Proposed Resolution – PLNR Opposing de facto Rulemaking

WHEREAS the Western Slope is blessed with abundant public land resources, and

WHEREAS the Bureau of Land Management (BLM) is an agency within the United States Department of the Interior that administers America’s public lands, totaling approximately 253 million acres, or one-eighth of the landmass of the country, and

WHEREAS the BLM also manages 700 million acres of subsurface mineral estate underlying federal, state, and private lands, and

WHEREAS BLM’s stated mission is to sustain the health, diversity and productivity of the public lands for the use and enjoyment of present and future generations, and

WHEREAS the responsible and proper management of those lands is important to the long-term health and sustainability of our Western Slope communities and their economies, and

WHEREAS Instruction Memoranda (IM’s) are temporary directives that supplement the Bureau Manual Sections. Instruction Memoranda:

  • contain new policy or procedures that must reach BLM employees quickly,
  • interpret existing policies or,
  • provide one-time instructions.

WHEREAS IM’s are not allowed to have “binding effect” on either the agency or a regulated party, and

WHEREAS IM’s that appear to “command” and “dictate” have been struck down in lawsuits because they were written with “binding”-sounding language. Alternatively, phrases such as “in general” or “in some cases it may be permissible” have moved courts to conclude that guidance is not a rule, and

WHEREAS if the guidance have the practical effect of adding to or reducing obligations, burdens, prohibitions, or restrictions in ways that could not be reasonably ascertained from the text of the statute or existing regulations, a court would be highly suspicious of the guidance, and

WHEREAS DC Circuit cases have ruled that an agency changing or reversing course regarding a policy on which parties have had notice and relied upon must do so through APA rulemaking even if the original policy was only embedded in non-rulemaking guidance, and

WHEREAS on January 18, 2007, the President Bush issued Executive Order 13422,22 amending Executive Order 12866, President Bush’s new Order, along with a new OMB “Final Bulletin for Agency Good Guidance Practices” issued the same day, creates a similar set of process requirements for agencies issuing “significant” guidance documents,and

WHEREAS the new Order and Bulletin define “significant” guidance document disseminated to regulated entities or the general public that may reasonably be anticipated to:

(i) Lead to an annual effect on the economy of $100 million or more or

adversely affect in a material way the economy, a sector of the economy,

productivity, competition, jobs, the environment, public health or safety, or State,

local, or tribal governments or communities; if a document meets this criterion it is defined as an “economically significant guidance document.”

(ii) Create a serious inconsistency or otherwise interfere with an action taken or

planned by another agency;

(iii) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(iv) Raise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set forth in Executive Order 12866, as further amended, and

WHEREAS BLM has been using IMs, to get around formal rule making, and lawsuits have overturned IMs because judges agreed that the IM essentially rewrote a statute, and BLM’s failure to conduct proper rulemaking with public comment was also cited as a deficiency in the policy, and

WHEREAS challenging the BLM in a court of law “suspect IMs” cost companies millions of dollars so the BLM de facto rule making continues, and

THEREFORE BE IT RESOLVED that CLUB 20 opposes utilizing guidance documents that appear to perform a function that Congress has specifically authorized or directed the agency to perform through issuance of regulations, and

BE IT FURTHER RESOLVED that CLUB 20 recognizes that agencies faced with politically sensitive issues of law with aggressive advocates on both sides, that agencies are often tempted to craft compromise positions in IM’s that are frequently “draft” or “interim, and CLUB 20 does not support any agency’s attempt to circumvent its legal obligations and/or avoid judicial review through guidance, and

BE IT FURTHER RESOLVED CLUB 20 opposes the agency labeling of documents as “policy guidelines” when the agency did not publish the document in the Code of Federal Regulations, and

BE IT FURTHER RESOLVED that CLUB 20 believes it is almost always better to allow for some sort of public input because regulated entities generally are closer to the subject matter of their businesses than are regulators, and information from these entities can improve guidance by tailoring it more precisely and averting unintended consequences, and

BE IT FURTHER RESOLVED that CLUB 20 believes similarly, that public interest groups that track certain issues closely may provide valuable insights and catch things agency staff may not have thought of.

Draft February 21, 2013