CHAPTER 4 PROCESS AND PRACTICE TIPS FOR APPEALS TO THE INTERIOR BOARD OF LAND APPEALS

• Jurisdiction: United States

Challenging and Defending Federal Natural Resource Agency Decisions
(Sep 2016)
CHAPTER 4
PROCESS AND PRACTICE TIPS FOR APPEALS TO THE INTERIOR BOARD OF LAND APPEALS
Hadassah M. Reimer ^*
Of Counsel
Holland & Hart LLP
Jackson, WY

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HADASSAH (DESSA) M. REIMER is an attorney in the Jackson Hole, Wyoming office of Holland & Hart LLP. Her practice focuses on federal environmental regulation and litigation before the Interior Board of Land Appeals and the federal courts, including environmental impact assessment, endangered species, and public land permitting requirements. Dessa also has an active Indian law practice. Dessa represents a variety of clients including conventional and renewable energy developers, mining companies, and water resource providers, as well as Indian tribes. Dessa has co-authored three papers for past RMMLF Annual Institutes, served as chair of the Public Lands section for the 2013 Annual Institute, and currently serves as a Trustee for the Foundation.

The Interior Board of Land Appeals: Procedure and Practice

I. Introduction

In 1993, the Honorable David L. Hughes, Administrative Judge for the Interior Board of Land Appeals ("IBLA" or the "Board") wrote the definitive work on practice and procedure before the Board.¹ A decade later, the Honorable H. Barry Holt, Chief Administrative Judge for the Board at the time, reexamined the Board's practice and procedure with an eye toward opportunities toward increased efficiency.² Both articles are must-have references for lawyers practicing before the IBLA. However, in the intervening years, the IBLA's role has continued to expand as more challenges are raised as administrative appeals, and the IBLA's rules have been adapted to reflect its increasing judicial function.³ Despite a set of updated rules and a growing body of precedent, important questions remain about the scope and standard of the Board's review, the timeframe in which it renders its decisions, and the appropriate balance of its judicial and administrative functions. This paper sets out the rules of practice before the Board and also explores some of the areas of remaining uncertainty for practitioners before the IBLA.

II. The IBLA--A Brief History

The history of administrative appeals within the Department of the Interior dates back to its creation in 1849.⁴ At that time, a person could appeal any decision within the Department of the Interior to the Secretary. In 1947, when the Bureau of Land Management ("BLM") was created, the Department of the Interior set up a two-tiered appeal system--appeals of BLM state office decisions were heard by the BLM Director and appeals of the BLM Director's decisions were then heard by the Office of the Solicitor.⁵ The fact that the Solicitor's Office, the department charged with representing BLM's interests, was the same body responsible for reviewing BLM appeals, invoked little confidence in the impartiality of the system for appellants. In response, in 1964, Congress appointed the Public Land Law Review Commission. Its charge was broad--to study regulations for retention, management, and disposition of public

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lands--but it also pointed out flaws in the appeal system.⁶ It criticized the two-tier system as too costly and inefficient and the apparent lack of objectivity of the Solicitor's Office as the final appellate body. In response, in 1970, the Department of the Interior created the Office of Hearings and Appeals, and within it, the IBLA. Today, six administrative judges sit on the Board and they hear a wide variety of appeals ranging from mineral development decisions to rights-of-way for renewable energy projects.⁷ Over the past ten years, approximately 290 cases have been filed with the Board each year.

III. IBLA Procedure

A. The Board's Jurisdiction

The Office of Hearings and Appeals within the Department of the Interior consists of: (1) the Hearings Divisions made up of administrative law judges that hear contested case proceedings that proceed in a quasi-trial-like setting; and (2) the appeals Boards, including the Interior Board of Indian Appeals and the IBLA. The jurisdiction of the Board is circumscribed by regulations--"The Board decides finally for the Department appeals to the head of the Department from decisions rendered by Departmental officials relating to (i) The use and disposition of public lands and their resources . . .; (ii) the use and disposition of mineral resources in certain acquired lands of the United States and in the submerged lands of the Outer Continental Shelf; and (iii) the conduct of surface coal mining under the Surface Mining Control and Reclamation Act of 1977."⁸

