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Show Adjudication Procedures Recommendation 109: Congress should direct the public land agencies to restructure their adjudication organization and procedures in order to assure: (1) procedural due process; (2) greater third party participation; (3) objective administrative review of initial decisions; and (4) more expeditious decision-making. The "adjudication" or fact finding and decisional authority to determine whether a particular applicant for a public land right or privilege meets the standards specified in the laws or regulations is generally vested by Congress in a departmental Secretary. It is thereafter normally delegated to subordinates, with a reservation of ultimate supervisory authority in the Secretary. Initial decisions are generally made at the field level, with provision for administrative review by intradepartmental "appeals" through levels to the Secretary for "final" decision. We find procedural problems in existing adjudica-tive procedures in two broad areas: (A) informal and formal procedures for developing the factual record for decision; and (B) the appellate decision-making structure as it bears on (1) separation of the adjudicatory function from other investigatory, advisory or program responsibilities, and (2) delays in rendering "final" decisions. Procedures For Developing the Factual Record For Decision Most adjudicatory actions are informal and are initiated by the filing with the appropriate official of an application for a right or privilege, or the sub-mittal of a bid, as for timber or an oil lease, pursuant to invitation. The matter is then largely out of the hands of the applicant or bidder, who often has no idea as to the facts and considerations upon which this initial decision will be based. Similarly, it is clear that in a number of situations reports, comments, etc., are thereafter furnished to the adjudication officer as part of his decisional process which the applicant neither is aware of nor has an opportunity to rebut at this stage, although he may be granted such opportunity if he should take an appeal from an adverse decision. The shortcomings of this system are strikingly detailed in the contractor's report which stresses that, with the exception of the Federal Power Commission, there is little assurance that due adjudicative process will be afforded most applicants for public land dispositions. The fact that Congress may leave certain necessary matters to the Secretary's discretion does not mean that such discretion should not be exercised in accordance with procedural due process, i.e., upon full and fair consideration of all the facts that can be brought to bear on a case, including those that might be adduced by the applicant. Nor is it necessary or fair to exercise such discretion in reliance on secret reports or oral communications, of which the applicant has had no notice nor an opportunity to answer. In this regard, we believe that express provision might well be made in administrative appeals for direct and open participation by the Government official rendering the initial decision below to help eliminate complaints about ex parte communications to the appellate level. Hearings The situation is different where formal hearings, or trial type procedures, are used to develop the record for decision. In such situations, the record produced at the hearing is the sole basis for decision, and the applicant is afforded procedural due process in that he is able to adduce evidence, cross examine witnesses, and rebut evidence produced by the Government or third parties. The greater regard for fair procedures which the hearing process embodies is apparently the reason for the voluminous testimony at the Commission's public meetings recommending "hearings" in a greater variety of public land adjudications. However, achievement of the goal of procedural due process does not require a formal hearing in each case, particularly since they are costly and time consuming. The trend in administrative law generally is away from such adversary hearings and toward more informal proceedings. Informal procedures-with applicants being given full opportunity to participate in the making of a factual record, to know its content, to offer rebuttal information, and to participate in any oral presentations-should generally be provided for by Congress, except in transitory situations, e.g., overnight camping permit applications. Mandatory formal administrative hearings now required by law should be continued and are recommended for certain other situations elsewhere in this report. In any event, the land management agencies should retain authority to hold hearings in their discretion and should be encouraged to use it as the significance of a particular action requires. Third Party Interests With the exception of the Federal Power Commission, there is inadequate provision for meaningful participation by third parties in the adjudicative process, whether formal or informal. Because notice 253 |