CHAPTER 8 WELCOME TO THE THUNDERDOME--ADMINISTRATIVE APPEALS AND NATURAL RESOURCES

• Jurisdiction: United States

Natural Resources Development and the Administrative State: Navigating Federal Agency Regulation and Litigation
(Feb 2019)
CHAPTER 8
WELCOME TO THE THUNDERDOME ¹ --ADMINISTRATIVE APPEALS AND NATURAL RESOURCES
Deana M. Bennett
Partner, Modrall Sperling
Albuquerque, NM

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DEANA M. BENNETT is a Shareholder with the law firm of Modrall Sperling, in Albuquerque. Deana's practice focuses on federal environmental law and federal Indian law. Deana's experience includes permitting and environmental compliance under the National Environmental Policy Act, the Endangered Species Act, and other related federal statutes. Her experience also includes working with renewable resource developers with siting issues on public, tribal, state, and local land. It is not surprising that Deana's practice focuses primarily on public lands. Deana calls the West home, from New Mexico to Alaska. Her early childhood was spent travelling in a Volkswagen bus from Yellowstone National Park to Everglades National Park, where her father was a Park Ranger. After leaving the Park Service, her father worked for the Bureau of Land Management until he retired. Deana is a true coal miner's daughter; her mother worked in an underground coal mine in Wyoming for several years, while her father attended the University of Wyoming. Before attending law school, Deana retraced some of her childhood adventures--working in Yellowstone, working at a ski area in Utah, and working on a luxury passenger train in Alaska, where she bought her own 1979 Volkswagen bus.

I. INTRODUCTION²

So, you received an adverse agency decision--now what? Even worse, you received a favorable decision that you just know is going to be appealed. What do you do? Pick a fight?³ Follow the rules?⁴ If only it were that easy and that simple. To help navigate the Thunderdome⁵ of agency appeals, this paper provides an overview of the ways by which a party may seek review of any agency action, both at the agency level and, where applicable, an appellate body. This paper begins with challenges that can be brought to Bureau of Land Management ("BLM") decisions and then turns to potential challenges to Bureau of Indian Affairs ("BIA") decisions. Finally, this paper discusses avenues to challenge United States Forest Service ("USFS") decisions.

II. CHALLENGES TO BUREAU OF LAND MANAGEMENT DECISIONS AT THE AGENCY LEVEL AND AT THE INTERIOR BOARD OF LAND APPEALS

"The BLM is responsible for managing nearly 250 million surface acres and 700 million subsurface acres, located primarily in 12 western states, including Alaska."⁶ The BLM approves rights-of-way and leases pursuant to several statutes and regulations that relate to natural resource and energy development on federal lands. BLM decisions likely to be appealed administratively or to the Interior Board of Land Appeals ("IBLA") are leasing and right-of-way decisions under the Mineral Leasing Act of 1920 ("MLA")⁷ and right-of-way decisions under the Federal Land Policy Management Act ("FLPMA").⁸

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A. Overview of BLM Statutory and Regulatory Authorities Relating to Natural Resource Development on Public Lands

Certain BLM decisions are subject to immediate appeal to the IBLA, while other BLM decisions require administrative review prior to review by the IBLA.⁹ Part II.A.1 of this paper discusses certain types of BLM decisions that must first be administratively reviewed before an appeal to the IBLA can be brought. Part II.A.2 briefly discusses examples of BLM decisions that are subject to immediate appeal.

1. BLM Decisions Requiring Intermediate Review Before IBLA Review

Certain BLM decisions made under the MLA are subject to intermediate review prior to IBLA review.

a. MLA Lease Sales:

Lease sales are posted pursuant to Notice of Competitive Lease Sales, and must be posted at least 45 days before the start of the lease sale.¹⁰ A 10-day protest period begins the day the sale notice is posted.¹¹ Protests must follow certain requirements or be subject to summary dismissal. According to the website for the BLM New Mexico State Office,¹² a hard copy of the protest must be mailed or hand delivered to the State office no later than the close of business (4:30 p.m. Mountain) on the last day of the protest period. The protest must include the name and address of the protesting part, and the relationship of the signing party to any association or group. The protesting party must disclose its interest in the parcel, and include a statement of reasons supporting the protest. "A decision to deny or dismiss a protest will advise the protesting parties of their right to appeal to the Interior Board of Land Appeals (IBLA) and will state that an appeal will not automatically halt the auction process."¹³

