PRACTICE BEFORE THE DEPARTMENTAL CASES HEARINGS DIVISION, OFFICE OF HEARINGS AND APPEALS, U.S. DEPARTMENT OF THE INTERIOR

• Jurisdiction: United States

47 Rocky Mt. Min. L. Fdn. J. 347 (2010)
Chapter 2
PRACTICE BEFORE THE DEPARTMENTAL CASES HEARINGS DIVISION, OFFICE OF HEARINGS AND APPEALS, U.S. DEPARTMENT OF THE INTERIOR
Robert G. Holt
Administrative Law Judge
Departmental Cases Hearings Division
Office of Hearings and Appeals
U.S. Department of the Interior

Copyright © 2010 by Rocky Mountain Mineral Law Foundation; Robert G. Holt

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"The views expressed do not necessarily represent the views of the Department of the Interior or the United States Government"

1. Introduction

a. Overview

Administrative law judges assigned to the Departmental Cases Hearings Division of the Office of Hearings and Appeals conduct administrative hearings within the Department of the Interior. Many mineral law practitioners are familiar with the paper appeals filed with the Interior Board of Land Appeals because most adverse decisions by Department officials come to this administrative body for review. But practitioners may not be as familiar with the ins and outs of the trial-type hearings conducted by administrative law judges. This paper will describe that practice.

The paper will: describe the organization of the Hearings Division; identify the particular sources of authority and precedent for its decisions; catalog the types of cases heard by the division; discuss prehearing procedure; describe the conduct of the hearing; and, discuss selected evidence issues.

b. Organization of the Office of Hearings and Appeals

The Office of Hearings and Appeals (OHA) falls within the Department's bureaucratic organization as a unit of the "Office of the Secretary." It acts as the Secretary's representative for conducting hearings

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and deciding selected appeals.¹ A Director, who reports to a deputy assistant secretary, heads the organization.

Secretary of the Interior Walter J. Hickel created the OHA in 1970 to separate the adjudicatory function from other program responsibilities within the Department. A branch within the Solicitor's Office known as the "Branch of Land Appeals" had previously performed this function.² OHA now consists of two appeals boards and three hearings divisions.³ The appeals boards are the Interior Board of Land Appeals ("IBLA") and the Interior Board of Indian Appeals ("IBIA"). Both boards are co-located with the Director and administrative staff in Arlington, Virginia. The IBLA is the largest (currently six administrative judges) and the IBIA is considerably smaller (currently with two administrative judges). The IBIA reviews actions of officials from the Bureau Indian Affairs and also reviews Indian probate decisions.

The hearings divisions consist of: (1) the Probate Hearings Division (ALJs, Indian Probate Judges, and Attorney Decision Makers) with offices in eight cities around the west, (2) the WELSA Hearings Division (a single Administrative Judge) in St. Paul, Minnesota, and (3) the Departmental Cases Hearings Division (four ALJs) located in Salt Lake City, Utah. The Probate Hearings Division determines the successors of Indian lands held in trust by the Department, and the WELSA Hearings Division administers special legislation for the White Earth Indian Tribe.

The following chart depicts the OHA's current internal organization:

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OFFICE OF HEARINGS AND APPEALS ORGANIZATION CHART

TABLE

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The Director of OHA possesses more than just supervisor authority. The person occupying this position considers and decides, personally or through ad hoc boards of appeals he or she establishes, appeals to the Secretary that do not lie within the appellate review jurisdiction of IBLA or IBIA. The Director also has the authority to assume jurisdiction of any board case and may reverse it or direct reconsideration.⁴ Further the Secretary has the same authority over any Department employee's decision, including an ALJ.⁵ This reserved jurisdiction emphases that the authority of the boards and ALJs derives from the Secretary under Article II of the Constitution and that neither possess the same type of independent jurisdiction to decide cases as do the trial and appellate courts authorized by Article III.

c. Regulations

The Hearings Division does not have a single set of generally applicable rules such as the Rules of Civil Procedure used by federal courts. The rules governing most hearings are contained in 43 C.F.R. Part 4. But these specifically address only some of the hearings conducted by the Hearings Division. They include contest hearings (usually involving mining claims and Alaska Native allotments),⁶ grazing appeals,⁷ and surface coal mining.⁸ The rules for contest hearings and grazing appeals are very basic. Only the rules for surface coal mine hearings provide detailed guidance for prehearing practice such as motions or discovery.⁹ Accordingly, much prehearing practice is left to the ALJ's discretion.

