PRE-DECISIONAL OBJECTIONS AND POST-DECISIONAL APPEALS: MAKING SENSE OF THE FOREST SERVICE'S VARIED REVIEW PROCESSES
| Jurisdiction | United States |
(Sep 2016)
PRE-DECISIONAL OBJECTIONS AND POST-DECISIONAL APPEALS: MAKING SENSE OF THE FOREST SERVICE'S VARIED REVIEW PROCESSES
Senior Counsel
Office of the General Counsel, Natural Resources and Environment Division,
U.S. Department of Agriculture
Washington, DC
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VINCENT L. DEWITTE is Senior Counsel with the U.S. Department of Agriculture, Office of the General Counsel, Natural Resources and Environment Division, in Washington, DC. Since 1985, Mr. DeWitte has provided legal services and advice to the Secretary of Agriculture and Forest Service regarding land and resource management planning; roadless regulations; oil and gas leasing; and timber, wildlife, and other Forest Service program areas. He has a B.S. in Forest Management from Northern Arizona University and received his J.D. from the University of Arizona.
Administrative Review of Forest Service, USDA Decisions--Pre-Decisional Objections and Post-Decisional Appeals
I. INTRODUCTION
Administrative review of Forest Service decisionmaking has taken many forms throughout the agency's 111 year history. The agency's refinements of this important public-agency interaction have touched virtually every aspect of the process: who conducts the review (immediate supervisors, peers, and forestry boards); when the review occurs (pre or post decision); and even whether reviews should be conducted under a single all-in-one system or under separate, specialized or compartmentalized review systems. Currently, the agency offers three primary administrative review systems: (1) pre-decisional objections for eligible projects and activities (36 C.F.R. Part 218); pre-decisional objections for land management plan approvals, amendments and revisions (36 C.F.R. Part 219, Subpart B); and (3) post-decisional appeals concerning specified instruments involving occupancy and use of the National Forest System (36 C.F.R. Part 214).
This paper provides an overview of all three regulatory systems, identifying: legislative and administrative history, operational scope and timing requirements, and practice pointers. The historical background discussions are provided as general reference for readers interested in the evolutionary processes that have shaped present day review systems. The scope and timing discussions set forth the basic procedural requirements involved for each regulation. The practice pointers provide bulleted notes highlighting answers to the most frequently asked questions for each regulation. Of course, practitioners should thoroughly familiarize themselves with the specific requirements of a regulation when filing an appeal or objection.
For readers benefit, the terms "responsible official" and "reviewing officer" are used in their traditional and customary manner unless otherwise noted. The "responsible official" is the agency line officer with delegated authority to authorize and implement the plan, project or written instrument governing occupancy and use of National Forest System lands and interests.2 The "reviewing official" is generally the next higher ranking tine officer that will conduct and decide any objection.3 36 C.F.R. Part 214 uses the term "Appeal Deciding Officer" in lieu of "reviewing officer."4
II. PRE-DECISIONAL OBJECTIONS FOR HAZARDOUS FUELS REDUCTION PROJECTS AND PROJECTS AND ACTIVITIES IMPLEMENTING LAND MANAGEMENT PLANS (36 C.F.R. Part 218)
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A. Legislative and Regulatory History
For decades, no statute required the Forest Service to provide a generalized grievance or appeal procedure. However, on its own initiative the agency voluntarily offered processes allowing permittees and the interested persons to administratively challenge Forest Service line officer decisions. By 1989, the agency had divided appeals into two general categories: decisions concerning forest plans and project-level activities could be appealed via 36 C.F.R. Part 217 and decisions concerning specific written instruments (e.g., special use permits) could be initiated by persons or entities holding or applying for such instruments under 36 C.F.R. Part 251, Subpart C.
In 1992 the Forest Service proposed major reforms of the 217 regulations.5 For project decisions, the Forest Service proposed to emphasize public participation prior to final decisionmaking by replacing the administrative appeal process with a mandatory, pre-decisional public notice and comment process. The Forest Service based its proposal on the belief "that the public interest is best served by mutual efforts to resolve differences during the decision making process [rather] than by trying to resolve those differences after a decision has already been made."6 Under the 1992 proposal, forest plan decisions were to remain subject to administrative appeal.
