Judges: RICHARD P. IEYOUB
Filed Date: 8/24/1995
Status: Precedential
Modified Date: 7/5/2016
Dear Senator Hollis:
This is in response to your recent request for an opinion of this office concerning the State Mineral Board and whether, as a state agency, it is required to follow the provisions of the Louisiana Administrative Procedure Act, La. R.S.
Particularly, you ask whether the notice provisions of the LAPA are required to be followed when the State Mineral Board is engaged in decision making regarding oil and gas leasing.
The LAPA first became effective in July, 1967 and the State Mineral Board, as well as certain other designated agencies, were exempt from its provisions.1 The Act has been amended numerous times since its enactment, affecting most of its sections, and new sections have been added.
While the LAPA does not at this time apply to every administrative body in the State, the definition of "agency" was amended in 1974 to include many of the agencies originally excluded from the definition in the original act,2
including the State Mineral Board3. Presently, R.S.
Following the passage of the Louisiana Constitution of 1974, the Legislature effected the reorganization of government under R.S.
Therefore, the State Mineral Board has become subject to the rule making and notice provisions of the LAPA. In this regard, it should be mentioned that there are two types of notice provisions. The first is of the type intended to give notice of intended actions, as found in R.S.
With respect to the question of whether or not the State Mineral Board is subject to all notice provisions of the LAPA when engaged in decision making regarding oil and gas leasing, not all decision making requires notice to the public or to a person or entity not meeting the definition of "party" under R.S.
The courts have held that unless a statute or constitutional provision requires notice and a hearing, agency actions may not be "decisions" or "orders" governed by the LAPA, Ogburn v.City of Shreveport,
The LAPA does not create an independent right to hearing when an agency is engaged in decision-making, but merely sets forth the procedures to be used in the event that the agency is obligated to hold a hearing as may be required by the constitution or another statute. Blackett v. DEQ,
Thus, in order to reach a proper analysis of whether certain decision making activity regarding oil and gas leasing might involve or implicate the LAPA, the exact nature and extent of the decision making must be identified.
In this regard, it should be noted that Louisiana Revised Statutes
See, for instance, Volume 17, Title 43, containing detailed provisions relating to Mineral Leasing Policy, at Page 107, and similar provisions dealing with geophysical and geological surveys, at Page 153.5
However, even the policies and provisions set forth in the Louisiana Administrative Code may be waived in whole or in part by the Secretary of Natural Resources if "for just cause shown he determines that the best interests of the state are served thereby". See LR
At this point, it should be noted that rule-making and decision-making involve some complexity, depending on the exact subject matter of each, and the particular activity in question should be identified, as briefly referenced above. As discussed, rule-making requires notice whether for the purpose of adoption, amendment or repeal. See
With respect to decision making involving the adoption of agency rules, the LAPA requires that notice be given at least twice. First, prior to the adoption of the rule, and second, once the rule has been adopted.6
With respect to adjudications and hearings, the LAPA also contains rules, other than those which relate to evidence, which govern these procedures. In an adjudication or hearing, all parties shall be afforded an opportunity for hearing after reasonable notice.7 The provisions of R.S.
(1) A statement of the time, place, and nature of the hearing;
(2) A statement of the legal authority and jurisdiction under which the hearing is to be held;
(3) A reference to the particular sessions of the statutes and rules involved; and
(4) A short and plain statement of the matters asserted.
With regard to the assessment of fees by the State Mineral Board in connection with the sale of in-kind royalties, the Legislature has specifically required that the adoption of rules be in accordance with the LAPA. See La. R.S.
As you can see, there are numerous detailed provisions involved in decision-making matters regarding oil and gas leasing and, while the State Mineral Board is subject to the notice provisions of the LAPA, not every action, analysis or decision requires notice to the public at large. In order to further analyze a particular decision-making activity, we would need to know the exact type, nature and extent of the decision-making to which you make reference.
We hope this general information is of benefit to you and if we may be of further assistance, please call upon us at any time.
Very truly yours,
RICHARD P. IEYOUB ATTORNEY GENERAL
BY: ___________________________ GARY L. KEYSER Assistant Attorney General
RPI/GLK:gbe
DATE REC'D: 7/19/95
DATE RELEASED: