Red Lodge Clearinghouse - Administrative Appeals

Administrative Appeals

Many federal and state government agencies provide for administrative review of agency decisions by another agency official or a quasi-judicial board. This enables a person or organization or company to appeal a decision that adversely affects its interests. If the person appealing is not satisfied with the result of the agency's administrative review, it may usually seek further review by a court. This section describes the administrative review procedures of two federal executive branch agencies that have responsibilities for managing various natural resources, e.g., minerals, recreational lands, and forests, the Bureau of Land Management (BLM) in the U.S. Department of the Interior and the U.S. Forest Service (USFS) in the U.S. Department of Agriculture. The procedures of other federal and state agencies are generally similar.

What is a trial-type hearing?

Some statutes require that an agency's adjudication be "determined on the record after opportunity for an agency hearing" in accordance with the Administrative Procedure Act (APA), 5 U.S.C. 554 , and some agencies elect to make some of their decisions after such a hearing even if it is not required by statute. A hearing is usually conducted by an administrative law judge, and must be conducted in accordance with the requirements of sections 554(d) and 556(c) of the APA.

While the following provides a brief overview of appeal procedures, it is important for appellants to consult and carefully comply with the procedures set forth in the agency's regulations (cited below).

Many of the laws that the BLM and the USFS implement require that these agencies provide administrative review of their decisions. Usually these laws authorize the agencies to issue regulations that elaborate the statutory requirements. For example, the Taylor Grazing Act provides that a person who is adversely affected by a BLM grazing decision may request a trial-type hearing as a step in the agency's administrative appeal process. The agency's regulations spell out how the person requests the hearing, who conducts it and how, and whether and how the agency's decision after the hearing may be further appealed within the agency.

Should you file an appeal?

Administrative Appeals
Should you file an appeal?

Administrative Review in the U.S. Department of the Interior
The appeals process
Who can file an appeal
Who reviews and decides appeals

Example appeal: NPDS Permit Appeal to EPA's Environmental Appeals Board

Additional resources Administrative appeals are generally less expensive and less time-consuming than appeals to a court. They are not, however, "free": they at least take one's time and energy, and if they are important enough to the person or complex enough they may entail engaging an attorney. Unless the attorney agrees to contribute his or her time "pro bono," that time may be costly.

One important reason for filing an administrative appeal is that it is necessary to do so if one intends eventually to appeal to a court. That is because courts normally require that a person "exhaust" the administrative remedies available in an agency before seeking judicial review. The exception to this doctrine is that one may appeal directly to court if the agency's decision is "final." An agency's action is considered final if it will remain in effect even if it is the subject of an administrative appeal within the agency, e.g., a BLM decision is not suspended or "stayed" while the appeal is pending.

There are good reasons to pursue an administrative appeal even if one could bypass it and appeal directly to court. The agency's reviewing official or appeal board is likely to be more familiar with the subject matter and the issues of the law under which a decision was made than a court. And, if the agency is relatively current in disposing of the appeals that have been filed, a decision in an administrative appeal should be more timely and less expensive than a court decision. (Historically, IBLA had a large backlog of pending appeals and it could take as long as a few years for it to issue a decision. Currently it has approximately 175 active pending appeals and it takes 10 - 12 months on average for it to issue a decision in an appeal.) A court might also show more deference to the agency's decision than the agency's reviewing official or appeal board.

Decisions by IBLA establish precedents. This means that IBLA will normally follow its decisions in previous cases with similar facts and issues. For this reason past IBLA decisions may be useful to members of the public and attorneys who are considering whether or not to appeal a decision in the future. (An initial decision by Administrative Law Judge after a trial-type hearing is not, however, precedential.)

Administrative review in the U.S. Department of the Interior

There are two administrative review boards in the Department of the Interior(DOI)- the Interior Board of Land Appeals, which renders decisions relating to public lands and mineral resources (including decisions of the Bureau of Land Management, the Minerals Management Service, and the Office of Surface Mining) and the Interior Board of Indian Appeals, which is authorized to decide appeals of decisions of the Bureau of Indian Affairs. This section focuses on the appeals process as it relates to the BLM.

Interior Board of Land Appeals (IBLA)

The Interior Board of Land Appeals consists of a Chief Administrative Judge, Deputy Chief Administrative Judge, and Administrative Judges. As a board they are authorized by the Secretary of the Interior to decide appeals from decisions rendered by Department of the Interior officials relating to:

1) the use and disposition of public lands and their resources and 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;

2) land selections under the Alaska Native Claims Settlement Act; and

3) surface coal mining and reclamation operations under the Surface Mining Control and Reclamation Act of 1977.

