CHAPTER 5 FEDERAL AGENCY DECISION-MAKING: THE THREE BUMPER GUARDS
| Jurisdiction | United States |
(Feb 2019)
FEDERAL AGENCY DECISION-MAKING: THE THREE BUMPER GUARDS
former Deputy Solicitor for Indian Affairs and Deputy Director, Office of Indian Energy
U.S. Department of Energy
Of Counsel, Lewis Roca Rothberger Christie
Tucson, AZ 1
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PILAR THOMAS (Pascua Yaqui) is Of Counsel at Lewis Roca Rothgerber Christie LLP in Tucson Arizona, where she provides strategic legal advice to tribal governments and tribal enterprises on energy planning and policy, renewable energy project development and finance; federal and state energy regulatory, programs and policy efforts. Ms. Thomas previously served as the Acting Director and Deputy Director for the Office of Indian Energy Policy and Programs at the U.S. Department of Energy, where she was responsible for developing and implementing policy and program efforts within the department and across the federal government to achieve statutory policy objectives, particularly the promotion of energy development, electrification, and infrastructure improvement on tribal lands. She spearheaded federal agency efforts to coordinate and collaborate on tribal energy development efforts, in partnership with the White House Council on Native American Affairs, the Departments of the Interior, Agriculture, Commerce and Environmental Protection Agency. She is also the former Deputy Solicitor of Indian Affairs for the U.S. Department of the Interior, where she provided legal advice to the Secretary, Assistant Secretary-Indian Affairs, and other department officials on decisions related to tribes and matters related to federal Indian law, tribal law, administrative law, Indian lands and natural resources, treaty rights and water rights. She has served as the Interim Attorney General and Chief of Staff to the Chairwoman of the Pascua Yaqui Tribe, of which she is a member. In 2002, Pilar was appointed to the position of trial attorney in the U.S. Department of Justice, Environment and Natural Resources Division, Indian Resources Section. Her practice included Indian treaty rights, water rights, and regulatory litigation. Ms. Thomas graduated from the University of New Mexico School of Law, magna cum laude, with a certificate in Indian Law. She received her bachelor of arts in economics from Stanford University.
Introduction
Federal policy makers, lawyers, program staff, and other career personnel are all involved in the various types of decisions federal agencies make every day. Those types of decisions include, for example, Presidential Executive Orders, Secretarial Orders, rulemaking, informal adjudications, program development and design, and grants and contracts awards. This paper will discuss the author's view that whatever the decision to be made, there are three major bumper guards that typically control how these decisions are made. Those major bumper guards are: 1) federal law and regulation; 2) agency operating standards and internal manuals; and 3) policies and politics. I describe these as bumper guards because, again typically, they serve to contain the substantial discretion that many agencies have to implement their statutory responsibilities.
The first "bumper guard" on agency decision-making - at the heart of it - is the requirement to comply with statutory and regulatory requirements. Failure to follow the law, and rules that have the force of law, could result in agency action getting overturned. When interested parties challenge agency action, usually under the APA, the standard of review is whether the action was arbitrary and capricious, contrary to law, outside the agency's authority, among other legal standards.2
But agency decision-makers also are bound - if not legally, then practically - by a second "bumper guard": internal agency policies and procedures. These internal documents provide applicants, parties, and project proponents with the understanding of who is responsible to do what in the decision-making process, the steps that need to be taken internally, and may also fill in the gaps of existing regulations (especially when so many regulations have not been updated in years - if not decades).
Finally, the third "bumper guard" on agency decision-making is Administration policy toward, and sometimes the politics of, a particular decision or type of decision. This bumper guard is most relevant when the decision is discretionary in nature, and many additional issues and equities can influence the decision-maker.
To illustrate how these three "bumper guards" might work in action, this paper will describe the decision-making process for the Department of the Interior Bureau of Indian Affairs "Fee to Trust" application process.
Fee to Trust Applications
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Section 5 of the Indian Reorganization Act of 1934 (IRA) authorizes the Secretary of the Interior to place land into trust for the benefit of Indians and Indian Tribes.3...
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