OCR Text |
Show of many adjudicatory actions is not adequately provided for by either statute or regulation, such opportunities for participation as there are, may be rendered nugatory to all but the most aggressively alert. It is becoming increasingly clear that adequate records for decisions on important public land use matters will not always be produced when the only parties allowed to participate are one or more applicants and the responsible agency. Potential competitors for, or protestants to, any particular action should be heard if the public interest is to be fully served. They should be entitled to procedural due process equal to that afforded the principal applicant. We recognize that greater concern for third party interests, both in initial decisions and in appeals, raises possibilities of additional delay, but this risk is outweighed by the benefits we believe will flow from greater public participation. Furthermore, adoption of the recommendations we make will eliminate many of the delays. Consequently, we recommend that Congress require the agencies to give meaningful public notice of all proposed public land transactions to the maximum extent feasible, and to provide for the intervention and participation by interested economic competitors, state and local governments, and members of the public. Notice to the public should be accomplished at least by prominent publication in a newspaper of general circulation in the area involved. Administrative Appeals Perhaps the most consistent complaint heard at the public meetings was that the review procedures provided for by the administrative review systems of the Bureau of Land Management and the Forest Service were largely illusory because those who sat in judgment on "appeal" were part of the establishment that had made or participated in the initial decision. With respect to appeal of initial decisions in non-hearing cases from a Bureau of Land Management land office to the BLM Director, it was argued that the Director could hardly be expected to render an objective decision on appeal in a matter involving one of his subordinates who was carrying out official BLM policy. As noted later in this chapter, available evidence does not fully substantiate this claim. The same argument is made with respect to Forest Service appeals from regional foresters to the Chief of the Forest Service. Similar complaints were voiced with respect to appeals from the BLM Director to the Secretary. Since the appeal is in fact taken to the Office of the Solicitor, the Department's chief legal officer to whom the Secretary has delegated his authority respecting appeals, it is claimed that an objective decision is made difficult because the Solicitor's office 254 also serves as legal advisor to the BLM Director and field personnel. Although we recognize the fundamental difference between the administrative review function and a judical appellate system, we find that these complaints have merit. The decision-making structure is certainly conducive to the vices complained of, although we think they are not as prevalent in actual practice as has been argued. However, the fact that the advisory and adjudicatory functions are carried out by separate branches of the Solicitor's office (at least with respect to BLM and Geological Survey appeals) appears to be generally unknown to the public. Moreover, it does not fully mitigate the appearance that a single office of the Secretariat baldly serves as both advocate and judge in the same case, and appearances are important, whatever the reality may be. The same situation prevails in the Forest Service, but to a lesser extent because of the utilization of an independent board to render final decisions in a certain limited class of forest appeals. The result of this general belief that the appeals procedures are so structured as to preclude the wholly disinterested dispensation of justice has been a rather widespread demand for independent boards or examiners to render final decisions in public land matters at various stages of the adjudication process. However, while there is a clear need for a better separation of the various adjudicative functions within the agencies, we believe that the "independent board" approach is not a desirable solution. It would dilute the Secretary's managerial and supervisory authority over public land matters and thus weaken the element of public responsibility which accompanies his authority. To the extent that wholly independent review of agency decisions is needed, we believe court review is more direct and more consistent with our constitutional view of the separation of powers. Moreover, since appellate review by independent boards can only be fully effective if it can operate against some fairly specific guidelines, either in statutes or regulations, which spell out the nature of rights or privileges at issue and the standards under which they can be acquired, terminated or otherwise affected, the achievement of the latter would largely eliminate the need for any independent administrative review board. The "independent board" approach recently adopted by the Department of Agriculture in creating a new appellate system incorporating a Board of Forest Appeals to handle a limited class of appeals from initial decisions involving national forest matters does not come to grips with the central problem.6 The Board renders final decisions only in cases involving 6 36 C.F.R. §§211.20-.! 19. |