Commentary

Of Budgets, Staff Shortages, and a “Let Them Eat Cake” Moment

I wouldn’t ordinarily find myself reading a Board of Land Appeals decision in a grazing matter, let alone commenting on it. But the Board’s opinion in Jeffrey O. Roche v. U.S. Bureau of Land Management, 195 IBLA 266, issued on June 19, 2020, caught my eye. And not in a good way.

In a nutshell, the Board’s decision in this case affirmed a July 2016 ruling by an Administrative Law Judge, that a letter from BLM to a grazing permit applicant, stating “that BLM has assigned his application ‘a low priority at this time,’ and will ‘likely . . . not be able to work on [the] application within the foreseeable future,’” is not an appealable decision. The Board’s decision, on the one hand, is pretty clearly correct on the merits. But on the other, it’s a stark indictment of the state of BLM’s operations (and the Board’s appeal process as well).

The decision describes BLM’s letter as explaining “that BLM had ‘reviewed the Salt Lake Field Office priorities for grazing administration and its current and expected staffing levels.’ The letter noted that hiring a contractor, ‘while helpful, . . . does not alleviate a measurable portion of [BLM’s] workload,’ because based on BLM’s ‘experience with contracted work,’ ‘significant BLM staff time [would be] required to provide direction for and review of any [work] that [Roche] may contract out. . . . Because [the grazing allotment] is not in sage grouse habitat, it is highly likely BLM will not be able to work on your application within the foreseeable future, given our current and expected staffing and budget levels. Allotments with Sage Grouse habitat will dominate the Salt Lake Field Office priority for grazing administration for the foreseeable future . . . .’” In other words, BLM states that it is unable to take timely action because of a combination of (1) staff shortages that have been imposed by its budget and (2) arbitrary and inflexible priorities that it has imposed on itself.

It’s interesting to learn that these conditions aren’t confined to BLM’s oil and gas leasing program, where I’ve seen them affect everything from the processing of leasing nominations to the approval of lease assignments (although at least the BLM offices that I principally work with, to their credit, have been receptive to the potential role of contractors in expediting the review of nominations). And it’s up to BLM (not the Board) to reconsider the system of priorities by which BLM has bound itself. (For instance, if grazing applications in sage-grouse areas require additional work by BLM, is that really a reason to defer processing the more-straightforward applications outside of those areas that implicitly will require less work?) Yet the Board, in the relish with which it proclaims that an applicant in this situation has no recourse, is jarringly tone-deaf: “[T]o transform BLM’s courtesy letter informing Roche of his application’s place in the agency’s queue into an appealable decision ‘would discourage BLM from responding to such inquiries, resulting in a chilling effect on the Department’s commitment to government transparency and public access to information.’” Far from expressing concern over BLM’s inability to carry out its responsibilities, the Board, in a “let them eat cake” moment, declares that the applicant should be grateful that BLM responded to his inquiry at all. (And as if to rub it in, the Board allowed four years to elapse between the filing of this appeal and the Board’s ruling on it.)

But the question of staff shortages and budgets raises a much larger issue. The BLM staff whom I regularly work with on oil and gas matters are all good people, and most of them are highly capable and dedicated. But they can’t be expected to work 24-7 in order to get their jobs done, which – at current staffing levels – is what they’d have to do. So, while I’m not happy about the excessive time that it often takes for BLM staff to act on matters that they’re working on (and do what I can to help maintain their focus), I recognize why it happens. (Except for BLM’s proclivity to divert staff from their regular duties to multi-week details elsewhere; but that’s another topic.)

Ronald Reagan understood that, just because an idea may be good, that doesn’t automatically mean that it’s something that should be done by government; and that, if it’s something that should be done by government, that doesn’t automatically mean that it’s something that should be done by the federal government. But Ronald Reagan also understood that there are some things – a strong national defense, a safe air traffic control system, a social safety net for our most-vulnerable citizens, and much else besides – that must be done by the federal government. BLM’s management of federally-owned natural resources – including oil and gas – inherently falls into the category of things that must be done by the federal government; and – just as no private business can succeed without adequate staff – that means that BLM must be given sufficient funds to retain the staff that it needs to fulfill all of its responsibilities.

Congress, at least in recent decades, seemingly has often put the cart before the horse in its budget decisions, checking off a list of what programs should be funded with little regard to whether they are or aren’t things that the federal government should be doing in the first place, and then appropriating amounts for those programs based more on what revenues are available from a combination of current tax levels and deficit spending than on what amounts are actually necessary for those programs to be properly carried out. Both parties are equally complicit (and probably will continue to be until there is a Constitutional amendment that requires the budget – except during national emergencies – to be balanced). But for agencies such as BLM to be able to effectively do their jobs, Congress must rise to its moral obligation, by first establishing which programs the federal government should be responsible for, and then ensuring that the federal government takes in – and appropriating – whatever amount of revenue those programs require.

— August 2020

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