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Bureau of Land Management - Appeals (9-FD-d)

Information current as of 2020
A developer may appeal a decision made by the Bureau of Land Management (BLM) to the Department of Interior Board of Land Appeals (Board) if they are adversely affected. Many decisions made by the BLM are not effective during the period of time in which the developer may file an appeal. 43 C.F.R. § 4.21(a)(1). However, BLM decisions issued under 43 C.F.R. §§ 3200.1-3279.11 remain in full force and effect pending appeal. 43 C.F.R. § 3200.5. The Board issues final decisions for appeals from decisions or actions rendered by Departmental officials relating to the use and disposition of public lands and their resources, including land selections arising under the Alaska Native Claims Settlement Act. 43 C.F.R. § 4.1.

The Board of Land Appeals considers appeals from BLM decision pursuant to 43 C.F.R. §§ 4.1-4.1610.

Bureau of Land Management - Appeals Process

9-FD.d.1 – Notice of Appeal (NOA) and Petition for Stay

The developer must file a written Notice of Appeal (NOA) with Director of the BLM and the BLM office, which made the adverse decision no later than 30 days after the date of service of the decision or the date of the publication of the decision in the Federal Register. 43 C.F.R. § 4.411(a). The NOA should be accompanied by a petition for a stay of decision pending appeal (Petition for Stay). The developer bears the burden of proof to demonstrate that the Petition for Stay should be granted. The Petition for Stay must show sufficient justification based on the following factors:

  • The relative harm to the parties if the stay is granted or denied;
  • The likelihood of the developer’s success on the merits;
  • The likelihood of immediate and irreparable harm if the stay is not granted; and
  • Whether the public interest favors granting the stay. 43 C.F.R. § 4.21(a)-(b).

The developer must serve a copy of the NOA and Petition for Stay on each party named in the decision from which the appeal is taken and on the Board of Land Appeals at the same time as the documents are served on the Director of the BLM.

9-FD-d.2 – File Response to Petition for Stay (Optional)

The BLM may file a response to the Petition for Stay within 10 days after receipt of service. Failure to file a response does not result in a default on the question of whether a stay should be granted. 43 C.F.R. § 4.21(b)(3).

9-FD-d.3 – Issue Decision on Petition for Stay

The Board of Land Appeals (Board) issues a decision granting or denying the Petition for Stay in whole or in party within 45 days. 43 C.F.R. § 4.21(b)(4).

9-FD-d.4 – Statement of Reasons (SOR)

The developer must file a statement of reasons (SOR) for the appeal with the Board within 30 days after filing the NOA and Petition for Stay. The text of the SOR should not exceed 30 pages including exhibits or other attachments. The Board may dismiss the appeal if the developer fails to file the SOR within the 30-day period. 43 C.F.R. § 4.412(a).

9-FD-d.5 – File Answer to SOR (Optional)

The BLM may file an answer within 30 days of receipt of the SOR, which responds to the developer’s reasons for appeal. Failure to file an answer or motion does not result in a default judgment against the BLM. 43 C.F.R. § 4.414(a)-(c).

9-FD-d.6 to 9-FD-d.8 – File Motion for a Hearing (Optional)

Any party may file a motion with the Board to refer a case to an administrative law judge for a hearing if the appeal involves a question of fact. The motion must state:

  • What specific issues of material fact require a hearing;
  • What evidence concerning these issues must presented by oral testimony or be subject to cross-examination;
  • What witnesses need to be examined; and
  • What documentary evidence requires explanation, if any. 43 C.F.R. § 4.415(a).

The Board may order a hearing in response to a motion or on its own initiative if there are:

  • Any issues of material fact which, if proved, would alter the disposition of the appeal; or
  • Significant factual or legal issues remaining to be decided, and the record without a hearing would be insufficient for resolving them. 43 C.F.R. § 4.415(b).

The Board must specify the issues of fact upon which the hearing is to be held and request that the administrative law judge issue:

  • Proposed findings of fact on the issues presented;
  • A recommended decision that includes findings of fact and conclusions of law; or
  • A final decision that is appealable to the Board. 43 C.F.R. § 4.415(b).

9-FD-d.9 – File Appeal of Administrative Decision (Optional)

Any party may file an appeal of the decision of the administrative law judge to the Board no later than 30 days after receipt of the decision. 43 C.F.R. § 4.411(a).

9-FD-d.10 – Issue Decision

The Board will issue a decision on the merits on the case. The timeframe from the time an appeal is filed until the Board issues a decision varies; however, typically cases are decided within two years. Department of the Interior – Office of Hearings and Appeals IBLA FAQs Webpage. The Board’s decision is a final agency action and is effective on the date it is issued. 43 C.F.R. § 4.403(a).

9-FD-d.11 – File Motion for Reconsideration (Optional)

Any party may file a motion for reconsideration with the Board if there are extraordinary circumstances within 60 days after the date of issuance of the Board’s decision. Extraordinary circumstances that may warrant reconsideration include:

  • An error in the Board’s interpretation of material facts;
  • Recent judicial development;
  • Change in departmental policy; or
  • Evidence that was not before the Board at the time the Board’s decision was issued that demonstrates error in the decision. 43 C.F.R. § 4.403(b).

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