PRE-DECISIONAL OBJECTIONS AND POST-DECISIONAL APPEALS: MAKING SENSE OF THE FOREST SERVICE'S VARIED REVIEW PROCESSES

• Jurisdiction: United States

Challenging and Defending Federal Natural Resource Agency Decisions
(Sep 2016)
CHAPTER 7B
PRE-DECISIONAL OBJECTIONS AND POST-DECISIONAL APPEALS: MAKING SENSE OF THE FOREST SERVICE'S VARIED REVIEW PROCESSES
Steven K. Imig
Director
Lewis, Bess, Williams & Weese P.C.
Denver, CO

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STEVEN K. IMIG is an attorney and director with Lewis, Bess, Williams & Weese, P.C. in Denver, Colorado. Steve specializes in natural resources, public lands law, litigation, and environmental law. His practice involves oil and gas and resource development, federal land use planning, ski area development, and litigation over various types of oil and gas agreements. Steve also helps clients navigate federal, state, and local environmental permitting and review processes. Steve has a B.A. in economics, magna cum laude, from Bates College, and a J.D., cum laude, from the Georgetown University Law Center. Steve has been a guest lecturer in environmental, natural resource, and administrative law at the University of Denver Sturm College of Law, and frequently speaks and writes on natural resources and environmental issues. Prior to law school, Steve was an economic consultant specializing in energy markets.

Administrative Review of Forest Service, USDA Decisions - The Participant's Perspective

I. INTRODUCTION

My co-presenter, Vincent DeWitte, has prepared a comprehensive paper addressing the history, scope, and relevant provisions of the primary Forest Service administrative review processes: (1) pre-decisional objections for eligible projects and activities (36 C.F.R. Part 218 or "Part 218"); (2) pre-decisional objections for land management plan approvals, amendments and revisions (36 C.F.R. Part 219, Subpart B or "Part 219"); and (3) post-decisional appeals limited to certain defined issues concerning specified instruments (such as Special Use Permits) involving occupancy and use of the National Forest System (36 C.F.R. Part 214 or "Part 214").¹

This paper will not repeat the information covered in Mr. DeWitte's excellent overview.² Instead, it focuses on the perspective of the private participant. Those participants can include both: (1) private parties seeking to alter or overturn a Forest Service proposed decision; and (2) project proponents wishing to defend and support the Forest Service's authorization of their project.

Forest Service administrative reviews are unique. A newcomer versed in administrative review of agency decisions by quasi-judicial bodies, such as review of U.S. Bureau of Land Management actions by the Interior Board of Land Appeals, will find a significantly different review process with the Forest Service. This paper will address critical regulatory requirements that participants should be aware of. It will also provide observations about the nature and "feel" of Forest Service administrative reviews that are equally critical but that may not be readily apparent from the regulations themselves. This paper will focus on Part 218 and Part 219 pre-decisional objections, but will also touch on Part 214 appeals where relevant. Because reviews under Part 218 and Part 219 have many similarities, I will address them together and identify differences where appropriate.

II. PRACTICAL OBSERVATIONS AND KEY REQUIREMENTS

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A. Interested Parties Must Participate in a Meaningful Way Before (and Sometimes Well Before) the Administrative Review Commences

Forest Service Part 218 and Part 219 pre-decisional objections are not open to all.³ Objections are in many ways an extension of the public involvement procedures provided during National Environmental Policy Act ("NEPA") reviews that precede them. Participation in the NEPA process is a prerequisite for filing an objection. Part 218 review is only available to "[i]ndividuals and entities ... who have submitted timely, specific written comments regarding a proposed project or activity that is subject to these regulations during any designated opportunity for public comment...."⁴ Part 219 review is similarly only available to those "who have submitted substantive formal comments related to a plan, plan amendment, or plan revision during the opportunities for public comment as provided [elsewhere in Part 219]."⁵ This fundamental restriction on filing objections has a number of important consequences.

First, and most obvious, is that an interested party cannot wait until the administrative review stage to voice concerns. This is by design. The preamble to the Part 218 regulations explains that limiting the right to object to those who have submitted public comments was "included in the proposed and final rule to encourage early and active involvement by the public in project planning and analysis.... The earlier relevant concerns and information are brought to the attention of the responsible official, the more effective consideration can be ensured."⁶ Pre-decisional objections have been designed to encourage submission of comments at earlier stages as the project is being initially reviewed and formulated. The intent of the Forest Service is to attempt to resolve most concerns during the NEPA process, rather than in response to an objection.

Second, and related to the first, is that interested parties must get involved months or even years prior to a decision being made that may impact their interests. The preparation of an Environmental Impact Statement ("EIS") or Environmental Assessment ("EA") pursuant to NEPA is a lengthy process. A recent study by the General Accounting Office reported that "the 197 final EISs in 2012 had an average preparation time of 1,675 days, or 4.6 years."⁷ The same study noted that "the Forest Service reported that its 501 EAs in fiscal year 2012 took an average of about 18 months to complete."⁸ That means the public comment period may have been provided months or even years prior to the administrative review commencing. An interested party who fails to participate, who learns late in the game of a project, or who did not have an

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interest in a project or plan when the comment period was held but later acquires such an interest may be precluded from seeking administrative review.

Third, the issues that are addressed in comments are critical to the later objection. Comments must cover all issues with specificity that the commenter may want to preserve for later objection. Pro-forma comments akin to "I support/oppose the proposal" are not enough. That is because objections must be "based on previously submitted specific written comments ... unless the issue is based on new information that arose after the opportunities for comment. The burden is on the objector to demonstrate compliance with this requirement...."⁹

This creates important consequences and incentives on both the interested party and the Forest Service. From the participant's perspective, the requirement to base objections on prior comments incentivizes broad encyclopedic comments that address every conceivable issue the party may want to raise in a later objection, rather than tailored comments addressed to the most critical issues. This is true even when the draft NEPA document appears consistent with the interested party's wishes. For example, the draft NEPA document may identify a preferred alternative that does exactly what the party wants and that analyzes the precise issues of concern in an acceptable way. But the draft document is just a draft, and the NEPA review and preferred alternative can change during the NEPA process. Interested parties may need to submit comments to preserve their right to later object even when the draft NEPA review appears satisfactory.

The preparation of encyclopedic comments also impacts the Forest Service. The agency must process and respond to those comments,¹⁰ placing an administrative burden on the agency. This may contribute to the length of the NEPA process and the EIS or EA. The Forest Service considered these concerns when developing its Part 219 regulations, but decided that, unbalance, the requirement to tie objections to specific written comments is appropriate and would encourage interested parties to raise their concerns as early as possible:

Some respondents felt the objection process forces the public to submit comments on everything in order to preserve their right to object based on submitted comments ... The Department decided to retain the requirements in this section to make sure that issues are identified as early as possible, by the parties interested in those issues. ¹¹

Fourth, the public comment prerequisite ultimately impacts who is eligible to seek judicial review. That is because a plaintiff is mandated by statute to exhaust its administrative remedies prior to challenging a Forest Service decision in federal court.¹² One court has

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explained that this requires a plaintiff to first present its grievance to the agency "in sufficient detail to allow the agency to rectify the alleged violation."¹³ To be eligible to seek judicial review of a Forest Service decision, the plaintiff must: (1) have been eligible to participate in the administrative appeals...