(a) Secretary. Nothing in this part may deprive the Secretary of any power conferred upon the Secretary by law including:
(1) The authority to take jurisdiction at any stage of any case before any employee of the Department, including any judge or other presiding officer of OHA, and render the final decision in the matter after holding such hearing as may be required by law; and
(2) The authority to review any decision of any employee of the Department, including any judge or other presiding officer of OHA, or to direct any such employee or employees to reconsider a decision; and
(3) The authority to appoint judges to OHA.
(b) Director. Nothing in this part may deprive the Director of any power delegated by the Secretary or otherwise conferred upon the Director by law.
(1) The Director may assume jurisdiction of any case before any Appeals Board or review any decision of any Appeals Board or direct reconsideration of any decision by any Appeals Board.
(2) The Director has the authority to appoint an Ad Hoc Board of Appeals, designate presiding officers to conduct hearings or proceedings, identify appropriate procedures if not otherwise specified by statute or regulations, or fulfill other hearings and appeals needs of the Department.
(3) The Director is responsible for the internal management and administration of OHA and its units including managing case dockets. The Director is authorized to carry out such other duties as may be necessary to conduct the routine business of OHA and its units.
(4) The Director may issue OHA Standing Orders to convey current information to parties and the public. This includes, but is not limited to, the OHA Standing Orders on Contact Information for Department of the Interior offices referenced in this part and the OHA Standing Orders on Electronic Transmission to convey information related to electronic transmission, including filing and service. The OHA Standing Orders may be issued in the event of an emergency or other contingency. The OHA Standing Orders are available on the Department of the Interior OHA website at https://www.doi.gov/oha.
(c) Exercise of reserved power. If the Secretary or Director assumes jurisdiction of a case or reviews a decision, the parties and the appropriate Departmental personnel will be advised of such action, the administrative record will be requested, and, after the review process is completed, the Secretary or Director will issue a decision.
Notes of Decisions
Impact Energy Resources, LLC v. Salazar, 693 F.3d 1239 (10th Cir. 2012).
· cites it 12× “See 43 C.F.R. § 4.5 (Secretary possesses the “authority to take jurisdiction at any stage of any case before any employee or employees of the Department” and the “authority to review any decision of any employee or employees of -7- the Department”).”
Hopi Tribe v. United States, 55 Fed. Cl. 81 (Fed. Cl. 2002).
· cites it 2× “Subsequent to the commencement of the instant litigation, the Secretary, pursuant to 43 C.F.R. § 4.5 issued a notice that the Department was reviewing the IBIA’s decisions holding that § 640d-7(e) was money-mandating.”
Ken McMaster v. United States, 731 F.3d 881 (9th Cir. 2013).
“1993), but Solicitor Opinions, which are binding on the IBLA and can overrule IBLA decisions are not, see 43 C.F.R. 4.5(a). But, since we ultimately conclude that the Solicitor’s Opinion is entitled to Skidmore deference, the question of whether Chevron applies is not…”
Silver State Land, LLC v. Janice Schneider, 843 F.3d 982 (D.C. Cir. 2016).
“The Bureau recommended that the Secretary “assert jurisdiction over this matter pursuant to 43 C.F.R. § 4.5 (a) and direct the [Bureau] to: (i) not issue the patent to Silver State, or its successors or assigns, (ii) terminate the sale, and (iii) refund any monies still held by…”
Rosebud Sioux Tribe v. Gover, 104 F. Supp. 2d 1194 (D.S.D. 2000).
· cites it 3× “Plaintiffs further argue that defendants and intervenors fail to demonstrate that 43 C.F.R. § 4.5 , which allows the Secretary and Director to assume jurisdiction over a matter or to review decisions made by lower ranking officials, confers such “reserved powers” upon an…”
Rowe v. United States, 464 F. Supp. 1060 (D. Alaska 1979).
· cites it 3× “However, prior to a decision in the matter the Secretary assumed original jurisdiction over the appeal, under authority of 43 C.F.R. 4.5 (April 15, 1971). Also involved in the appeals were the still-pending oil and gas lease applications of plaintiffs.”
Marathon Oil Co. v. United States, 807 F.2d 759 (9th Cir. 1986).
· cites it 2× “” 43 C.F.R. § 4.5 (a) (1985). The Secretary exercised this power and issued a final decision that required Marathon to comply with the previous two orders.”
Sierra Club v. Watt, 608 F. Supp. 305 (E.D. Cal. 1985).
“43 C.F.R. § 4.5 (1984). 11 . In Santa Fe Pacific Railroad Co.”
Stratman v. Leisnoi, Inc., 545 F.3d 1161 (9th Cir. 2008).
“2 (a)(5) (providing that “[d]e-cisions of the Board on village eligibility appeals are not final until personally approved by the Secretary”), and 43 C.F.R. § 4.5 (a)(2)(granting the Secretary authority to “review any decision of any employee or employees of the Department .”
Aleknagik Natives Ltd. v. Andrus, 648 F.2d 496 (9th Cir. 1980).
· cites it 2× “Furthermore, the Secretary has the power to take jurisdiction at any time of a case being considered by ANCAB, see 43 C.F.R. § 4.5 (a)(1), and to review all ANCAB decisions, see 43 C.”
Aera Energy LLC v. Salazar, 642 F.3d 212 (D.C. Cir. 2011).
“In any event, we are dubious about that theory given that the Secretary has expressly “reserved” authority to take over and render a final decision about matters arising under the Outer Continental Shelf Lands Act, 43 C.F.R. § 4.5 (a)(1); that Department regulations authorize…”
— 43 C.F.R. § 4.5(a) — 3 cases
Ken McMaster v. United States, 731 F.3d 881 (9th Cir. 2013).
“1993), but Solicitor Opinions, which are binding on the IBLA and can overrule IBLA decisions are not, see 43 C.F.R. 4.5(a). But, since we ultimately conclude that the Solicitor’s Opinion is entitled to Skidmore deference, the question of whether Chevron applies is not…”
Marathon Oil Co. v. United States, 807 F.2d 759 (9th Cir. 1986).
“” 43 C.F.R. § 4.5 (a) (1985). The Secretary exercised this power and issued a final decision that required Marathon to comply with the previous two orders.”
Marathon Oil Co., an Ohio Corp. v. United States of Am. United States Dep't of the Interior Donald Hodel, Sec'y of the Interior Esther Wunnicke, Comm'r of the Dep't of Nat. Resources, State of Alaska Cook Inlet Region, Inc., an Alaska Corp., Cook Inlet Region, Inc., an Alaska Corp., Counterclaimant v. Marathon Oil Co., an Ohio Corp., Counterdefendant, 807 F.2d 759 (9th Cir. 1986).
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