ADMINISTRATIVE REVIEW OF U.S.D.A. FOREST SERVICE DECISIONS
| Jurisdiction | United States |
(Nov 1999)
ADMINISTRATIVE REVIEW OF U.S.D.A. FOREST SERVICE DECISIONS
Ronald Mulach
Natural Resources Division Office of the General Counsel U.S. Department of Agriculture
Washington, D.C.
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Table of Contents
I. Overview A. Forest Service MissionB. Forest Service Staged DecisionmakingC. Forest PlansD. Site Specific Projects
II. Forest Service Administrative Appeal Procedures A. Administrative Appeals Under 36 CFR 215B . Administrative Appeals Under 36 CFR 217C . 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
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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
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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 levels2 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
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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);
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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 discussion of the nature of plan and project decisionmaking see Advanced Notice of Proposed Rulemaking, 56 Fed. Reg. 6508, 6519-21, (February 15, 1991); Proposed Administrative Appeal Regulations, 36 CFR 215 , 58 Fed. Reg. 19369, 19370-71 (April 14, 1993); Proposed NFMA Planning Regulations, 36 CFR 219.7, 64 Fed. Reg. 54074, 54082-54083, 54100 (October 5, 1999).
USDA regulations at 36 CFR 219 provide for systematic stepping down from the overall direction provided in the LRMP when making project or activity level decisions. In addition, the Forest Service Planning Manual (FSM) provides:
Planning for units of the National Forest System involves two levels of decisions. The first is the development of a forest plan that provides direction for all resource management programs, practices, uses, and protection measures....The second level of planning involves the analysis and implementation of management practices designed to achieve the goals and objectives of the forest plan. This level involves site-specific analysis to meet NEPA requirements for decisionmaking. FSM 1920, 53 Fed. Reg. 26807, 26809 (July 15, 1988).
Numerous courts have upheld Forest Service staged decisionmaking. Cronin v. USDA 919 F.2d 439, 447-49 (7th Cir. 1990); Idaho Conservation...
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