Saturday, February 16, 2013

Dad, What Do You Do at Work?

Bison by Ernest Thompson Seaton
(not an official Interior Buffalo as I am not in official capacity at present)
Well, as my kids have occasionally asked that question and been bored to tears with my explanations, I though I would share that joy with you all. As I have explained ad naseum, I have to be careful about my blogging because I am a federal employee, an attorney for the U.S. Department of the Interior. I am entitled to my freedom of expression, but can't use government resources or time for political speech, and I have to keep attorney/client confidences (I do my part, but it's not like the government can ever keep a secret. Hence, my distrust of conspiracy theories.) So I don't talk about my job much. Most of it is rather boring but there are a few interesting things out there in the public domain (a few more if you have a Westlaw or Lexis subscription).

Doing another one of those Google searches to see what's out there in my internet footprint, I find the blog all over the place. And there are also a few published decisions from federal courts but mostly in administrative proceedings with my name on them. Litigation is actually a small part of my work. Most of it is advising (wrangling) client agencies to figure out how to accomplish things legally, because no federal employee can do anything for the government that is not authorized by the laws of Congress. So if you have any problems with us, go complain to Congress and I'm sure they'll fix it (heh, heh, -little joke there).

Actually, it is not at all pleasant when individual complaints about an executive branch agency go to a local Senator or Congressman as there is always a priority to respond to them (outside of passing any law). And sometimes there is gross political manipulation of the executive branch by the legislative which I'm not going into in case any staffers of the Utah delegation are reading this.

And I've already done the search for you! -not comprehensive, but a good general idea of the kinds of things I've been doing over the past 30 years. Every case reflects numerous more hours in that subject area figuring out the law, meeting with client agencies, writing or reviewing internal documents, negotiating with Indian Tribes or the general public, etc.

Public Lands - Minerals

We've already talked about my Mining Law, Dummy Locator case, now famous in BLM training. And much of the credit goes to my work associates, especially the late Emily Roosevelt. [Late note: one of my best arguments was quoted by the Board (at p. 140). BLM argues persuasively that “[t]hese signatures have a form of corporate identity but lack the substance or reality thereof.” As it's now Sunday morning (hint), I wonder how many will recognize where I got that from.]

My Tenth Circuit Geothermal case gets some attention. (By law, Congress has declared geothermal resources to be a "mineral.")

Then there is my infamous potash vs. oil & gas case. I think it still holds the record in length of time and volume of administrative record (beating out even the Spotted Owl). "After an 80-day hearing during which 37 witnesses testified and 1,200 exhibits were accepted into evidence. . . ." We pretty much won on all the important parts. Win/loss records are hard to calculate in courts. But like the DOJ attorneys say, "Justice was done," whatever the outcome.

I generally dislike oil & gas litigation. No further comment, but here, here, and here are some boring samples.

Here's one on gravel trespass where the Administrative Law Judge (deceased) was an, uhm, interesting character. We got him pretty much overturned on appeal.

And here's a trespass case on a potash lease involving some of the same people from the potash/oil & gas extravaganza.

Public Lands - Grazing

I liked litigating with cowboy attorneys. Those guys are almost as much fun as old prospectors.

This was a sad one on ear-tagging. This one is kind of interesting on the connection between private property and grazing preferences from the BLM. We won't philosophize any further on that. Changing direction only slightly, we will simply note that the purpose of the Taylor Grazing Act of 1934 was to help end the "range wars" on public lands principally between cattle and sheep interests.

One of my all time favorite cases is this one on the potential disease transmission between desert bighorn and domestic sheep. I use this case in BLM training to help explain the "reasonable and rational" standard of the Administrative Procedures Act (as opposed to "arbitrary and capricious" - even if "capricious" always sounds more fun.) The point is, the government doesn't have to be right, it just has to be able to explain its decision in a reasonable and rational way, and of course as authorized by the law.

