CHAPTER 2 BACK TO THE FUTURE? A CHRONICLE OF PUBLIC LAND APPEALS AND IBLA CASELOAD MANAGEMENT

• Jurisdiction: United States

Natural Resources and Environmental Administrative Law and Procedure II
(Sep 2004)
CHAPTER 2
BACK TO THE FUTURE? A CHRONICLE OF PUBLIC LAND APPEALS AND IBLA CASELOAD MANAGEMENT
H. Barry Holt ¹
Chief Administrative Judge
Interior Board of Land Appeals
Arlington, Virginia

H. Barry Holt is the Chief Administrative Judge for the U.S. Department of the Interior Board of Land Appeals, a board of ten administrative judges who decide appeals of natural resources, land use, and mining decisions by Department of Interior agencies. Judge Holt became IBLA's Chief Administrative Judge in October 2003, after 16 years in private law practice, most recently as a partner with the firm of Gust Rosenfeld PLC in Phoenix, Arizona. His natural resources and environmental law practice included advising mining, municipal, and real estate clients on environmental compliance, permitting, historic preservation, and Indian law matters. Judge Holt is the principal author of Digest of American Indian Law and has written and lectured extensively on environmental, historic preservation, and Indian law issues. Prior to and during law school, he spent 8 years as Regional Archeologist with the Bureau of Indian Affairs' Navajo and Portland, Oregon, Regional Offices.

Judge Holt is a 1987 cum laude graduate of the Northwestern School of Law of Lewis & Clark College in Portland, Oregon, where he was Notes and Comments Editor of Environmental Law, a Jaureguy Scholar, and was the recipient of the Bernard F. O'Rourke Natural Resources Award. He received his Ph.D. in Anthropology from the University of Texas at Austin in 1979, M.A. in Latin American Studies from Tulane University in New Orleans, Louisiana, in 1974, and received his undergraduate degree in Latin American Studies from Occidental College in Los Angeles, California, in 1973.

The world is full of people whose notion of a satisfactory future is, in fact, a return to the idealized past.

--Robertson Davies, 1960

Events in the past may be roughly divided into those which probably never happened and those which do not matter.

--William Ralph Inge, 1950

The Interior Board of Land Appeals ("IBLA") has been the principal entity within the United States Department of the Interior (the "Department") adjudicating public land disputes for 34 years. In that time, the IBLA has survived many political administrations, seen its membership change, and struggled with its productivity. Despite those challenges, the IBLA today still speaks finally for the Secretary of the Interior on public land appeals. This longevity has not been without its controversies. As the prominent last stop on the path to judicial review, the IBLA is under constant scrutiny and incessant criticism.

Although many problems have plagued its long existence, IBLA's greatest challenge has been to provide timely and competent adjudication of administrative appeals. Competence is a never-ending issue for every adjudicatory body, and IBLA is no exception. But, that issue often depends upon who is chosen to adjudicate, and the reform of administrative processes usually has limited effect on competence. Timeliness, however, may be affected by administrative processes, and is a goal that all well-intentioned public service organizations strive to achieve. Again, IBLA is no exception. IBLA has long struggled with disposing of appeals timely and efficiently. Efforts at reforming its processes have met only limited success. The struggle continues to this day.

The timely disposition of public land appeals has a long history. IBLA's current backlog of appeals and delays in issuing decisions is only the most recent manifestation of a legacy as old as the public lands themselves. In fact, the creation of the Department's Office of Hearings and Appeals (OHA), and along with it the creation of IBLA, was an effort to solve a number of perceived problems with public land appeals. The timeliness of decisions was one of the most important problems IBLA was expected to resolve. IBLA now is in the process of addressing this problem anew, and this article is an effort to explain the new approaches, and to place the problem and the possible solutions in an historical context.

This article chronicles IBLA's efforts to reform its procedures and manage its caseload. To provide as thorough a picture as possible, the article begins at the beginning. IBLA's caseload is a product of the government's efforts to resolve claims for public lands, and those efforts are grounded in the birth of the public lands themselves. Caseload management and timeliness have been problems since the beginning of the United States government under the Constitution, and the history of public land appeals demonstrates that IBLA's struggles are part of a long legacy. This article begins with a description of that legacy.

