ADMINISTRATIVE REVIEW OF U.S.D.A. FOREST SERVICE DECISIONS

• Jurisdiction: United States

Natural Resources and Environmental Administrative Law and Procedure II
(Sep 2004)
CHAPTER 3B
ADMINISTRATIVE REVIEW OF U.S.D.A. FOREST SERVICE DECISIONS
Michael J. Gippert
Ronald Mulach
Natural Resources Division
Office of the General Counsel
U.S. Department of Agriculture
Washington, D.C.

Michael J. Gippert is Assistant General Counsel, USDA Office of the General Counsel, Natural Resources Division. Prior to being appointed Assistant General Counsel, he served as Deputy Assistant General Counsel from 1985-95, Deputy Regional Attorney in Denver, Colorado from 1983-85, staff attorney in the Denver Office from 1978-83, and staff attorney in NRD from 1973-77.

He has a B.S. (history and education) from Michigan State University, a law degree from the University of Arizona, and Master of Laws (environmental law) from George Washington University.

Ronald W. Mulach is an attorney with the USDA Office of the General Counsel, Natural Resources Division. He received his Bachelor's degree in forestry in 1984 from the University of Illinois and also has received degrees in natural resource economics (M.S., Univ. of Georgia 1986), public administration (M.P.A., Univ. of Tennessee 1987), and law (J.D., Univ. of Georgia 1990).

Reprinted from Natural Resources and Environmental Administrative Law and Procedure, Paper 14C (Rocky Mt. Mineral Law Fdn. 1999).

Table of Contents

I. Overview

A. Forest Service Mission

B. Forest Service Staged Decisionmaking

C. Forest Plans

D. Site Specific Projects

II. Forest Service Administrative Appeal Procedures

A. Administrative Appeals Under 36 CFR 215

B. Administrative Appeals Under 36 CFR 217

C. Administrative Appeals Under 36 CFR 251.80

III. Looking Ahead

IV. Conclusion

Appendix A: Forest Service Administrative Appeal Procedures Other than 36 CFR 215 , 217, or 251.80

Appendix B: Statistics Concerning Forest Service Administrative Appeals

Appendix C: Selected Forest Service Administrative Appeal Court Decisions

Appendix D: Reference Materials Concerning National Forest Planning and Administrative Appeals

Prepared by Michael J. Gippert, Assistant General Counsel, and Ronald Mulach, Attorney, Natural Resources Division, Office of the General Counsel, USDA, Washington, D.C. The views expressed herein are those of the authors and not necessarily the USDA.

I. Overview

A. Forest Service Mission

The mission of the U.S. Forest Service, as established by Chief Mike Dombeck in the 1998 Natural Resource Agenda, involves four elements:

Watershed health and restoration,

Sustainable forest ecosystem management,

Forest road system management,

Recreation.

The agency's goal is to "help people live in productive harmony with the watersheds that sustain us all." The Chief has challenged the agency to "find ways to involve more people, to provide cleaner water, and to make decisions that afford even greater protection of, and benefits from, our natural resources as we carry out our multiple use mandate." ¹

Over the past 50 years Forest Service administrative appeal processes have shifted back and forth between informal and formal procedures. Since 1965 the appeal processes concerning land management planning have undergone considerable change as the public has become more involved in agency decisionmaking. In 1989 an important revision of appeals procedures occurred, resulting in two major appeal rules for National Forest System planning and management decisions: 36 CFR 217 for appeal of forest planning decisions, and 36 CFR 251.80 appeals by persons or organizations holding or applying for written instruments authorizing the use of National Forest System lands.

In 1992 the agency undertook a year-long review and evaluation of its appeal procedures. The 1992 review uncovered many problems with the procedures and led to the publication of a proposed rule amending the 36 CFR 217 process to provide for a pre-decisional public involvement process rather than post-decisional administrative appeal of forest planning decisions. No change to 36 CFR 251.80 was proposed. The Forest Service received over 30,000 comments on the proposed rule. Before a final rule could be published, Congress enacted Section 322 of the Interior Appropriations Act of Fiscal Year 1993 (Public Law 102-381), legislating both pre-decisional notice and comment as well as a post-decision administrative appeal for Forest Service "projects and activities implementing land and resource management plans." Thus, the agency currently has three major administrative appeal regulations which apply to different aspects of it staged decisionmaking process for land management planning: 36 CFR 215 , 217, and 251.80 . However, on October 5, 1999 USDA published Proposed NFMA Planning Regulations, 36 CFR 219 (64 Fed. Reg. 54074), including a new "objection" procedure to replace administrative appeals of certain forest plan decisions. The three current appeal processes and the proposed rule are discussed below.