Public Lands - General

This one is essentially a NEPA (National Environmental Policy Act) case. Yeah, OK, more boring stuff, but Congress says we have to do it. Process is what it's all about. (It gets us to "reasonable and rational.") [One little inside joke: We often say that if we get sued by both the resource development interests and the environmentalists then we probably got it right.]

And then we have this fascinating one I did on behalf of the US Forest Service on a boundary dispute. I lost, as it came down to a question as to whether the surveyor back in 1925 spoke Spanish. Who knew? (It was up in the Pecos Mountains of New Mexico.) I know this place on the Pecos as my boys and I have been up there on several Fathers & Sons and Scout outings.

Then there was the time I helped save public access to Atalaya Mountain in Santa Fe. Yep. Sometimes the work is gratifying.

Personnel Law

I'm glad not to be practicing in the field of Domestic Relations, but federal Personnel Law comes close to the same sort of ugliness. Anyway, I was surprised to see this oldie but goodie from 1987 pop up!

Then there was this one where we partially prevailed but the penalty got mitigated.

Most of my personnel cases are available only through subscription services. MSPB (the Merit Systems Protection Board) decisions are public. EEOC (Equal Employment Opportunity Commission) decisions are not unless they are taken to federal court. They are the sexier ones, unfortunately sometimes in more ways than one. A lot of my personnel cases are settled to resolve problems rather than to exacerbate them through sometimes ugly litigation.

Indian Law

Most of my work with Tribal Governments has been in complex negotiations on water rights or land settlements. My most gratifying work was in New Mexico on the settlement of land claims. The government-to-government relationship under federal law encourages settlement with Tribes. I have had a few cases litigated. Here's one on a grant denial.

This one is interesting because it was not my case but I was supervisory attorney at the time. I tried to help by providing an affidavit on the land acquisition I worked on but it didn't do the trick. The interesting thing is to see the name of the U.S. Attorney. Usually a mere formality because there is some Assistant U.S. Attorney or one of ours as a Special AUSA carrying the weight, but the name of the U.S. Attorney here is David Iglesias. Yeah. The one fired by Karl Rove or somebody. I'm going to have to tell my experiences with Iglesias and that firing story sometime.

And a more recent and perhaps the most difficult of my career I won't say much about at all. It was highly charged politically as it involved a BIA lease and BLM right-of-way for nuclear waste storage near Salt Lake City. Maybe someday after retirement . . . . Here's a brief in which I am named "of counsel" (way at the back). We did not appeal the "adverse" decision of the District Court.

As evidence that I settle some cases with Tribes, here and here are a couple of fairly recent ones resolving debts and complex accounting issues (I relied on the BIA's accountants and contracting officers). The summary dismissals don't say much, but still . . . . More importantly, and way too boring to read the whole thing (I struggled), is this recent determination in the State of Nevada on an Indian Water Rights settlement on the Owyhee River. And I was born in Oregon near where the Owyhee runs into the Snake! The best part is now that the state administrative process is over, the U.S. DOJ attorney has substituted her appearance for mine as we will now be in court. I still have to help. (Why we're in a state adjudication is a long story arising from the McCarren Amendment. You can Google it).

Getting to the Point

If you've made it this far, I'm going to give away the secret to my work. It's all part of the process of following constitutional federal law. And the litigation is allowed by Congress (otherwise we would have sovereign immunity, which we still do on some things, but we'll leave that for now). The litigation being the public's - and Indian Tribes' - opportunity to petition their government for redress. Yeah. There we are working it out under a complex, legal and bureaucratic process. The way I see it, we're serving an important public and constitutional service for the government of, by, and for the People.

But if your view is that federal employees are a bunch of worthless bums imposing needless restrictions on a free people, what exactly is your alternative? And how do you intend to pay for it?`


  1. I read a few of the links, and book marked this post to read more of the links when I can't sleep. (I hope you aren't offended.)

    I am glad that there are good and honest men who do the service which you do for our country.

    1. Thanks, Julia. Greatly appreciated.

      As for reading those opinions, it takes a lot of Diet Coke to get through them. Pleasant dreams!


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