Special Institute on

Natural Resources Development and the Administrative State: Navigating Federal Agency Regulation and Litigation

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Wednesday Morning

Registration

  1. ALEX RITCHIE

    Executive Director Rocky Mountain Mineral Law Foundation, Westminster, CO
  2. William B. Prince

    President, Rocky Mountain Mineral Law Foundation Dorsey & Whitney LLP, Salt Lake City, UT
  3. Hadassah M. Reimer

    Holland & Hart LLP, Jackson, WY
  4. CARLOS R. ROMO

    Shareholder Lewis Bess Williams & Weese P.C., Denver, CO

Introductions and Opening Remarks

  1. JUSTIN PIDOT

    Professor University of Denver Sturm College of Law, Denver, CO

Ninja Elephants in the Oilfields, Gas Patches, Coal Mines, and Timber Stands – Administrative Law & Natural Resources Development

  • Critical context to refresh seasoned practitioners and provide working familiarity for those new to the subject
  • Influence of administrative agencies, agency authority, the Administrative Procedure Act, and agency action and inaction
  • Other means by which agencies set policy

Hosted Refreshment Break

  1. L. POE LEGGETTE

    Managing Partner Baker & Hostetler LLP, Houston, TX
  2. SHANISHA Y. SMITH

    Associate Baker & Hostetler LLP, Houston, TX

Back to the Basics – Agency Rulemaking and Agency Adjudications 101

  • Legal basics of formal and informal agency rulemaking, with a focus on the powers and limits of agencies to adopt new regulations and repeal existing regulations
  • When rulemaking is required and when not, exceptions to informal rulemaking requirements, interpretive rules, and related topics
  • What is considered an adjudication, and the process and outcomes associated with agency adjudications

  1. TOM BYRON

    Assistant Director U.S. Department of Justice; Adjunct Professor of Law, Georgetown Law, Washington, D.C. (invited)
  2. PAUL M. SEBY

    Shareholder Greenberg Traurig LLP, Denver, CO (invited)

Policy Directives from the Oval Office – Executive Orders and Other Presidential Instruments

  • Overview of the powers of the President
  • Authority of the President to issue Executive Orders
  • Non-agency directives and interpretive rules

Lunch – On Your Own

Wednesday Afternoon

  1. Nada Wolff Culver

    Senior Counsel and Senior Director, Agency Policy and Planning BLM Action Center, The Wilderness Society, Denver, CO
  2. SUSAN JANE BROWN

    Staff Attorney Western Environmental Law Center, Portland, OR
  3. BARCLAY T. SAMFORD

    Senior Trial Attorney U.S. Department of Justice Environment and Natural Resources Division, Washington, D.C. and Denver, CO; Adjunct Professor, University of Denver Sturm College of Law, Denver, CO
  4. MIKE SCHON

    Deputy Chief Counsel U.S. Chamber Litigation Center, Washington, D.C.

From Babbling Brooks to Roaring Rapids – Effective Participation in Agency Rulemaking, Adjudications, and Public Land Processes

  • Practical tips for effective participation in agency actions pre-decision, including influencing agency decisions before a proposed action
  • Submitting comments to agencies on proposed rules, land management, and project decisions under NEPA
  • Influencing agency action, participating in agency adjudications, and participating in administrative litigation
  • When and how a proponent might want to make comments on their own project

  1. Rebecca W. Watson

    President-Elect, Rocky Mountain Mineral Law Foundation Welborn Sullivan Meck & Tooley, P.C., Denver, CO
  2. Matthew J. McKeown

    Regional Solicitor U.S. Department of the Interior, Office of the Solicitor, Denver, CO
  3. JULIE MURPHY

    Director Colorado Oil and Gas Conservation Commission, Denver, CO
  4. PILAR M. THOMAS

    Of Counsel Lewis Roca Rothgerber Christie LLP, Tucson, AZ

We’re Off to See the Wizard – How Do Agencies Reach Decisions?

Current and former agency decision-makers convene for a candid discussion on:

  • How agency decisions are made
  • The most effective means for stakeholders to provide input
  • How agencies respond to and settle litigation
  • The influence of political forces

Hosted Refreshment Break

  1. LAURA L. LOPEZ

    Attorney Jones & Keller P.C., Denver, CO
  2. DAVID A. ZISSER

    Jones & Keller P.C., Denver, CO

Balance of Power – Constitutional Limits on Agency Action

  • Constitutional limits on agency authority and action
  • Appointments clause, due process limitations, and takings
  • Recent Article III constitutional challenges to the authority of Administrative Law Judges, agency adjudicatory authority, the non-delegation doctrine, and separation of powers issues

  1. CHRIS FRENCH

    Associate Deputy Chief U.S. Department of Agriculture, Washington, D.C.
  2. JANE C. LUXTON

    National Oceanic and Atmospheric Administration, U.S. Department of Commerce; Member, Clark Hill PLC, Washington, D.C.

