CHAPTER 5 HEARINGS BEFORE THE DOI OFFICE OF HEARINGS AND APPEALS

• Jurisdiction: United States

Challenging and Defending Federal Natural Resource Agency Decisions
(Sep 2016)
CHAPTER 5
HEARINGS BEFORE THE DOI OFFICE OF HEARINGS AND APPEALS
Nancy S. Zahedi
Attorney
U.S. Department of the Interior, Office of the Solicitor
Sacramento, CA
Robert B. Firpo ¹
Attorney
U.S. Department of the Interior, Office of the Solicitor
Boise, ID

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NANCY S. ZAHEDI is an attorney with the United States Department of the Interior's Office of the Solicitor in Sacramento, California, where she serves as agency counsel for Bureau of Land Management offices in California and Nevada. Nancy received a B.A. from Stanford University, a Master in Public Policy from the John F. Kennedy School of Government, and her J.D. from the Georgetown University Law Center. Before joining the Solicitor's Office in 2000, Nancy worked for the U.S. Environmental Protection Agency in Washington D.C. for over a decade, spent two years in Guatemala working on the country's national environmental and natural resource plan, and was a Peace Corps Volunteer in Africa.

ROBERT B. FIRPO is an attorney with the United States Department of the Interior's Office of the Solicitor in Boise, Idaho. Bob received his B.A. from U.C.LA., and his J.D. from the University of California's Hastings College of the Law in San Francisco. After law school Bob clerked for judges on the Montana Supreme Court, the United States District Court for the Southern District of California, and the Ninth Circuit Court of Appeals. Bob joined the Solicitor's Office in 2009, and works primarily with BLM on grazing, wilderness, and sensitive wildlife issues (sage-grouse and bighorn sheep). He is married with two sons, and enjoys fly-fishing in the backcountry.

"A Practitioner's Perspective on Hearings Before the Department of the Interior"

Forward

In 2010, now retired Administrative Law Judge (ALJ) Robert G. Holt authored an exceptional article for the Rocky Mountain Mineral Law Foundation titled Practice Before the Departmental Cases Hearings Division, Office of Hearings and Appeals, U.S. Department of the Interior.² Judge Holt's paper covers critical ground from the perspective of an ALJ, highlights key regulations governing administrative proceedings, and provides background on just about everything that happens during the adjudication of cases at the Hearings Division. Judge Holt's comprehensive piece remains not just a worthwhile read, but a necessary desktop reference for any person practicing before the Department of the Interior. I encourage you to read and file that paper if you are interested in Interior's administrative processes and want to successfully navigate them.

When my colleague Nancy Zahedi and I were asked to present on "Hearings before the Department of the Interior's Office of Hearings and Appeals" as part of Rocky Mountain Mineral Law Foundation's Fall 2016 Special Institute, we came to the immediate realization that the ground had already been plowed by Judge Holt. Skipping the paper in favor of a power-point presentation to save time and avoid cribbing from Judge Holt's master-class presentation seemed

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the prudent course under the circumstances. But, as we discussed our experiences, Judge Holt's paper and the outlines of our oral presentation in more detail, it occurred to us that there might be room to tackle the same material covered by Judge Holt from the perspective of the practitioner. Life from the well in front of the bench does not, after all, always reflect life behind it.

And so I present this paper as a companion to Judge Holt's seminal piece that focuses on hearings from the practitioner's perspective, and offers views and practical tips that might comprise the kind of advice I would offer to colleagues preparing for their first case before the Hearings Division. There was no way to construct this paper without rehashing some of the basic material covered by Judge Holt, and for that he deserves the utmost credit. At the same time, I hope this paper's differing perspective offers something unique and worthwhile for the practitioner looking to ease nerves before a first appearance or, perhaps, simply looking to navigate the administrative process more efficiently. If either of those goals is even partially met, it will have been a successful effort.

Introduction

So what is a "hearing," anyway? A full-blown trial? An evidentiary hearing with witnesses and cross-examination? Perhaps any fair process in front of a hearings officer? All of these seem legitimate answers to this basic, but surprisingly difficult question, and all of them are more or less correct. Still, the question highlights something important and fundamental--if we are going to focus on "hearings" before the Department of the Interior, it is necessary to describe what we are talking about, and understand what this word "hearings" might or could mean.

