These comments are submitted for consideration in the finalizing of proposed revisions to the Interior Board of Land Appeals procedures. As a practitioner who has represented low-income individuals, community organizations and local governments on mining-related matters for 27 years, and has directed a non-profit environmental advocacy project providing legal assistance without charge on environmental matters for 23 years, I appreciate the opportunity to provide comments on the proposed rule. I appreciate also the extension provided until close-of-business today in which to transmit these comments.
The Kentucky Resources Council has reviewed the proposed revisions to 43 CFR Part 4, subparts E and L, and offers these comments:
KRC supports the changes in the manner of acceptable service of documents other than notices of appeal, but suggests clarification might be in order that where a party is known to be represented by counsel in a pending matter, that service of a document other than a notice of appeal on a person represented by counsel be effected by service on all counsel of record as well as all parties of record.
KRC does not oppose the change allowing, in essence, a 15-day automatic extension period that may be shortened by IBLA taking action on a pending request, but is concerned that the 2-business day timeframe for objection is unworkable, unless it is clarified that the two-day period runs on receipt of the request for extension. Otherwise, given the delays associated with first-class mail, the two-day period might expire prior to receipt of the extension request by the opposing or non-moving party.
Additionally, while approval of an opposing party will not be, necessarily, sufficient reason for granting an extension, acquiescence to such an extension is generally indicative of a lack of prejudice to the non-moving party from the additional time. A sentence should be included requiring the movant to indicate whether non-moving parties or counsel have been consulted and whether they oppose or do not oppose the request.
KRC has reviewed the proposed changes to 4.1110, 4.1270 and 4.1286 and supports those changes, as well as the removal of 4.1276.
KRC would encourage, either in this or a future rulemaking, clarification by the OHA as to the opportunity and procedure for filing briefs to supplement statements of appeal filed under 43 CFR 4.1392. In many cases, the ability of parties to file a brief once the record has been certified from the agency, would help to clarify and narrow the issues in contention. The ability to file such briefs and whether the opportunity to do so exists by request or by right is uncertain at this point.
Thank you in advance for your consideration of these comments.