CHAPTER 4 DEFENDING FEDERAL DECISIONS AND PERMITS: PRACTICAL TACTICS FOR THE INTERESTED PARTY

• Jurisdiction: United States

Natural Resources and Environmental Administrative Law and Procedure II
(Sep 2004)
CHAPTER 4
DEFENDING FEDERAL DECISIONS AND PERMITS: PRACTICAL TACTICS FOR THE INTERESTED PARTY
Ezekiel J. Williams
Arnold & Porter LLP
Denver, Colorado

Ezekiel J. Williams is an attorney with Arnold & Porter LLP in Denver, Colorado. Zeke specializes in litigation and administrative law involving oil and gas, environmental, natural resources, and federal public lands issues.

Zeke's clients include oil and gas companies, mining companies, ski areas, land exchange proponents, citizen groups, trade associations, private developers, and other entities with interests in public lands and environmental issues. He has helped clients obtain and defend federal decisions and permits, including oil and gas drilling permits, leasing decisions, Clean Water Act NPDES discharge permits, 404 permits, land exchange authorizations, special use permits and authorizations, and other records of decision. He regularly advises clients on environmental permitting, environmental due diligence, natural resources development, administrative agency proceedings, and litigation.

Zeke is an adjunct professor of Environmental Law and Natural Resources Law at the University of Denver College of Law, and speaks on natural resources and environmental issues at bar associations and conferences. He graduated in 1994 from the University of Denver College of Law and clerked for the Honorable Bobby R. Baldock of the United States Court of Appeals for the Tenth Circuit.

I. Introduction

II. Administrative Agency Proceedings

A. Identify Opponents at the Outset & Adjust Strategy

B. Know the Rules

C. Meetings With Agency Staff & Participating in Agency Proceedings

D. Prepare Written Comments & Rebut the Opponents' Comments

E. Build a Strong Administrative Record

F. Administrative Appeal Tactics

G. Settlement During Agency Proceedings

III. Litigation

A. Scope of Participation in Litigation

1. Rely on the DOJ to Defend the Agency

2. Participate as an Amicus Curiae

3. Intervene as a Party Defendant Under Fed.R.Civ.P.2 4

B. Intervention Standard Under Fed.R.Civ.P.2 4

C. Potential Obstacles to Intervention as a Party Defendant

D. Briefing on the Merits

E. Working With the Department of Justice

F. Give the Court a Way to Resolve the Case Without Reading the Record

G. Supplementing the Administrative Record

H. Settlement

IV. Conclusion

I. INTRODUCTION

Federal agencies regulate the development of natural resources and public lands under a spectrum of laws. A single development project may require several federal permits or decisions, often from different agencies with different statutory missions. An additional decision layer exists on public lands where the federal land management agency may be required to prepare a programmatic land use decision and environmental review document before even processing proposals to take site-specific action.

Consider a natural gas well on public lands managed by the Bureau of Land Management ("BLM") within the Department of the Interior. Before the well may be drilled, the following federal authorizations may be required: (i) a decision by the BLM authorizing the issuance of oil and gas leases under the Mineral Leasing Act, 30 U.S.C. §§ 26; (ii) an environmental impact statement ("EIS") or environmental assessment ("EA") addressing the reasonably foreseeable environmental effects of oil and gas leasing along with alternatives, prepared under the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 to 4370f; (iii) a record of decision ("ROD") adopting a programmatic resource management plan under the Federal Land Policy Management Act ("FLPMA"), 43 U.S.C. § 1712, setting forth the mitigation measures and conditions of approval for natural gas development on federal oil and gas leases; (iv) a BLM decision approving an application for permit to drill ("APD") the natural gas well; (v) an EIS or EA prepared under NEPA analyzing the site-specific environmental effects of the natural gas well and alternatives to drilling the well; and (vi) a biological opinion prepared by the United States Fish and Wildlife Service under Section 7 of the Endangered Species Act, 16 U.S.C. § 1536, assessing the effects of the natural gas well on threatened and endangered species and their critical habitat.