There are many aspects of public land appeals that this article does not address. The important issues of due process hearings, contract claims, and claims involving Native American issues are not addressed. Instead, the focus is on the Department's administrative review process as implemented by the IBLA. OHA consists of several different offices, each with its own responsibilities, including the Interior Board of Contract Appeals, the Interior Board of Indian Appeals, the Hearings Division (populated by administrative law judges who hold hearings and make decisions that are appealable to the IBLA and the Board of Indian Appeals), and the Director's Office itself. This article, however, focuses on IBLA as the entity created to handle the lion's share of public land appeals. Also, some of the descriptions of IBLA operations that are not specifically attributed or that are not the personal observations of the author were compiled from the author's recent and continuing study of IBLA folklore, ² which generally is conveyed and maintained orally and behaviorally and, therefore, is virtually impossible to attribute to a specific source.

Changes being made at IBLA today show initial indications of improving productivity and timeliness, but only time will tell us if we have been successful. Throughout the history of public land appeals, Congress and the Executive recognized the difficulties of managing the huge volume of public land appeals, and reform efforts became almost constant to try and fulfill their expectations of a system that in the future would ensure timely and equitable decisions on public land issues of great concern to the public. Many of IBLA's "new" administrative procedures are the same as or similar to procedures tried in the past, once again implemented to fulfill those expectations. So, in a sense, the IBLA is trying to return to that future envisioned by the Congress for so many years. Optimistically, IBLA's future has just begun.

The future is here. It's just not widely distributed yet.

--William Gibson

I. PRELUDE

A. Creation of the Public Domain

The history of the public domain of the United States begins before the birth of the nation itself. Colonial charters from the English Crown often contained grants of unoccupied western lands extending vaguely beyond the defined limits of the colony. For example, the second Charter of Virginia, granted in May 1609, defined the colony as extending far beyond what is now known as the Commonwealth of Virginia.

Sec. 6 And we do also, of our special grace, &c. give, &c. unto the said treasurer and company, &c. all those lands, countries, and territories, situate, lying, and being, in that part of America, called Virginia, from the point of land called cape or point Comfort all along the seacoast to the northward, two hundred miles, and from the said point of cape Comfort, all along the seacoast to the southward, two hundred miles; and all that space and circuit of land lying from the seacoast of the precinct aforesaid, up into the land throughout from sea to sea, west and northwest; and also all the islands lying within one hundred miles along the coast of both seas of the precinct aforesaid. ³

Although often these western territories were purported to extend all across the continent, to the Pacific Ocean, the end of the French and Indian War ⁴ saw England more interested in securing its claims to the more accessible portions of North America. So, with the Treaty of Paris (February 10, 1763), England agreed to limit the extent of its sovereignty, and the colonial grants, from the Atlantic to the Mississippi River, which then became the western boundary of the English colonies.

Article VII. In order to reestablish peace on solid and durable foundations, and to remove for ever all subject of dispute with regard to the limits of the British and French territories on the continent of America; it is agreed that for the future, the confines between the dominions of his Britannick Majesty and those of his Most Christian Majesty, in that part of the world, shall be fixed irrevocably by a line drawn along the middle of the River Mississippi, from its source to the river Iberville, and from thence, by a line drawn along the middle of this river, and the lakes Maurepas and Pontchartrain to the sea; and for this purpose, the Most Christian King cedes in full right, and guaranties to his Britannick Majesty the river and port of the Mobile, and every thing which he possesses, or ought to possess, on the left side of the river Mississippi, except the town of New Orleans and the island in which it is situated, which shall remain to France.... ⁵

With the War of American Independence, these lands west to the Mississippi River took on greater importance. Not only were they considered a great prize for whichever antagonist could take and hold them, but as the war drew to a close, the nascent states saw their western territories as valuable bargaining chips for securing their positions within the fledgling United States.

Those states with territories extending westward ⁶ were able to use them to...