JurisdictionUnited States
Natural Resources & Environmental Administrative Law and Procedure
(Nov 1999)


Will A. Irwin, Administrative Judge
Interior Board of Land Appeals
Arlington, Virginia

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Interior Board of Land Appeals

November 18, 1999

I. Introduction

The IBLA currently has twelve administrative judges. Appeals are assigned in rotation to a lead judge and a concurring judge in the order they are filed, without regard to subject matter. The exception is appeals from royalty decisions of the Minerals Management Service, which are assigned separately in rotation due to the 33-month time limit for deciding appeals imposed by 30 U.S.C. § 1724(h) (1994).

Each judge is free to manage his or her docket in his or her discretion, and has the assistance of one staff attorney in doing so. As a result, although there are some general guidelines governing all judges (e.g., work on oldest cases first, subject to dealing with motions, petitions for stay, and expedited cases promptly), practice before IBLA may vary. That is, different judges may handle similar circumstances differently.

There is an extensive literature about IBLA practice and procedure. (See the references listed at the conclusion of this paper.) This paper is a selection of reminders, precedents, and recent developments. It is based on a survey of recent IBLA decisions and orders and suggestions from colleagues, but it is the work of only one member of IBLA and therefore does not represent the views of all members. And, of course, it does not represent the official view of either IBLA or the Department of the Interior.

The Office of Hearings and Appeals (OHA) is developing a website that is scheduled to be on-line by the end of the year. It will be accessible through the Department of the Interior website, which is www.doi.gov/oha. It will be possible to research IBLA decisions, OHA Director decisions, and Interior Board of Indian Appeals decisions on line at no cost to the researcher. An internal search-engine will be made a part of the website to allow research to be conducted by searching for a specific word or group of words within the decisions.

At the end of fiscal year 1999 (i.e., on September 30, 1999), IBLA had 631 appeals pending. Of those, 150 had been pending for just more than 12 months. The average time for disposition of an appeal was 16.1 months from the date it was ripe for review. For purposes of comparison, on September 30, 1998, IBLA had 901 appeals pending, of which 307 had been pending for more than 12 months, and average disposition time was 20.5 months from date ripe. Ten years ago, at the end of FY 1989, we had 793 cases pending. In that year, also a year in which we emphasized deciding old cases, average disposition time was 10.7 months from date ripe.

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II. Effect of Decision Pending Appeal

A. The general rule is 43 C.F.R. § 4.21 (58 F.R. 4939, Jan. 19, 1993).

A decision is not effective during the time it may be appealed. §4.21(a)(1). IBLA or the Director of OHA may put a decision into full force and effect after the filing of an appeal "when the public interest requires," however. Because many decisions are now excepted from § 4.21, as outlined below, agency requests to place decisions into full force and effect are uncommon.

A decision goes into effect the day after the appeal period expires unless a petition for stay is filed together with a notice of appeal. § 4.21(a)(2). A petition for stay will be regarded as having been filed "together with" a notice of appeal if it is received any time during the time period for filing a notice of appeal. Robert E. Oriskovich, 128 IBLA 69, 70, n. 1 (1993).

If a petition for stay is filed, a decision goes into effect if and when the Board denies the petition or, if the Board does not act on the petition beforehand, 45 days after the appeal period expires. § 4.21(a)(3), 4.21(b)(4).

B. 43 C.F.R. § 4.21 governs, "except as otherwise provided"

There are several exceptions to the general rule in § 4.21. Most of those exceptions provide that the agency's decision is in full force and effect when it is issued. As a result, the agency's decision is subject to immediate judicial review (even if the regulations state otherwise). Sigma M Explorations Inc., 145 IBLA 182, 189-90 (1998); Southern Utah Wilderness Alliance, 123 IBLA 13, 17 n. 3 (1992). If a party prefers to defer judicial review, IBLA will issue a decision on an appeal. Concerned Citizens for Responsible Mining (On Reconsideration), 131 IBLA 257, 259 n. 3 (1994).

There may be advantages to appealing to IBLA rather than seeking immediate judicial review, e.g., IBLA may be more familiar with the issues, may give less deference to the agency's position, may be able to make a prompter decision, and may be less costly.

Exceptions to § 4.21 are:

1. MMS Royalty Management Program decisions

30 C.F.R. Part 243 (64 F.R. 26254, May 13, 1999).

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2. MMS Offshore Minerals Management decisions

30 C.F.R. § 290.7 (64 F.R. 26258, May 13, 1999).

3. FLPMA rights-of-way.

43 C.F.R. § 2804.1(b) ; Martin Hackworth, 141 IBLA 249, 251 (1997); Nevada Power Co., 137 IBLA 328, 329 (1997).

4. MLA rights-of-way.

43 C.F.R. § 2884.1(b) ; Independent Petroleum Association of Mountain States, 136 IBLA 279, 280 (1996); Texaco Trading & Transportation Inc., 128 IBLA 239, 240 (1994).

