CHAPTER 7 ADMINISTRATIVE POLITICS AND NATURAL RESOURCES POLICY FORMATION

• Jurisdiction: United States

Natural Resources & Environmental Administrative Law and Procedure
(Nov 1999)
CHAPTER 7
ADMINISTRATIVE POLITICS AND NATURAL RESOURCES POLICY FORMATION
John D. Leshy
U.S. Department of the Interior
Washington, D.C.
Thomas L. Sansonetti
Holland & Hart
Cheyenne, Wyoming

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I. The Role of the Solicitor's Office in Department of the Interior Decisionmaking [see organizational chart attached as Appendix A]

A. The Department as a "commonwealth" not a unitary entity; composed of bureaus and agencies with disparate and sometimes conflicting missions and mandates. DOI does development, preservation, recreation, biodiversity, land, minerals, water, and Indian affairs.

B. Solicitor's Office is a centralized law office; part of the Office of the Secretary, and the ultimate client is the Secretary, not individual bureaus or agencies or programs.

C. The blurry line between policy and law; separating legal advice from policy advice (a cardinal sin: calling the latter the former). Differentiating the stupid from the unlawful. A decision may be one without the other—either way. Usually what is required on the law/policy continuum is a risk assessment; rarely clear answers on many issues being debated; law rarely forbids and commands a particular outcome; grays dominate, blacks and whites are rare.

D. Administrative "politics" defined in a small "p" sense—working through conflicts of values, disagreements on policies. Not partisan politics in a Republican/Democrat sense. Partisan politics are most relevant in positions on legislation. Much less partisan consideration in administrative policy formulation. Very broadly, of course, R's believe somewhat more in privatization and markets; D's are greener and more regulatory. But that's very shorthand and not a clearcut guide to results in any particular situation.

E. Personalities, chemistry, relationships. Solicitor traditionally part of inner circle, often a close confidante of Secretary. Along with Secretary, Deputy Secretary and Chief of Staff, sees everything, has overview perspective on Departmental activities. Troubleshooter, Jack of all trades, hardly foreign to policy involvement.

F. Babbitt DOI — fondness for law-trained people. (Long list among senior officials; Babbitt; Hayes, Shields, Barry (Frampton), Beneke (Rieke), Armstrong, Fry (Shea), Quarterman, R. Kennedy, Uram, Karpan, Counselors Heymann, Sax, McUsic, Doyle.

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Non-lawyers the exceptions, Garamendi, Jamie Clark (Beattie), Martinez (Beard), S. Baca, J. Baca. This is not threatening to our lawyers. Solicitor's office as a talent pool (Barry, Beneke, Shields; K. Henry to OSM, Laura Brown, Renee Stone). Law training — emphasis on process, analysis, organization, facility with language, writing, appreciation of nuance and compromise. BB management style: flexibility, meritocracy, speed.

G. The role of culture and tradition: contrast DOI lawyers' role with other Departments; e.g., Agriculture, which also has a central law office with disparate agencies. Look back to Nathan Margold and Felix Cohen.

II. A Case Study: Land Withdrawals and Antiquities Act Decisionmaking

A. Grand Staircase — personal policy involvement in Utah land management, predated DOI; worked with Secretary on Utah issues beginning in 1980s. Legal overlay to Grand Staircase; doing it right—but policy involvement preceded that. Aftermath-land use planning, road negotiations, state land exchange, mineral lease exchanges.

B. Current land protection proposals—BB trips, looking around the country where there are preservation impulses, past proposals and current threats and opportunities for the future, by legislative action (e.g., national conservation areas) or executive action (Antiquities Act). 1. Shivwits/Parashant, Grand Canyon Arizona Strip; 2. Carrizo Plain, CA, and other CA places; 3. Missouri Breaks; 4. Southwest Colorado; 5. Steens Mountain and Soda Mountain, Oregon. Local soundings, RAC involvement, talking with congressional delegations, possible administrative recommendations.

C. Antiquities Act under fire — congressional amendments, my testimony attached as Appendix B.

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