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Show next administrative level exercised its review authority, thus expediting the invoking of judicial review. This is the system now employed by Interior with respect to its "classification" decisions.10 Similar arguments are made with respect to the Forest Service appellate structure. We do not propose to advise the departments as to precisely how their decisional structures should be reorganized. However, we do recommend that the number of appeals that must be made to exhaust departmental remedies should be reduced to no more than two, and a time limit for disposition of cases should be imposed at each appellate level to expedite administrative and judicial review. After the first appeal there should be no further right of appeal unless timely granted in the discretion of the Secretary. A decision in the first instance, often by a field supervisor, generally should be appealable to an intermediate reviewing authority, and from that authority to the Secretary, and all other intermediate formal or informal appeals (at present as many as five levels of decision making may be involved in some Forest Service cases) should be eliminated. Direct appeal from the field to the Secretary should not be permitted, but the Secretary should have discretion to bypass the intermediate appeal level. He also should have discretion to refuse to hear appeals from the intermediate level, at which time the requirement of administrative finality would be satisfied. After a specified period of time elapses, a decision would be deemed to be affirmed by an intermediate reviewing authority and go on up to the Secretary for final decision. Similarly, the Secretary's decision would be deemed final for purposes of administrative finality after a specified period of time elapsed, so that the case could go on to the courts for review without unnecessary delay. Appropriate exceptions might be provided for, as in situations where decisions are delayed because of pending court litigation affecting the matter. Judicial Review Recommendation 110: Judicial review of public land adjudications should be expressly provided for by Congress. We are convinced that without the availability of some kind of court review, any legislative or administrative improvements in the rulemaking and adjudication procedures heretofore recommended would be largely only advisory. However, under the doctrine of sovereign immunity, grounded on the ancient concept that "The King Can Do No Wrong," the United States may not be sued, either by name, or as to directly affect its property or funds, unless Congress has consented. With respect to adjudications concerning the licensing of hydroelectric projects on the public lands, Congress 50 years ago expressly provided in the Federal Power Act for judicial review of Federal Power Commission orders.11 Similar review of adjudications by other Federal regulatory agencies has been provided by law. For adjudications of the major public land agencies, however, express statutory provision for judicial review is minimal. Consequently, such limited review as has been allowed has resulted because the courts either ignored the problem of sovereign immunity or bypassed it through various complex legal fictions, a situation which is confused, complex, uncertain, and, in the view of the contractor's study, obviously defective, if not, in fact, ridiculous.12 The only respectable rationale for the doctrine which is generally recognized is that there should not be undue interference with the official actions of the Federal agencies, a concern which we share. However, in accordance with traditional concepts of the separation of powers, it is not our intent that the courts would substitute their judgment for that of the agencies in matters committed by Congress to agency discretion. Indeed the courts traditionally have not attempted to, and as a practical matter cannot, substitute their views for those of the agencies in such matters. What judicial review does assure, however, is that (1) discretion is exercised even-handedly; (2) its exercise is not arbitrary or discriminatory; and (3) guidelines in statutes or regulations are followed. In this context the availability of judicial review should pose no threat or burden to legitimate public land management. Nevertheless, we are apprehensive about the adverse effect on public land management programs which extensive litigation, such as we have witnessed in the past year, might produce. Although we believe that this litigation has been caused in large measure by the inadequacy of provision for public participation in the land use planning and rulemaking and adjudication procedures of the agencies (which our other recommendations would provide for), part of See 43 C.F.R. 2411.1-2(e)(l). 11 16 U.S.C. § 8251. (1964). 12 The Administrative Conference of the United States has recommended general statutory reform of the sovereign immunity doctrine. See the Conference's First Annual Report, Recommendation No. 9, p. 40 (1970). 256 |