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By J.P. Tangen
Special to Mining News 

Interior Department should cut red tape

Little is accomplished by successive layers of bureaucratic review of local decisions that only swell the administrative record

 

Last updated 1/13/2018 at 1:46pm



Despite some of the significant things that Interior Secretary Ryan Zinke has done in his brief tenure as head of the U. S. Department of the Interior, one item of broad concern, to me at least, does not yet appear to have made it onto his radar screen: the overwhelming burden of Interior compliance with the intricacies of the Administrative Procedure Act, or "APA".

Although the Secretary is bound by the statutory mandate and the innumerable judicial interpretations that have flown from the APA, many aspects of its implementation are within his unique control. The APA constitutes an incredible burden on people who seek to do business with the department; and, invariably, it represents an endless quagmire through which few people can successfully slog.

First, a little history: The primary method within the Interior Department for resolving differences with regard to interpretations of the law currently entails a trip to the Office of Hearings and Appeals. For issues pertaining to land matters, this may require a hearing before an administrative law judge, followed by an appeal to the Interior Board of Land Appeals. Both entities are elements of the Office of the Secretary.

In most instances, the IBLA upholds the decision of the administrative law judge, who usually upholds the decision of the underlying agency official, who on reconsideration, has already determined that the original decision was flawless.

Since most land issues arise in western states, relief from an adverse decision by the IBLA means a trip to a federal district court in either the Ninth or Tenth judicial circuits. The hands of federal district judges are tied by the APA, which is premised on the fallacious notion that the agency implementing a statute is best qualified to interpret its own substantive mandate.

While it is a reasonable aspiration in the Tenth Circuit that a judge or, on appeal, a panel of the circuit court, may ultimately render reasonable relief, no such hope pertains in the Ninth Circuit. Supreme Court review in such matters is only an impossible dream and even if the Supreme Court were to grant reasonable relief, the Ninth Circuit predictably will mangle any remand into unrecognizable detritus.

At a minimum, that process from beginning to end involves huge amounts of time and money, often running into the millions of dollars on the part of the petitioner; and, of course, a drain on the Treasury in terms of staff time and costs on the part of the Department.

It wasn't always that way. Before the APA, decisions of Interior agencies were generally resolved at the Director level. Few matters made it to the Office of the Solicitor, who had the last word in the absence of the Secretary's personal intervention. Fewer cases made it into the court system; and the decisions that were handed down by the district courts, the circuit courts or, on rare occasions, the U. S. Supreme Court were useful guidance, were broadly embraced and have endured for generations.

A multitude of illustrations of the deficiencies of the current process exists, but the ultimate point is not that getting justice from an unjust agency is virtually impossible in terms of time and money. The point is, there is an obvious way to short circuit a bad system so that, good or bad, a challenge can be resolved more quickly.

Rather than the Office of Hearings and Appeals, which is far removed from most disgruntled petitioners, the final decision for departmental matters should generally be delegated to the regional directors, who have regional Solicitors at their elbows, to adjudicate mundane matters locally.

This would have a three-fold benefit. First, and most significantly, it would disrupt the concept of consistency in decisions. The one-size-fits-all world view simply does not work. Public land issues in the arid West have little in common with conceptually identical issues in the frozen North. Alaska and Arizona may both begin and end with the letter "a," but the two states have little else in common. A land-management precedent for one part of the West should not necessarily constitute a precedent for the entire West.

Second, by localizing decisions, the influence of bona fide stakeholders will be amplified. While the folks in Ohio who opine on mining the public domain in Alaska have a right to their opinion, it is the folks in Alaska who have to live with the results, whether that means a temporary surface disturbance at a remote mine site or the potential loss of a handful of well-paying jobs in an economically depressed area.

Third, as noted, the cost of fighting the bureaucracy is heavy. Individuals and small businesses cannot begin to afford the time or the cost. Furthermore, the layers of mid-level office workers employed to resist every dispute are a drag on the department's budget and a distraction from its broad general mission. So, I say to Mr. Zinke, if you wish to rein in your operating budget, let me suggest that you start here.

Notably, delegation to regional directors does not ensure better decisions. In fact, the problem generally is that the local decision was not satisfactory in the first instance. What it does, however, is eliminate duplicative review of bad decisions by bureaucrats who are more highly motivated to endorse the action below than to grant relief.

If a final departmental decision emanated from a regional director, the aggrieved petitioner could go immediately to the judiciary in order to get review. Even if the outcome is the same, the savings in time and cost, on both sides, would be humongous.

It is within the discretion of the Secretary to delegate his authority to the respective regions, just as it is within the power of the regional directors to seek assistance from the Office of the Secretary when needed. I urge him to consider this alternative.

 

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