Regulations in additional parts of the C.F.R. cover some other specific hearing types such as hydropower licensing¹⁰ and Indian Self-Determination Act appeals.¹¹ Thus, the practitioner must be careful to find and consult the regulations for the specific subject matter involved. For the subjects not covered by specific regulations the general regulations provide guidance.¹²

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d. Decisional Precedent

IBLA decisions provide mandatory precedent for ALJ's in the Hearings Division.¹³ But ALJ decisions do not bind anyone except the parties.¹⁴ The published decisions now contain most substantive precedent for the Department. These decisions date from the IBLA's creation in 1970 and are published in several formats. For many years, the Department compiled the decisions in loose leaf notebooks bearing the volume number of the case citation. These volumes were not generally available to the public, but practitioners could sometimes access them in the libraries of the Department's field solicitors. An index organizing the headnotes from the decisions was also available. Gower Federal Service, published by the Rocky Mountain Mineral Law Foundation, has republished many of these decisions, organized them by subject matter (i.e., Oil and Gas, Mining, Outer Continental Shelf, and Miscellaneous Lands), and reformatted them using their own citation system. These are now available on WestLaw. Both WestLaw and Lexis have made the IBLA decisions available in the original format.

The Department has also published selected documents in numbered volumes beginning in 1887. Volumes 1-52 are published as the "Land Decisions" and cited as [vol.] L.D. [page], and volumes 53-102 are published as the "Interior Decisions" and cited as [vol.] I.D. [page]. The Department stopped publishing in this format at the end of 1994. The volumes also contained materials from various authorities, such as Solicitor's Opinions, that the Department considered precedential. It also contained selected IBLA reprints.

In recent years, since the advent of the digital age, the OHA has published the IBLA decisions on its website. Between 2001 and 2008, a district court order requiring OHA to disconnect from the internet made this source unavailable to the public.¹⁵ After the district court authorized reconnection¹⁶ OHA returned its website to the internet and the site is now accessible by the public.¹⁷ The site has a searchable database and includes IBLA decisions shortly after they are released. Publication on the website often precedes WestLaw or Lexis. The site contains only decisions issued

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by the IBLA and does not include unpublished orders. Summaries selectively published in Public Land News contain the only public source for these orders.

Solicitor opinions provide another source of precedent for the Department.¹⁸ The most important of these were compiled in the I.D. volumes until 1994. Since 1993, they are collected on both the Solicitor's Office and OHA websites.¹⁹

Finally there is a collection of decisions issued by the former Board of Surface Mining and Reclamation Appeals beginning with its creation in 1978 until it was disbanded in 1983. They are cited as _____ IBSMA _____ and are collected on the OHA website. Surface coal mining appeals are now decided by the IBLA and are collected in its decisional volumes (i.e., _____ IBLA _____ ) and on the OHA website.²⁰

e. Other References

The OHA has published a Style Manual, the most recent edition of which is dated May 1, 2007. This provides guidance for internal use in standardizing writing formats. Practitioners may find it useful, but compliance is not mandatory. It is not readily available to the public, but copies may be individually requested.

Having described OHA's organization, attention will now turn to the specific types of cases heard by the Hearings Division.

2. Types of Cases

a. Formal Hearings

i. Introduction

Academics have classified hearings before administrative agencies into two types: formal and informal. Formal hearings require adherence to the Administrative Procedure Act ("APA").²¹ This Act provides important rights and procedures similar to those afforded participants in civil trial courts (i.e., a presiding administrative law judge, separation of adjudication and prosecution functions, notice, admission of oral and documentary evidence, cross examination, a written transcript, a formal decision, and

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exclusion of ex parte contacts).²² Informal hearings do not require adherence to the APA's requirements.²³

Distinguishing between formal hearings (requiring APA procedures) and informal hearings has not been easy. Section 554 of the APA states that its provisions apply only to cases required by statute to be determined on the record after opportunity for hearing:

This section applies ... in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing ....

When this language appears in a statute, it "triggers" application of the remaining provisions of...