Interior Board of Indian Appeals (IBIA)

The Interior Board of Indian Appeals (IBIA) is authorized by the Secretary of the Interior to decide appeals from:

1) administrative actions and decisions of Bureau of Indian Affairs (BIA) officials,

2) decisions of Administrative Law Judges regarding Indian probate matters as well as

3) matters pertaining to Indians that have been referred by the Secretary or Assistant Secretary-Indian Affairs.

Note: DOI published proposed rules that would amend some of the procedures applicable to review of all appeals to IBLA. These rules currently await final approval in by the Assistant Secretary, Policy, Management, and Budget. The procedures described below are the procedures in the to-be-final rules.

The appeals process

DOI Regulations on Appeals

The Department of the Interior's regulations that govern administrative appeal procedures are found in Part 4 of Title 43 of the Code of Federal Regulations (43 CFR Part 4).

All agency rules published in the CFR are available on the Government Printing Office web site at www.gpoaccess.gov.

Most appeals end up at the IBLA, but where the appeal starts depends on the issue being appealed. Some decisions, e.g., involving onshore oil and gas operations, must first be reviewed by the State Director of BLM in the state where the land is, and it is the State Director's decision that may be appealed to IBLA. 43 CFR 3165.3. Some appeals start with a trial-type hearing by an administrative law judge (ALJ). If a hearing is held, it is the initial decision of the ALJ who conducts the hearing that may be appealed to IBLA. 43 CFR 4.478. BLM decisions that do not involve a trial-type hearing as the first step of administrative review (as is the case for grazing decisions, for example) may be appealed directly to the Interior Board of Land Appeals (IBLA). 43 CFR 4.410(a).

What is required to be in an appeal to IBLA?

The notice of appeal must give the serial number or other identification of the case and may include a statement of reasons for the appeal, a statement of standing if that is required by section 4.412(b) (for an appeal relating to land selections under the Alaska Native Claims Settlement Act), and any arguments the appellant wishes to make. 43 CFR 4.411(b). If a notice of appeal is filed with BLM, BLM must compile the complete administrative record that led to the decision and send it to IBLA.

Administrative appeals from a BLM decision must be made within 30 days of receiving the decision (or the date it is published in the Federal Register, if it is). During that 30-day period, the BLM decision is not in effect, except as otherwise provided by law or other pertinent regulation. A notice of appeal must be filed with the BLM official who made the decision, not the IBLA. Either accompanying the notice of appeal, or within 30 days after filing it, the individual must provide a statement of reasons explaining why the appellant believes the BLM decision is in error. If a notice of appeal is filed with BLM, BLM must compile the complete administrative record that led to the decision and send it to IBLA.

As noted above most BLM decisions remain in effect while the appeal is being considered, so it may be advisable to file a petition for a stay of the decision with the notice of appeal. 43 CFR 4.21(a)(2). If the IBLA grants the petition, the decision is not effective until IBLA decides the appeal. Whether or not a stay is granted, BLM is entitled to file an answer to the statement of reasons for appeal that was filed with IBLA. It must do so within 60 days of receiving the statement. BLM may either write the answer itself or it may request an attorney in the Department's Office of the Solicitor to do so on its behalf.

Who can file an appeal

Not everyone concerned about an agency's decision is entitled to file an appeal. Generally, to have a right of appeal a person or organization must have been involved in the public decision-making process and must have a legal interest that is adversely affected by the decision. The interest that is affected for the person to have "standing" to appeal does not necessarily have to be a property interest, e.g., ownership of the land involved. It is usually sufficient that the person uses the land for recreation, for example, in order to have the required interest.

To stay or not to stay

Petitions for a stay (a suspension of a decision) are not granted routinely. A petitioner has the burden of showing:

relative harm to the parties if the stay is granted or denied,
likelihood of the appellant's success on the merits of his reasons for appeal,
likelihood of immediate and irreparable harm if the stay is not granted, and
whether the public interest favors granting the stay. 43 CFR 4.21(b)(1)-(4).