Before final regulations were promulgated, Congress enacted §322 of Interior and Related Agencies Appropriation Act of Fiscal Year 19937 (commonly referred to as the "Appeals Reform Act" (ARA)) instructing the Secretary of Agriculture to establish a notice, comment and post-decisional appeal process concerning projects and activities implementing land and resource management plans. The ARA's requirements did not pertain to the separate appeal systems for forest plans or special uses. Regulations implementing the ARA (36 C.F.R. Part 215) were published in 1993,8 and later revised in 2003.9 That same year Congress enacted the Healthy Forest Restoration Act of 2003 (HFRA) establishing a special pre-decisional objection process
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for authorized hazardous fuel reduction activities as defined in by that statute.10 Interim regulations implementing HFRA's pre-decisional objection process were issued in 200411 with final regulations promulgated in 2008.12
On December 23, 2011, President Obama signed into law the Consolidated Appropriations Act of 201213 which required the Forest Service to issue regulations converting the ARA's post-decisional appeal system into a pre-decisional objection process for Decision Notices and Records of Decision. The new process was to be modeled after the HFRA's pre-decisional objection process.14
In 2012, a federal district court directed the Forest Service to offer administrative appeals of certain categorically excluded (CE) decisions under the Part 215 appeal system.15 While that case was on appeal, President Obama signed into law the Consolidated Appropriations Act of 2014 in which Congress expressly directed that the ARA and 2011 Appropriation legislation shall not apply to any project or activity that is categorically excluded.16 A month later, President Obama signed into law the Agriculture Act of 2014 (Farm Bill) which repealed the Appeals Reform Act in its entirety and repeated the 2014 Appropriation legislation's prohibition that project decisions made in reliance upon CEs would not be subject to the pre-decisional objection process established by the 2011 Appropriation legislation.17
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The 2011 and 2014 statutes, along with Sec. 105 of the HFRA, form the statutory basis for the Forest Service's pre-decisional objection process set forth in 36 C.F.R. Part 218 covering authorized hazardous fuels reduction projects and projects and activities implementing land management plans.
B. Subject Matter and Operational Procedures
36 C.F.R. Part 218 governs pre-decisional objections for "project-level" activities, making special provision for hazardous fuel reduction activities undertaken pursuant to the HFRA. The regulation is divided into three subparts: Subpart A (36 C.F.R. §§ 218.1-218.16 ) sets forth the requirements applicable to all objections filed under 218; while Subparts B and C sets forth requirements that are specific to objections concerning either a non-HFRA (36 C.F.R. §§ 218.20-218.26 ) or HFRA (36 C.F.R. §§ 218.30-218.32 ) project, respectively.
As an initial threshold, 36 C.F.R. § 218.1 identifies that the project-level objection process is only available "for proposed actions of the Forest Service concerning projects and activities implementing land and resource management plans documented with a Record of Decision [ROD] or Decision Notice [DN], including proposed authorized hazardous fuel reduction projects as defined in the Healthy Forests Restoration Act of 2003 (HFRA)." This provision implements Congress' direction18 that objections are not to be provided for decisions that are categorically excluded under the agency's NEPA regulations19 as well as excluding objections where the Forest Service is otherwise involved in the underlying project, but is not required to issue a ROD or DN.
Operation of 218's regulatory process effectively begins with its notice and comment provisions. For a non-HFRA project,20 the responsible official must publish a legal notice that provides a 30 day public comment period for a project involving an Environmental Assessment (EA)21 and a 45 day comment period for a project supported by an Environmental Impact Statement(EIS).22 The responsible official is charged to determine the most effective timing for publication of the legal notice.23 The legal notice must contain basic information concerning the project name, location, duration of the comment period, participation requirements and contact information.24 After the agency has considered the public's input and completed its analytical processes, the regulations provide for notifying the public of the opportunity to file an objection
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regarding a proposed project. The regulations direct publication of a legal notice identifying the pre-decisional objection opportunity and the availability of the underlying NEPA document (EIS or EA) along with a preliminary or draft decision.25 The regulations allow a non-extendable objection period of 45 days for a non-HFRA project and 30 days for a HFRA project.26
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