I know that when I first started at Interior, I thought a "hearing" was synonymous with oral argument or an in-person trial-like evidentiary hearing. This was somewhat concerning to a relatively new lawyer like my former self, since I had only experienced such processes from the perspective of an elbow law clerk in federal court, and I had not yet endured the sometimes nerve racking trial-work as a practitioner. But after handling administrative cases for a couple years, I quickly learned a practical lesson on Interior administrative proceedings: not every case assigned to an administrative law judge at the Hearings Division actually has an in-person trial-like evidentiary hearing. Sure, some cases do, and certain types of cases are almost assured of an evidentiary hearing absent settlement. Yet, the fact remains that many types of cases, and theoretically all cases, could be adjudicated on the papers and without a hearing under certain circumstances.

One question that comes up regularly is how it can be possible that a trial-like evidentiary hearing could be avoided when a "hearing" is required by statute and invokes images of trial-like proceedings.³ The answer is relatively simple. The basic goal and purpose of any hearing or

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hearings process is to finally determine a set of material facts governing a controversy so that a judge or judges can apply the law and render a decision.⁴ Thus, no matter the subject, a case ought to be amenable to resolution as a matter of law without a bench trial or evidentiary hearing if the judge or parties determine that there are no genuine disputes regarding the material facts.⁵ When the only thing left to do is apply law to facts, a case ought to be handed off to a judge with helpful briefing--not advance to a trial.

Given this reality, many administrative cases are adjudicated on summary judgment at the Hearings Division even where the relevant statute or regulation suggests a "hearing" to resolve the matter.⁶ Accordingly, the practitioner should not necessarily think of "hearings" before the Department of the Interior as a one-way elevator to an open-court evidentiary hearing, as that narrow focus may lead the practitioner to miss opportunities for streamlined adjudication.

So then how should a practitioner define "hearings" before the Department of the Interior? My advice is this: View "hearings" before the Department as the totality of the proceedings before the Hearings Division, which may or may not include an in-person trial-like evidentiary hearing, and where the goal is to identify the critical material facts underlying the controversy so that the Department's ALJs (and, in any subsequent appeal, Administrative Judges (AJs)) can apply the law and reach a decision.⁷ Keeping this practical view in mind will help the practitioner evaluate the potential work involved in any particular case, while also allowing the practitioner to help the administrative law judge efficiently adjudicate the case at bar.

Who Oversees Hearings at Interior, and How Do Cases Get There

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1. Interior Structure & Organization

The Secretary of the Interior oversees all bureaus and branches of the Department of the Interior. Keep this in mind when participating in administrative cases before the Department, because while it is exceedingly rare, the Secretary can theoretically take jurisdiction of and resolve any case, for any reason, and at any stage in the proceedings.⁸ The power of the Secretary to take jurisdiction of any case is a good reminder that Interior administrative proceedings are nestled in the Executive Branch of government, not the Judicial Branch. See Illustration # 1 (U.S. Department of the Interior Organization Chart).

Illustration #1 (U.S. Department of the Interior Organization Chart)

A number of Assistant Secretaries support the Secretary in managing the Department, but the most important one for the purpose of this paper is the Assistant Secretary for Policy, Management and Budget. See Illustration #1. That is because this Assistant Secretary oversees

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the Office of Hearings and Appeals, the Bureau within Interior that adjudicates all administrative appeals.⁹ See Illustration # 2 (Assistant Secretary for Policy, Management and Budget Organization Chart).

Illustration #2 (Assistant Secretary for Policy, Management and Budget Organization Chart)

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The Office of Hearings & Appeals (OHA) is led by a Director, and otherwise consists of a number of different Boards and Divisions that hear different kinds of cases, perform different functions, and adjudicate different stages of administrative proceedings.¹⁰ See Illustration #3 (Office of Hearings & Appeals Organization Chart). Of principal importance to this paper is the Departmental Cases Hearings Division (Hearings Division), the OHA division that administers fact-finding hearings required by statute, rule, or practice. Because the Hearings Division holds "hearings" in the context of federal natural resource decisions, this paper focuses...