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Challenging Agency Action and Inaction: The Problem of Leading a Horse to Water

Constance E. Brooks, Natural Resources and Environmental Administrative Law and Procedure II

Compelling an administrative agency to act or preventing the agency's decision from being implemented is a difficult objective. A lawyer needs to be thoroughly grounded in the more arcane aspects of administrative procedure, especially the procedures of a particular agency, the complexities of federal court jurisdiction, and then equally well-versed in how to prepare a record which can withstand even the most rigorous government defenses.

Regardless of whether the client wishes to use or to protect public land resources, there are common problems when the Department of the Interior (“DOI”), the Bureau of Land Management (“BLM”), or the Department of Agriculture, Forest Service (“Forest Service”) simply fails to act or acts contrary to law. If the BLM or Forest Service issues a decision, there are procedures for an administrative appeal 1 and then procedures to take the case to federal court. The legal options are less clear when no action is taken and years are allowed to elapse while the status quo remains in place. Certainly, members of environmental groups object when the BLM or the Forest Service fail to adopt allotment management plans for livestock grazing on specific allotments. Oil companies find themselves frustrated when public lands which are classified as available for sale under the Mineral Leasing Act 2 never appear on the sale list, despite assurances th