B. Forest Service Staged Decisionmaking

The Forest Service implements the Natural Resource Agenda and administers the National Forest System which is 191 million acres or 8.5% of the United States through a system of staged decisionmaking. There are 156 National Forests and Grasslands. Forest Service line officers issue thousands of land management decisions each year accompanied by NEPA documentation (Environmental Impact Statement (EIS), Environmental Assessment (EA), or Categorical Exclusion (CE)) and subject to administrative appeal. There are currently four levels ² of Forest Service land management decisionmaking:

National Resources Planning Act Program (every 5 years, no EIS 1990); and Assessment (every 10 years); not subject to administrative appeal.

Regional Regional Guide and EIS (not required by statute, required by 36 CFR 219.4 ; no set time period for adjusting). The areas for Regional Guides are the nine Forest Service administrative regions for National Forest Systems. The decision document for Regional Guide approval and amendment is subject to administrative appeal under 36 CFR 217 .

Forest Plan Land and Resource Management Plan (LRMP or forest plan) and EIS is required for each administrative unit of National Forest System and must be amended as needed; EIS not specifically required by NFMA (16 U.S.C. § 1604 and 36 CFR 219). The area for an LRMP is forest administrative unit, usually about 1-2 million acres. The LRMPs must be revised every 10 to 15 years. The decision documents for LRMP approval, amendment and revision are subject to appeal under 36 CFR 217 .

Site-Specific Project decision (critical decisions that change the environment) with NEPA and environmental law compliance (some uses such as oil and gas leasing, grazing and recreation developments have multi-step consideration at the project level). In 1992 Congress added requirements for notice and comment and an administrative appeal of projects implementing LRMPs in Section 322 (106 Stat. 1419), Interior Appropriation Act, codified at 16 U.S.C. § 1612 (note). Pursuant to that legislation, project decision documents are appealable under 36 CFR 215 .

Planning is continuous at each and between the levels rather than sequential. Despite the multiple levels of decisionmaking, all activities remain subject to site-specific and continuing compliance with Federal environmental law. The lower two levels, forest plan and site-specific, are the predominate levels of Forest Service land management decisionmaking.

C. Forest Plans

An approved forest plan is the product of a comprehensive notice and comment process established by Congress in the National Forest Management Act (NFMA). The approval of a Land and Resource Management Plan establishes direction so that all future decisions in the planning area will include an "interdisciplinary approach to achieve integrated consideration of physical, biological, economic and other sciences." 16 U.S.C. §§ 1604(b) , 1604(f) , 1604(g) , and 1604(i) . The LRMP provides direction to assure coordination of multiple uses (outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness) and sustained yield of products and services.

The Chief of the Forest Service has held in administrative appeals that LRMP approval results in:

1. Establishment of forest multiple-use goals and objectives, 36 CFR 219.11(b) ;

2. Establishment of forest-wide management requirements (standards and guidelines) to fulfill the requirements of 16 U.S.C. § 1604 applying to future activities (resource integration requirements 36 CFR 219.13 to 219.27 );

3. Establishment of management areas and management area direction (management area prescriptions) applying to future activities in that management area (resource integration and minimum specific management requirements) 36 CFR 219.11(c) ;

4. Designation of suitable timber land (16 U.S.C. § 1604(k) and 36 CFR 219.14) and establishment of allowable timber sale quantity (16 U.S.C. § 1611 and 36 CFR 219.16);

5. Nonwilderness allocations or wilderness recommendations where 36 CFR 219.17 applies;

6. Establishment of monitoring and evaluation requirements 36 CFR 219.11(d) . See, Citizens for Environmental Quality v. Lyng, 731 F.Supp. 970, 977-78 (D. Colo. 1989) (repeats Chief's statement as to what plan approval constitutes); Proposed NFMA Planning Regulations, 36 CFR 219.7 , 219.30 , 64 Fed. Reg.54074, 54100, 54108 (October 5, 1999).

Forest plans set out management area prescriptions with standards and guidelines for future decisionmaking, and are adjustable through monitoring and evaluation, amendment and revision. As projects and activities are proposed and reviewed, the LRMP guides project level decisionmaking. The LRMP management area prescriptions and forest-wide direction are the "zoning ordinance" under which future decisions are made. Forest plan approval establishes multiple-use goals and objectives for the planning unit. For a...