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Judicial Review of Federal Agency Action

J. Michael Klise, Proceedings of 47th Annual Rocky Mountain Mineral Law Institute (2001)

In today's increasingly complex society, there has been a tremendous growth in the administrative state and, with it, a growing need to guard against the arrogation of government power by an unaccountable bureaucracy. As Justice Scalia recently observed, ours is an era when federal statutory law administered by federal agencies is pervasive, and when the ambiguities (intended or unintended) that those statutes contain are innumerable.2 This is plainly evident in natural resources law, especially in the mining and mineral law arena, which is regulated by myriad agencies under such diverse and complex federal statutes as the Mining Law of 1872, the Federal Mine Safety and Health Act, the Federal Land Policy and Management Act, the Surface Mining Control and Reclamation Act (SMCRA), the Clean Air Act, the Clean Water Act, the Endangered Species Act (ESA), and the Mineral Leasing Act, to mention just a few.3 In addition, federal regulatory agencies themselves are subject to the constraints of statutes such as the ESA and the National [6-3] Environmental Policy Act (NEPA),4 and to pressures from advisory laws such as the National Historic Preservation Act,5 adding an additional layer of uncertainty for many natural resources businesses.

The potential for arbitrary agency conduct in these circumstances is substantial. Agency jurisdictions and statutory missions often overla