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b. MLA Post-Sale Compliance Issues

An operator may seek State Director review of a notice from an authorized officer asserting that the operator failed to comply with, for example, the lease terms or the regulations.¹⁴ Pursuant to the regulations, "[a]ny adversely affected party that contests a notice of violation or assessment or an instruction, order, or decision of the authorized officer issued under the regulations in this part, may request an administrative review, before the State Director, either with or without oral presentation."¹⁵ The request must be filed in writing with the State Director within 20 business days of the date the notice was received.¹⁶ The State Director will issue a final decision within 10 business days of either the receipt of a complete request for administrative review or the oral presentation.¹⁷

Any party who is adversely affected by the State Director's review of a notice of violation or assessment or of an instruction, order, or decision may appeal may appeal that decision to the IBLA pursuant to 43 CFR Part 4.¹⁸ Although the decision is not automatically stayed, a party may petition the IBLA for a stay.¹⁹ The standards for granting a stay are familiar:

(1) The relative harm to the parties if the stay is granted or denied,

(2) The likelihood of the appellant's success on the merits,

(3) The likelihood of irreparable harm to the appellant or resources if the stay is not granted, and

(4) Whether the public interest favors granting the stay. ²⁰

Except under certain circumstances, an appeal "shall not result in a suspension of the requirement for compliance with the order or decision from which the appeal is taken."²¹ A person aggrieved by a final order under Part 3165 may seek judicial review in the United States District Court for the judicial district in which the alleged violation occurred.²² Judicial review based on the

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administrative record, not de novo review.²³ An action seeking district court review must be filed within 90 days after issuance of the final decision.²⁴

2. BLM Decisions Subject to Immediate Appeal to the IBLA

a. MLA Leases

The MLA authorizes the BLM to issue leases for oil and gas on public domain lands²⁵ and lands returned to the public domain.²⁶ A decision rejecting an offer to lease or issuing a lease with stipulations recommended by the surface managing agency may be appealed to the IBLA under 43 C.F.R. Part 4.²⁷

b. MLA Rights-of-Way

Under the MLA, the BLM may issue grants of rights-of-way for "pipelines to transport oil or gas."²⁸ For purposes of the MLA, a grant is "any authorization or instrument BLM issues under section 28 of the Mineral Leasing Act, 30 U.S.C. 185, authorizing a nonpossessory, nonexclusive right to use Federal lands to construct, operate, maintain, or terminate a pipeline."²⁹ The term "grant" "does not include authorizations issued under FLPMA.³⁰ A grant from BLM for an oil and gas pipeline is required to cross Federal lands under BLM's jurisdiction or lands under the jurisdiction of two or more Federal agencies.³¹

Appeals of BLM MLA right-of-way decisions are governed by the 43 C.F.R. Part 4 regulations.³² Importantly, "[a]ll BLM decisions under this part remain in effect pending appeal

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unless the Secretary of the Interior rules otherwise, or as noted in this part."³³ An appellant may petition for a stay of the decision.³⁴

c. FLPMA Rights-of-Way

The BLM, pursuant to FLPMA, is authorized to grant rights-of-way across public lands³⁵ for, among other purposes,³⁶ pipelines for transporting and distributing liquids and gases (other than water, oil, or gas) and solid materials, systems for generating and distributing electricity, and transportation systems.³⁷ BLM right-of-way decisions under FLMPA are governed by 43 C.F.R. Part 4.³⁸ As with the MLA right-of-way decisions, FLMPA right-of-way decisions remain in effect pending appeal unless the Secretary of the Interior rules otherwise.³⁹ An appellant may move for a stay of the decision pending appeal.⁴⁰

B. IBLA Review of BLM Decisions

The 43 C.F.R. Part 4 regulations govern appeals to the Office of Hearing Appeals ("OHA") generally, as well as appeals to the specific boards, such as the IBLA and the Interior Board of Indian Appeals ("IBIA").⁴¹ This section first discusses the general Part 4 regulations that apply to the IBLA,⁴² and then discusses the IBLA-specific Part 4 regulations.⁴³

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1. 43 C.F.R. Part 4 General Provisions

43 C.F.R. § 4.1 describes the IBLA as follows:

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, including land selections arising under the Alaska Native Claims Settlement Act, as amended; (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. Special procedures for hearings, appeals and contests in public land cases are

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