That long-winded list is not exhaustive. Depending on the circumstances, other federal approvals may be required to drill and complete the gas well -- such as a right-of-way issued by the BLM under the Mineral Leasing Act, 30 U.S.C. § 185 or a permit to discharge dredge and fill materials into waters of the United States issued by the United States Army Corps of Engineers ("Corps") under Section 404 of the Clean Water Act, 33 U.S.C. § 1344. State and local government permits add to the list. There are many examples of federal permits and decisions involved in natural resources or public lands development apart from the hypothetical natural gas well considered here. Some appear in the margin. ¹

A private entity seeking to develop natural resources or to undertake a project on public lands must secure the requisite federal decisions and permits. That can be an formidable task. Substantial resources are devoted to obtaining permits, decisions, and approvals. Those authorizations are prerequisites to the success of larger projects and ventures. Business plans turn on obtaining (and keeping) a permit by a date certain. Considerable capital investment may be made based upon an authorization once it is in hand.

A permit in hand, however, is not cloud free. Federal permits, decisions, and approvals are commonly subject to internal administrative appeal or review. ² And a final agency decision to issue a federal permit or decision is usually subject to judicial review in United States District Court under the provisions of the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 to 706. A district court's decision on judicial review is appealable to a United States Court of Appeals, 28 U.S.C. § 1291, and thereafter certiorari review in the United States Supreme Court is available, id. § 1254.

All of this is relevant because natural resources development, particularly on public lands, is controversial. Conservation groups, citizen groups, and others challenge permits and decisions issued by federal agencies by seeking administrative review and filing actions for judicial review of agency action under the APA. These actions are common. Conservation groups have filed administrative appeals challenging oil and gas lease sales, ³ BLM decisions approving APDs ⁴ and mining plans of operations, ⁵ ski area expansions, ⁶ timber sales, ⁷ and amendments to BLM and Forest Service resource management plans. ⁸ There are many other examples.

Third party challenges are not limited to administrative actions. Conservation groups and others have sought to delay or prevent natural resource development projects and other activities on public lands by instituting litigation against the federal agencies that authorized the targeted actions under the judicial review provisions of the APA. Examples include lawsuits challenging: the Department of the Interior's approval of a development plan for offshore oil drilling; ⁹ the BLM's approval of an APD; ¹⁰ the Corps' issuance of a permit for the discharge of dredge and fill materials under Section 404 of the Clean Water Act; ¹¹ the Forest Service's analysis under NEPA of a proposed gold mine plan of operations; ¹² ski area expansions on National Forest System lands; ¹³ and decisions by the BLM or Forest Service adopting resource management plans for public lands to guide future natural resource development projects. ¹⁴ Again, this list is merely illustrative and numerous other examples exist.

Actions like those identified above challenge different authorizations by different agencies involving different environmental resources. They share, however, a common thread: the ultimate objective of most suits challenging the issuance of a federal permit or decision is not the defendant federal agency but the natural resources project or use of public lands authorized by the agency. By petitioning for administrative review or filing suit against the federal agency, the petitioners seek to delay or prevent action by third parties -- the permit holder or beneficiary of the decision. The permit holder is often the real target, not the agency. ¹⁵ Merely filing an administrative or judicial challenge impacts the permit holder by increasing uncertainty, delay, and expense. And a successful challenge -- even if it only requires the agency to undertake more analysis or process before reissuing the permit -- may threaten the viability of the underlying project or prevent it entirely.

Permit applicants, then, have a great stake in ensuring the integrity and defensibility of the administrative agency proceedings in which their permits are issued. Once those permits or decisions issue, the underlying capital investment and the fate of a natural resources development venture merit defending the agency's action against challenges by third parties.

This paper identifies practical strategies for permit applicants and beneficiaries of federal decisions to defend their federal authorizations. It provides an overview of common issues and obstacles encountered at federal administrative agencies, during administrative appeals, and in actions for judicial review. Part II addresses practical tactics for administrative agency proceedings, including in agency appeals. Part III identifies strategies for actions for judicial review in the district court under the APA, including issues encountered in intervening to defend the agency. (This paper assumes that the reader is familiar with basic administrative agency procedures and challenges to agency action under the APA.) This paper does not address litigation beyond the district court...