The Board lacks jurisdiction to hear some cases.⁹ Most notably, BLM land use planning decisions under the Federal Land Planning and Management Act ("FLPMA") are subject to protest to the BLM State Directors, but cannot be appealed to the Board. The Board explains, "[s]ince adoption of such a plan is to establish general management policy rather than to implement decisions that affect specific parcels of land, approval of a plan is subject only to protest to the Director, BLM, whose decision is final for the Department."¹⁰

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The Board's authority to decide appeals of BLM decisions derives from the functions of the Secretary of the Interior. For that reason, the Secretary retains authority "to take jurisdiction at any stage of any case before any employee . . . of the Department, including any administrative law judge or board of the Office . . . and render the final decision in the matter."¹¹ The Secretary also has the authority to review and reconsider any Board decision.¹² Similarly, the BLM Director, under the authority delegated by the Secretary, can "assume jurisdiction of any case" before the Board or review any Board decision.¹³ According to the Board, the secretarial authority to assume jurisdiction of a case before the Board has not been exercised in recent years. In any case where the initial agency decision is made at the Secretarial or Director level, that decision is the final agency action and there is no appeal to the Board before the issue becomes ripe for judicial review in the federal courts.¹⁴

B. Filing an Appeal

1. Pre-Appeal Requirements

While some BLM decisions can proceed directly to Board appeal, others require the aggrieved party to request an intermediate review below. For instance, forest management decisions must be protested to the authorized officer, who issues a protest decision, that is then appealable to the Board.¹⁵ Grazing decisions are first protested to the authorized officer, who issues a decision, which can then be appealed to the Office of Hearings and Appeals and set for hearing before an administrative law judge, after which appeal can be taken to the Board.¹⁶ Decisions relating to mineral leasing proceed first by protest to the State Director, followed by appeal to the Board.¹⁷ A challenge to any other decision relating to oil and gas lease or mineral operations and approvals is first filed with the State Director as a request for review, which State Director decision is then appealable to the IBLA.¹⁸

Decisions that can proceed directly to IBLA appeal are those where the State Director makes the decision in the first instance. In general, when a BLM decision is subject to IBLA appeal--i.e., a decision on State Director review or by the authorized officer on a protest--BLM will include language in the decision notifying the party of the right to appeal to the IBLA. However, the lack of appeal language in the decision does not preclude appeal to the IBLA where the Board has jurisdiction, nor does the inclusion of such language guarantee that an appeal is available where the Board would not otherwise have jurisdiction.

2. Who Can Appeal?

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IBLA appellants must establish standing by demonstrating: (1) that the challenger is a "party" to the case; and (2) that the challenger is "adversely affected" by the agency's decision.¹⁹

First, a "party to the case" is defined by the regulations as "one who has taken action that is the subject of the decision on appeal, is the object of that decision, or has otherwise participated in the process leading to the decision under appeal, e.g., by filing a mining claim or application for use of public lands, by commenting on an environmental document, or by filing a protest to a proposed action."²⁰ For entities that have requested BLM authorization for a particular action--i.e., an Application for Permit to Drill an oil and gas well, approval of a mining Plan of Development, or request for a right-of-way--it is clear that as the object of the decision, those entities are parties with the right to appeal. For others that may be interested in the outcome of a BLM approval process, but are not the entity applying for authorization, some form of participation must occur prior to the decision to establish party standing to challenge the decision. The party is limited on appeal to raising only those issues raised during prior participation, or that arose after the opportunity for public participation had closed.²¹

Where the BLM decision is subject to notice and comment procedures under the National Environmental Policy Act ("NEPA") or otherwise, the avenue for participation may be easy. However, for less significant decisions that do not trigger formal public notice and comment, achieving third-party participation may be more difficult. In those cases, interested parties may be required to take the initiative to track the decision-making process and provide comments to the agency, even if informally, prior to the decision under review.

Second, a party to a case must establish that it was adversely affected by the BLM decision below--that it "has a legally cognizable interest, and the decision on appeal has caused or is substantially likely to cause injury to that interest."²² While the...