Assuming a plausible case for succeeding on the merits, a general way to weigh the remaining factors is to consider what circumstances would be more difficult to un-do, those in place if a stay is granted or those if the stay is not granted and the decision remains in effect and is implemented. For example, if the BLM decision is to eradicate a population of prairie dogs or cut down a stand of timber, it would not be possible to resurrect it if a stay were denied but the appeal was ultimately successful. If a stay of the decision is granted pending a decision on the appeal, BLM may not implement the decision or change it.

The section of the rules that states who may appeal a BLM decision is 4.410; thus, it is cited as 43 CFR 4.410. It provides that the person must have been a "party to a case." A "party to a case" is "one who has taken action that is the subject of the decision on appeal, is the object of that decision, or has otherwise participated in the process leading to the decision under appeal, e.g., by filing a mining claim or application for use of public lands, by commenting on an environmental document, or by filing a protest to a proposed action." 43 CFR 4.410(b). (Protests of BLM decisions are allowed under 43 CFR 4.450-2 by "any person to any action proposed to be taken in any proceeding before" BLM.) The reason for requiring that one be a party in order to have a right of appeal is to provide BLM the opportunity to be informed of and consider the potential adverse consequences to the person's interests before it makes a decision. If one has not been a party, an attempted appeal will be dismissed without consideration of the reasons for appeal.

43 CFR 4.410 also requires that a person have an interest that is "adversely affected" by BLM's decision. Specifically, 4.410(d) provides that a party is adversely affected "when that party has a legally cognizable interest, and the decision on appeal has caused or is substantially likely to cause injury to that interest." It is IBLA, not the BLM, that determines whether the person filing the appeal is a "party to a case" that is "adversely affected."

If a person is not a party to the case or not adversely affected by the BLM decision - and therefore does not have a right of appeal - one option is to file a petition to intervene within 30 days the individual knew (or should have known) an appeal was filed. The petition must state whether this person would have had a right of appeal or would be adversely affected if the BLM decision were reversed or modified by IBLA. (For example, if an environmental organization appealed a BLM decision to grant a company a permit, that company could be adversely affected if IBLA were to reverse BLM's decision.) IBLA has discretion to grant or deny intervention. It may deny a petition if the rights of the existing parties would be disadvantaged by granting intervention or if the intervenor's participation would delay the adjudication of the appeal by IBLA. Alternatively, a person may file a motion to file a brief as an amicus curiae, i.e., a friend of the court. The motion must state the person's interest in the appeal and how the brief is relevant to the issues involved. If IBLA denies a petition to intervene it may allow the petitioner to file an amicus brief.

Who reviews and decides appeals

Short-circuiting the process with an agreement

Once a stay is granted that does not mean that BLM may not discuss a mutually acceptable settlement of the case with the parties to the appeal. Indeed, it may be in BLM's interest to consider a settlement if a stay is granted - or in an appellant's interest to do so if a petition for stay is denied - rather than wait several months for a decision that may be adverse to it. If an agreement to settle is reached on terms that differ from the original BLM decision, BLM will request that IBLA vacate that decision and remand the matter for a new decision. Alternatively, an appellant may request to withdraw its appeal. IBLA routinely grants such requests.

It is also possible for a party to ask IBLA for alternative dispute resolution, usually mediation. The board encourages ADR and will refer such a request to the Department's Office of Collaborative Action and Dispute Resolution (CADR) for assignment to a trained third-party neutral. If ADR is successful, the parties agree to ask IBLA to dismiss the appeal from its docket.

There are presently ten members of IBLA, referred to as Administrative Judges. Appeals to IBLA are decided by pairs of these judges. One of the pair is the lead judge who is responsible for reviewing the file and the arguments of the parties and drafting a decision. If the draft is acceptable to the other member, sometimes after negotiations between the two of them, it is copied for all other members of the board to review. If the second member cannot agree with the initial draft, he or she may draft a dissenting opinion and then a third member is assigned to decide which result he or she thinks is preferable. In this case, the draft majority and dissenting opinions are copied for other board members. If three or more other board members think a draft decision warrants discussion by the full board they will ask the Chief Administrative Judge to call a meeting to do so. Such a meeting usually results in an "en banc" decision by IBLA, sometimes with multiple opinions. Once a decision is reached by IBLA it is mailed to the parties and published in the collection of IBLA decisions that now numbers approximately 175 volumes. (Decisions are also posted on the Department's website, although for the past few years that has been prohibited by a court injunction.)