5. Minimum impact permits

43 C.F.R. § 2920.2-2.

6. Competitive oil and gas leases.

43 C.F.R. § 3120.1-3; Colorado Environmental Coalition, 130 IBLA 61, 65 (1994); Southern Utah Wilderness Alliance, 122 IBLA 17, 18 (1992).

7. Onshore oil and gas geophysical exploration.

43 C.F.R. § 3150.2; Wyoming Wildlife Federation, 123 IBLA 392 (1992); Southern Utah Wilderness Alliance, 123 IBLA 13, 17-18 (1992).

8. Onshore oil and gas operations.

43 C.F.R. §§ 3165.3(e) , 3165.4(c); Colorado Environmental Coalition, 135 IBLA 356 (1996).

9. Geothermal operations.

43 C.F.R. § 3266.1 .

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10. Coal lease readjustments

43 C.F.R. § 3451.2(e); Atlantic Richfield Co., 121 IBLA 373, 383-85, 98 I.D. 429, 434-35 (1991).

11. Coal lease termination decisions

43 C.F.R. § 3472.1-2(e)(4)(ii) and (iii).

12. Phosphate, potassium, and gilsonite lease readjustments

43 C.F.R. §§ 3511.4(b) , 3531.4(b) , 3551.4(b) .

13. Surface management — (hardrock mining)

43 C.F.R. § 3809.4(f) ; National Wildlife Federation, 145 IBLA 348, 351 (1998); Western Shoshone National Council, 130 IBLA 69, 71 (1994).

14. Grazing notices of closure

43 C.F.R. § 4150.2(d).

15. Grazing decisions

43 C.F.R. § 4160.3; Oregon Natural Resources Council Action, 148 IBLA 186, 187-88 (1999).

16. Wild horses and burros

43 C.F.R. § 4770.3(b) and (c); Wild Horse Organized Assistance, 141 IBLA 202 (1997).

17. Forest management decisions

43 C.F.R. § 5003.1; In Re Eastside Salvage Timber Sale, 128 IBLA 114 (1993).

18. Special recreation permits

43 C.F.R. § 8372.6 ; Coalition for the High Rock/Black Rock Emigrant Trail National Conservation Area, 147 IBLA 92, 94 (1998).

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III. Petitions for Stay Pending Appeal

A. Standards for Granting a Stay Pending Appeal

43 C.F.R. § 4.21(b)(1) states that, except as otherwise provided by law or other pertinent regulation, a petition for stay of a decision pending appeal shall show sufficient justification based on the following standards:

(i) The relative harm to the parties if the stay is granted or denied;

(ii) The likelihood of the appellant's success on the merits;

(iii) The likelihood of immediate and irreparable harm if the stay is not granted; and

(iv) Whether the public interest favors granting the stay.

When requesting a stay of a decision pending review on appeal, address each of the criteria under 43 C.F.R. § 4.21(b)(1)(i)-(iv), or, if that regulation is not applicable, under Western Shoshone National Council, 130 IBLA 69, 71-72 (1994). See Jan Wroncy, 124 IBLA 150, 152-53 (1992); Marathon Oil Co., 90 IBLA 236, 245, 246 (1986).

B. Burden of Persuasion for Granting a Stay

The person requesting a stay has the burden of demonstrating that a stay should be granted. 43 C.F.R. § 4.21(b)(2). "[T]he burden is on the appellant to demonstrate in the petition for a stay that a stay is necessary under each of the criteria." 58 Fed. Reg. 4939, 4941 (Jan. 19, 1993); Western Shoshone National Council, 130 IBLA at 72. See Oregon Natural Desert Association, 135 IBLA 389, 393 (1996); Jan Wroncy, 124 IBLA at 152-53.

If you are seeking or opposing a stay, don't overlook citing precedent that indicates the petitioner would or would not prevail on the merits. That facilitates the necessarily limited research of substantive issues we can do in dealing with petitions for stay.

C. Timing for Filing a Petition for Stay

1. A stay may be requested at any time while an appeal is pending. Carol E. Shaw, 136 IBLA 84, 87-88 (1996); David M. Burton, 11 OHA 117 (1995); Robert E. Oriskovich, 128 IBLA 69, 70 (1993).

2. The Board may decide a case on the merits in response to a petition for stay. Curt Farmer Pack Llamas, 132 IBLA 42 (1995); Texaco Trading & Transportation Inc., 128 IBLA 239 (1994); The Friends and Residents of Log Creek, 145 IBLA 30 (1998). Or the Board may take a petition for stay under advisement and deny it as moot when it decides the appeal. Southern Utah Wilderness Alliance, 150 IBLA 263 (1999).

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D. Effect of Full Force and Effect

1. If BLM declares a mining claim void for failure to pay rental or maintenance fees and an appeal is filed but a request for stay of BLM's decision is denied (or there is no request for a stay), then there is no claim and no requirement to do assessment work or pay a fee for the claim. Sigma M Explorations, Inc., 145 IBLA 182 (1998); Lenore L. Baird, 142 IBLA 335 (1998).

2. If BLM issues a decision approving a natural gas field development program and a stay of that decision is...

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