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Colorado-Ute Elec. Ass'n v. Watt

Citation: 12 ELR 20656
No. No. 80-C-500, 533 F. Supp. 197/(D. Colo., 02/03/1982)

The court upholds regulations of the Bureau of Land Management (BLM) requiring right-of-way permit applicants under § 304 of the Federal Land Policy and Management Act (FLPMA) to pay the agency's processing costs. It rules that the Secretary of the Interior is authorized to require applicant to reimburse BLM for reasonable application costs without applying § 304's reasonableness factors on an individual basis. Moreover, § 304 authorizes but does not require the Secretary to consider factors other than actual costs in determining what costs are reasonable. Furthermore, § 304 is not an unconstitutional delegation by Congress of the power to tax. Since Congress identified costs of environmental impact statement (EIS) preparation as reasonable costs, BLM may recover its full EIS costs. Although environmental reviews confer benefits on the public, they are a necessary part of the cost of providing a special benefit to the applicant. Nonetheless, an applicant may challenge the assessment of costs actually incurred that are not reasonably necessary for processing its application. Finally, retroactive application of the reimbursement regulations to plaintiff's pending application does not violate principles of due process. Not only had no application been granted, but plaintiff had notice of the regulations before they became effective and could have withdrawn its application but chose not to do so.

Counsel for Plaintiff
R. Gregory Haller, Stephen N. Mathis
Mathis & Koonce
9 N. Cascade Ave., Montrose CO 81401
(303) 249-2546

Counsel for Defendants
Richard A. Jost, Ass't U.S. Attorney
C-330 U.S. Cthse., Drawer 3516, Denver CO 80294
(303) 837-2081

Steven A. Herman, Carolyn P. Osolinik
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5391