IBLA's authority to decide appeals is delegated to it by the Secretary of the Interior. The regulation delegating that authority, 43 CFR 4.5, reserves to the Secretary the power to assume jurisdiction over a pending appeal or to reconsider the decision IBLA makes in a particular appeal. A party may also request the Secretary to review an IBLA decision. It is rare that the Secretary will either assume jurisdiction or review an IBLA decision. More usual, although not common, is that an Assistant Secretary will issue a decision in place of BLM or other agency whose decisions may be appealed to IBLA (e.g., the Minerals Management Service or the Office of Surface Mining). Because an Assistant Secretary's delegated authority is equivalent to IBLA's, such a decision may not be appealed to IBLA.

The administrative review process in the U.S. Department of Agriculture will be coming soon... Check back for updates!

Example Appeal: NPDES Permit Appeal to the EPA's Environmental Appeals Board

U.S. Environmental Protection Agency's (EPA's) Environmental Appeals Board (EAB)

The EAB is the final agency decision-maker on administrative appeals under all major environmental statutes that the U.S. Environmental Protection Agency (EPA) administers. It is an impartial body independent of all EPA components outside the immediate Office of the Administrator. The EAB typically sits in panels of three judges and makes decisions by majority vote.

In August of 2000 and again in March of 2002 several conservation organizations filed an administrative appeal with the EPA's Environmental Appeals Board (EAB) in Washington, D.C. challenging EPA's issuance of a National Pollution Discharge Elimination System (NPDES) Permit to the Carlota Copper Company in Arizona. The central issues in the appeal were 1.) the EPA's allowance of new point source discharges of copper into a stream segment already exceeding the state water quality standard for copper, and 2.) the EPA's failure to account for, and properly analyze under the National Environmental Policy Act (NEPA), additional point source discharges of copper and other pollutants associated with the Carlota Copper Company's mine development plan.

The EPA argued that its permit was legal because the agency was requiring the company to clean up an existing abandoned copper mine that was currently illegally discharging copper in order to "off set" the new pollution expected to come from the Carlota mine. The conservation organizations countered that the existing abandoned mine cleanup was located too far upstream (five miles) to "off set" any pollution from Carlota. They further argued that even with the expected "off set" a new Carlota discharge would still be causing or contributing to a violation of the applicable water quality standards for copper. The conservation groups also claimed that EPA failed to account for and analyze additional mine related point source discharges of copper. EPA argued that the organizations' comments were not specific enough on this point and were improperly submitted in the wrong venue. Although the comments were submitted to EPA well in advance of the final permitting decision, EPA argued they were ineffective because they were submitted during a public comment period for the EPA's development of a Total Maximum Daily Load (TMDL) for the same watershed, which was being prepared simultaneously with the issuance of the permit rather than for the permit itself.

The conservation groups lost their appeal when the EAB issued an Order Denying Review on September 4, 2004. The EAB ruled that the EPA had indeed properly applied the Clean Water Act to allow for the "off set" as proposed in the Carlota NPDES Permit. The EAB also agreed with the EPA that the comments regarding failure to account for additional copper discharges were not submitted during the proper public comment period, and thus were properly ignored by the EPA. The conservation organizations filed suit directly with the Ninth Circuit U.S. Court of Appeals and on October 4, 2007 won a ruling sending the permit back to the EPA on both counts -- invalidating the "off set" program and ordering the EPA to consider all comments properly submitted to the agency prior to the permit issuance.

For more information, see Friends of Pinto Creek v. U.S. EPA, 504 F.3d 1007 (9^th Cir. 2007). Or visit the Western Mining Action Network web site.

Additional Resources

GPO Access
The Government Printing Office (GPO) provides free public access to full-text, official federal information including the U.S. Code of Federal Regulations.

Federal Register
The Federal Register is the official daily publication for rules, proposed rules, and notices of Federal agencies and organizations, as well as executive orders and other presidential documents.

Department of the Interior's Office of Collaborative Action and Dispute Resolution (CADR)
CADR promotes, coordinates and facilitates greater use of alternative dispute resolution and consensus-building processes throughout the bureaus and offices of the U.S. Department of the Interior. The IBLA refers requests for alternative dispute resolution to CADR.

Will Irwin, a retired Administrative Judge on the Interior Board of Land Appeals and Jeffrey Parsons, an attorney with the Western Mining Action Project contributed to this edition.

Last Updated ( Thursday, 01 May 2008 )