By Janice M. Schneider, Laura A. Godfrey and Taiga Takahashi

The 2012 Consolidated Appropriations Act (Appropriations Act), signed by President Obama on December 23, 2011, replaced the appeal process for most Forest Service actions with a pre-decisional objection process.  The Appropriations Act also gave the Chief of the Forest Service authorization to exempt Forest Service actions from this pre-decisional objection process in an “emergency situation”.[1] The new “pre-decisional objection process” applies to “proposed actions of the Forest Service concerning projects and activities implementing land and resource management plans developed under the Forest and Rangeland Renewable Resources Planning Act of 1974[2] and documented with a Record of Decision or Decision Notice, in lieu of . . . providing for an administrative appeal process.”

Previously, an administrative appeal process was available to challenge the Forest Service’s project-related decisions. Such appeals were to be filed within 45 days of the publication of the Forest Service’s notice of its decision on a project. Decisions on appeals were to be made within a 45-day appeal period. If no appeal decision was issued within this 45-day period, the agency decision became the final administrative action.[3]

The new process eliminates this appeal process and replaces it with a pre-decisional objection process as outlined in Section 105(a) of the Healthy Forests Restoration Act of 2003. The objection process will be the “sole means by which a person can seek administrative review regarding [the Forest Service’s decision regarding the applicable project] on Forest Service land.”[4] The objection process will begin after the completion of the environmental assessment (EA) or environmental impact statement (EIS) and will end, at the latest, when the Forest Service issues its Record of Decision or Decision Notice. In addition, to participate in the administrative review process and object to a project, an individual must submit specific written comments regarding the proposed action to the Forest Service during the scoping or public comment period for the draft environmental analysis for the project.

Federal regulations implementing Section 105(a)’s objection process,[5] which originally applied only to hazardous fuel reduction projects, may provide a preview of this new process. If these other regulations provide any indication, the time to file an objection could be reduced to 30 days following the publication of notice of the completion of the EA or EIS.[6] In addition, if no objection is filed, final decision may occur as early as 5 days after the end of the 30-day objection period.[7]

The new objection process is expected to decrease the time needed for the Forest Service’s review and decision regarding proposed actions as compared to the former appeal process, and it should provide more uniformity to Forest Service decision-making processes. Appeals available to project applicants under 36 C.F.R. pt. 251 and appeals of plan adoptions or amendments themselves under 36 C.F.R. pt. 219 appear to be unaffected.[8] This drive for efficiency in Forest Service process is also reflected in the Obama Administration’s recently proposed “Preferred Alternative for the Land Management Planning Rule”, which the Administration claims “will make land management on 175 national forests and grasslands cheaper, more efficient[,] and less vulnerable to lawsuits[.]”

The Forest Service is currently in the process of drafting new regulations to implement this new pre-decisional objection process. An interim final rule is currently expected to be published by this summer and a final rule by this fall.

 

[1] The statutory language is set out at Section 428 of the appropriations bill (Public Law 112-74, 125 Stat. 1046)
[2] 16 U.S.C. §§ 1600-14.
[3] See generally 36 C.F.R. § 215.15.
[4] See supra note 1.
[5] 36 C.F.R. pt. 218.
[6] See 36 C.F.R. § 218.10(a).
[7] See 36 C.F.R. § 218.12.
[8] Compare 2012 Consolidated Appropriations Act § 428, supra note 1 (applying to “proposed actions of the Forest Service concerning projects and activities implementing land and resource management plans developed under the Forest and Rangeland Renewable Resources Planning Act of 1974 (16 U.S.C. 1600 et seq.), and documented with a Record of Decision or Decision Notice, in lieu of subsections (c), (d), and (e) of section 322 of Public Law 102–381 (16 U.S.C. 1612 note), providing for an administrative appeal process”), with 36 C.F.R § 251.80 (applying to applicants “who hold or . . . apply for written authorizations to occupy and use National Forest System lands”) and 36 C.F.R. § 219.32 (applying to a “proposed amendment or revision” of a land and resource management plan, which is already subject to a pre-decisional objection process).