Current Perspectives on Regulatory Reform

  • Current initiatives focused on regulatory reform
  • Executive Order requiring agencies to cut two regulations for every new regulation
  • Agency reorganization at the Department of the Interior
  • Streamlining agency decisions under the National Environmental Policy Act and other laws

Hosted Reception for Registrants, Speakers, and Guests

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Thursday Morning

  1. DEANA BENNETT

    Shareholder Modrall Sperling, Albuquerque, NM

Welcome to the Thunderdome – Administrative Appeals and Natural Resources

  • Overview of the ways a party can challenge agency action at the agency level and in administrative appeals
  • BLM State Director Reviews, DOI hearings, Interior Board of Land Appeals, Interior Board of Indian Appeals, and U.S. Forest Service proceedings

  1. VARU CHILAKAMARRI

    Appellate Attorney U.S. Department of Justice, Washington, D.C.

Chasing Away Paper Tigers – Litigation Under the Administrative Procedure Act

  • Key issues for litigation of agency rulemakings and adjudications under the Administrative Procedure Act
  • Exhaustion of administrative remedies, waiver of sovereign immunity, final agency action, standing, ripeness, administrative record, and intervention

Hosted Refreshment Break

  1. EVAN YOUNG

    Partner Baker Botts LLP, Austin, TX

Keep Calm and Carry On – Judicial Deference to Agency Interpretations

  • Interpretations Judicial deference to agency interpretations, including the Skidmore, Chevron, and Auer doctrines
  • Judicial opposition to the Auer and Chevron tests
  • Potential jurisprudential effects from the appointment of new justices to the U.S. Supreme Court 

  1. JACOB P. ARECHIGA

    Special Counsel Duane Morris LLP, Austin, TX
  2. MEGAN CERONSKY

    Executive Director Center for Applied Environmental Law and Policy, Denver, CO
  3. KENT HOLSINGER

    Managing Partner Holsinger Law, LLC, Denver, CO
  4. MARY WHITTLE

    Partner Guerrero & Whittle PLLC, Austin, TX

Clear Cutting the Regulatory Forest – Repeal and Replacement of Rules by New Presidential Administrations

  • Overview and update on the Congressional Review Act
  • Overview and update on cases involving judicial review of recent efforts to repeal and replace rules affecting natural resources development

Lunch – On Your Own

Thursday Afternoon

  1. KEVIN D. COLLINS

    Partner Bracewell LLP, Austin, TX

Canaries in the Coal Mines - Agency Enforcement and Investigations

  • Agency enforcement proceedings
  • Unilateral agency orders
  • Civil penalties
  • Consent decrees
  • Audit privilege

  1. Ezekiel J. Williams

    Managing Director Lewis, Bess, Williams & Weese P.C., Denver, CO; Adjunct Professor of Administrative Law, University of Denver Sturm College of Law, Denver, CO

The Agency Can(not) Take It Away – Retroactive Agency Actions

  • Retroactive effect of agency actions:  Modifications or cancellation of federal oil and gas leases, revocation of Forest Service special use permits, revisions to federal land use plans, rulemakings, and agency legal interpretations
  • Valid existing rights, the manifest injustice doctrine, and other administrative law retroactivity doctrines in the context of natural resource rulemakings and adjudications

Coffee Break

  1. THOMAS P. MCLISH

    Partner Akin Gump Strauss Hauer & Feld LLP, Washington, D.C.

Just Compensation – Takings Claims Before the Court of Federal Claims

  • Process and options on takings claims
  • Choosing between a takings claim in the Court of Federal Claims or an Administrative Procedure Act suit

  1. WENDY K. HARVEL

    Of Counsel Formerly Texas State Office of Administrative Hearings, Austin, TX; Of Counsel Coffin Renner, Austin, TX
  2. TINA HYMER

    Senior Counsel former U.S. Department of Energy; Senior Counsel, Chevron, San Ramon, CA
  3. KENNON L. WOOTEN

    Partner Scott Douglass McConnico, Austin, TX

Avoiding Ethical Dry Holes – Ethics & Administrative Law

  • Duties owed to the client, including maintaining privilege and confidential information
  • Duty to cooperate with agencies
  • Ethical responsibilities, including ex parte communications
  • Applicable ABA Model Rules of Professional Conduct that arise from the practice of administrative law

Course Adjournment