Rules, Adjudications, and Other Sources of Law in an Executive Department: Reflections on the Interior Department's Administration of the Mining Law
Professor Strauss presents in this article a detailed case study of policymaking by the Department of the Interior in its administration of mining law. The antiquated nature of the General Mining Law of 1872, essentially unchanged since its enactment, has placed a great responsibility for "writing" the law of mining claims upon the Department, highlighting the problems that exist with the Department's internal allocation of its policymaking function. The focus of this piece is a study of those problems and an examination of possible remedies. Professor Strauss criticizes, in particular, the inaccessibility of Department "law" and the Department's excessive reliance upon adjudication rather than rulemaking to make policy. Even though rulemaking would create a more accessible body of agency policy and procedure, increase public participation and advance other jurisprudential values, bureaucratic obstacles currently discourage resort to this vehicle. Moreover, the Department's rulemaking branch has virtually no control over the adjudicatory body, leaving essentially unfettered policymaking power in the hands of a body whose own procedures make it unsuited for the task; this bifurcation of the rulemaking and adjudicatory functions within the Department has also resulted in an incoherent and inconsistent overall departmental policy.
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- May 12, 2016