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Show an alleged breach of a written instrument, e.g., timber sale contracts and grazing permits, other than claims for money damages. Its limited functions are similar to those served by traditional boards of contract appeals. In other cases involving matters essentially of discretionary national forest management policy, the Board may only make recommendations for a decision which is to be made by the Chief or the Secretary, or simply forward the appeal without comment. It is too early to judge how well this complex structure has operated. However, its chief deficiencies are (a) that it does not afford any kind of appeal, to the Board or elsewhere, in situations where it is most needed (decisions in which permission for one use or another of the national forests is altogether denied), and (b) that informal appeal routes are apparently available outside the formal system, which weakens the utility of the latter and opens possibilities for discriminatory treatment. Consequently, we recommend that Congress provide for Secretarial review adequately insulated from management officials and legal advisors who have participated in decisions below, except for direct, open presentation of argument in support of their decisions. This might be an independent adjunct to the Secretary's office staffed by specialized reviewing personnel free from the influence of subordinate officials and legal advisors to such officials. Delays There was much complaint, also, at the public meetings about delays in BLM and Forest Service decision making. Whether such delays are inordinate cannot be ascertained. The Department of the Interior asserted in 1968 "that the era of overall 'great delays' in adjudications before the Bureau of Land Management was brought to an end several years ago by virtue of aggressive administrative measures that were taken to remove at least the symptoms, if not the root causes, of the intolerable case backlogs that had previously existed." 7 The significant change in procedure which was accomplished by the Secretary in 1963, was the splitting off of the "classification" aspect of many BLM adjudications from the decision on the merits. This change, coupled with a provision that a "classification" decision becomes final unless the Secretary 7 The "root cause" was asserted to be "the continuing deferral of the long overdue overhauling and simplification of the 'jungle' of public land statutes," a circumstance that should be significantly alleviated if not eliminated if the recommendations of this Commission are adopted. Transcript of Commission meetings of April 5-6, 1968 p. 345 (Dept. of Interior submittal in response to question on administrative delays). exercises his supervisory authority to review the decision within 30 days, has resulted in much speedier action on about a third of BLM's caseload. In any event, there is evidence of recent improvement at both the BLM and Secretary's levels.8 As to the cause of current delays, some appear to be inherent in the substantive requirements of the public land laws themselves. A number of statutes have rather detailed proof requirements which must be carefully evaluated e.g., the agricultural land laws. The substantive provisions of other statutes lack clarity and engender extensive litigation-for instance, the requirement of a discovery of "valuable mineral" in order to secure the benefits of the mining law. Personnel limitations play an obvious role, just as they do in connection with crowded court dockets. Beyond these factors, however, it has been argued that the existing multilevel decision-making structure in Interior and Agriculture may well be unnecessary. In BLM matters, it is often suggested that appeals to the Director could be eliminated and taken directly to the Secretary, thus promoting better initial decisions by officials who know that their actions are subject to immediate top level review. Some contend that the Director's appeal function can be readily eliminated since he only "rubber stamps" the decisions of his subordinates, although we have found no support for such assertions.9 Others argue that appeals to the Director should be retained, but that the Secretary should only review significant cases, much as the Supreme Court exercises its discretionary certiorari jurisdiction. Another proposed approach would be to eliminate both appellate levels and permit initial decisions to be appealed directly to the courts. With respect to all appellate levels, moreover, some suggest that a time limit, perhaps 6 months to one year, be set within which a lower decision would become final unless the 8 The average time required for the BLM Director's decision on an appeal declined from roughly 17 months in 1958 to 9 months in 1962, and then to 5 months as of December 31, 1967. Some modest recent improvement appears in expediting decisions in appeals to the Secretary from the BLM Director. In 1958 the average time lapse between the Director's decision and the Secretary's decision was 9 months, and in 1968 it was reported by Interior that most decisions were rendered in "from 6 to 12 months." However, the backlog of cases in the Solicitor's Office has been reduced from stultifying levels in the early 1960's to a current average of about 100, which is somewhat below the level that prevailed in 1958. There are no similar statistics available on Forest Service appeals. 9 The current operations of the BLM Office of Appeals and Hearings do not evidence a rubber stamp character. In the period from January, 1967, to April, 1968, of 591 decisions covering 1,077 cases, 31% either reversed, modified or vacated the decision below. 255 |
