Final Report on Co-Stewardship Authorities
14
As relevant here,
35
the doctrine of sub-delegation limits a federal agency’s ability
to sub-delegate the authority that Congress provides it to entities outside the
agency.
36
Sub-delegations of agency authority to outside parties may blur the lines
of governmental and political accountability, and could allow a sub-delegee to
pursue goals inconsistent with an agency’s own.
37
The sub-delegation doctrine is
intended to avoid such results by barring an agency from sub-delegating its final
decision-making authority to parties outside the agency absent affirmative evidence
that Congress intended the agency to be able to do so.
38
Generally speaking, keeping “final reviewing authority” means more than just
having an option to withdraw from a relationship with a non-Federal entity. Any
arrangement with a non-Federal party must support the national interest and not
inappropriately subordinate the role of the agency to parochial interests. It means
keeping meaningful control over an outside partner’s activities, for example,
through oversight, veto, or otherwise.
Further, it should be noted that sub-delegations involving Tribes may be considered
differently than those with private entities. The U.S. Supreme Court in U.S. v.
Mazurie has held that the limits on sub-delegation are “less stringent in cases where
the entity exercising the delegated authority itself possesses independent authority
over the subject matter”
39
and that federally recognized tribes in Indian country
“are a good deal more than ‘private, voluntary organizations’.”
40
Based on Mazurie,
courts have viewed sub-delegations giving a Tribe a measure of added control over
its own tribal lands differently than those to an entity lacking any independent
jurisdiction.
41
It is important to note, however, that maintaining final reviewing authority does not
prevent other forms of involvement by outside parties in an agency’s decision-
35
Though the doctrine includes sub-delegations to subordinate officers within an agency, sub-
delegations within an agency presumptively permissible absent affirmative evidence of a
Congressional intent. U.S. Telecom Ass’n v. F.C.C., 359 F.3d 554, 565 (D.C. Cir. 2004). See also
Kobach v. U.S. Election Assistance Comm’n, 772 F.3d 1183, 1190 (10th Cir. 2014); La. Forestry
Ass'n, Inc. v. Sec'y U.S. Dep't of Labor, 745 F.3d 653, 671 (3d Cir.2014); Frankl v. HTH Corp., 650
F.3d 1334, 1350 (9th Cir.2011); United States v. Mango, 199 F.3d 85, 91–92 (2d Cir.1999); House
v. S. Stevedoring Co., 703 F.2d 87, 88 (4th Cir.1983); United States v. Gordon, 580 F.2d 827, 840
n. 6 (5th Cir.1978); United States v. Vivian, 224 F.2d 53, 55–56 (7th Cir.1955). See also Jason
Marisam, Duplicative Delegations, 63 A
DMIN. L. REV. 181, 242 (2011) (the topic of sub-delegation
no longer discussed in administrative law treatises and casebooks as it once was); Thomas W.
Merrill, Rethinking Article I, Section 1: From Nondelegation to Exclusive Delegation, 104 C
OLUM.
L. REV. 2097, 2175 n. 305 (2004).
36
Franz, supra note 33, at 16.
37
U.S. Telecom Ass’n v. F.C.C., 359 F.3d at 565-66.
38
U.S. Telecom Ass’n v. F.C.C., 359 F.3d at 566; National Park and Conservation Ass'n v. Stanton,
54 F.Supp.2d 7, 18 (1999) (federal agency may not completely shift responsibility to private actor);
Bellion Spirits, LLC v. United States, 393 F.Supp.3d 5, 15 (D.D.C. 2019).
39
U.S. v. Mazurie, 419 U.S. 544, 556-67 (1975) (upholding delegation of authority to Tribes to
regulate liquor in Indian country).
40
U.S. v. Mazurie, 419 U.S. at 557.
41
Assiniboine and Sioux Tribes of Fort Peck Indian Reservation v Bd. of Oil and Gas Conservation
of State of Montana, 792 F.2d 782, 795 (9th Cir. 1986).