report was issued on June 20, 1970 and addressed these administrative law concerns broadly in its Introductory Summary as follows:

Our studies have convinced us that, with respect to lands retained in Federal ownership, the rules and regulations governing their use, to the extent that they exist, have not been adequate to fulfill the purpose; that they were promulgated without proper consultation with, and participation by, either those affected or the general public; that existing regulations are cumbersome; that the procedures for users or other interested parties to exercise their rights to seek or oppose the grant of interests in public land are likewise cumbersome as well as expensive with no assurance of objective, impartial consideration of appeals from, or objections to, decisions by land managers.

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We, therefore, recommend that:

Public land management agencies should be required by statute to promulgate comprehensive rules and regulations after full consideration of all points of view, including protests, with provisions for a simplified appeals procedure in a manner that will restore public confidence in the impartiality and fairness of administrative decisions. Judicial review should generally be available. (Emphasis added)8

In Chapter 16 of the PLLRC Report, entitled "Administrative Procedures," the PLLRC expanded on the above noted Introductory Summary Recommendation when it made the following specific recommendations:

Adjudication Procedures:

Recommendation 109: Congress should direct the public land agencies to restructure their adjudication organization and procedures in order to insure: (1) procedural due process; (2) greater third party participation; (3) objective administrative review of initial decisions; and (4) more expeditious decision making.9

The PLLRC Report noted that procedural problems in then existing adjudicative procedures were present in two areas: (A) informal and formal procedures for developing the factual record for decision; and (B) the appellate decision making structure as it bears on (1) separation of the adjudicatory function from other investigatory, advisory or program responsibilities, and (2) delays in rendering "final" decisions. To insure procedural due process it was recommended that Congress provide that applicants in informal procedures "be given full opportunity to participate in the making of a factual record to know its content, to offer rebuttal information, and to participate in any oral presentations."10 To enhance third party participation, it was recommended that Congress "require the agencies to give meaningful public notice of all proposed public land transactions to the maximum extent feasible, and to provide for the intervention and participation by interested economic competitors, state and local governments, and members of the public."11 To insure more objective administrative review of initial decisions, it was recommended that Congress provide "for Secretarial review adequately insulated from management officials and legal advisors who have participated in decisions below, except for direct open presentation

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of argument in support of their decisions."12 Finally, to insure more expeditious decision making, it was recommended that "the number of appeals that must be made to exhaust departmental remedies should be reduced to no more than two, and a time limit for disposition of cases should be imposed at each appellate level to expedite administrative and judicial review. After the first appeal there should be no further right of appeal unless timely granted in the discretion of the Secretary."13

The second specified recommendation in Chapter 16 of the PLLRC Report is the following:

Judicial Review:

Recommendation 110: Judicial review of public land adjudications should be expressly provided for by Congress.14

The PLLRC Report, while noting an apprehension about the adverse effect upon public land management programs from extensive litigation resulting from a general judicial relaxation of the requirements of "legal standing", recommended that "to minimize the dilatory effects of court involvement...that in general the availability of judicial review be limited to those parties who participated in the administrative proceedings for which review is sought."15


In response to previous Congressional legislative efforts16 and the PLLRC's recommendations concerning the insulation of Secretarial review/appellate functions from initial decisions of departmental officials, the Department created in January, 1970 the Office of Hearings and Appeals (OHA) in which the new Interior Board of Land Appeals (IBLA) was administratively located.17

The OHA performs the quasi-judicial responsibilities of the Department and is the "authorized representative of the Secretary for the purpose of hearing, considering and determining, as fully and finally as might the Secretary, matters within the jurisdiction of the Department involving hearings, and appeals and other review functions of the Secretary."18 The office includes the Hearings Division, comprised of administrative law judges (ALJs) who are authorized to conduct hearings in cases required by law to be conducted pursuant to 5 U.S.C., § 554 (adjudicatory

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hearings under the Administrative Procedure Act) and hearings in other cases arising under statutes and regulations of the Department, including rule-making hearing.19 The other components of OHA are the six (6) appeal boards which include the IBLA and the Interior Board of Surface Mining and Reclamation Appeals (BSMA).20 It should be noted that with one exception these appeal boards make "final" decisions for the Department21 , but their processing of cases and decisions remain subject to the supervisory authority of the Secretary.22

Since 1970, parties who have been aggrieved by the disposition of claims to public lands and of applications for leases, licenses, permits, easements and rights-of-way have had a right to appeal BLM decisions to the IBLA.23 The IBLA consists of seven (7) regular members, including the Chief Administrative Judge, plus the Director of the OHA who is an ex-officio member. Alternate members may be appointed by the Director of OHA. Cases are assigned on a rotation basis24 and the...

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