By Janice M. Schneider and Taiga Takahashi

On June 5, 2013, the U.S. Forest Service released its final rule amending the post-decisional administrative review process governing the occupancy or use of National Forest System lands and resources. The rule revises procedures for holders of and certain applicants for authorization to occupy and use National Forest System lands, such as special use permits and rights-of-way.[1] This rule was intended to simplify the appeal process, shorten the appeal period, and reduce the costs of appealing while maintaining a fair and deliberate process with which to review certain Forest Service decisions related to the occupancy or use of Forest System lands. The rule took effect on June 5.

The former administrative appeal process for holders of Forest Service permits and authorizations, previously located at 36 C.F.R. part 251, subpart C, had been substantially unchanged since its adoption in 1989. The new rule relocates these provisions to a new part 214 and makes other technical, non-substantive changes to parts 251 and 222 for organizational and clarity purposes.

The new rule largely achieves its goal in streamlining the regulations and procedures regarding the administrative appeal process. The new § 214.4 contains a specific list of categories of appealable Forest Service decisions, which include, but are not limited to certain decisions regarding mineral use and certain decisions regarding special use authorizations. For instance, with respect to special use authorizations, appealable decisions include modification, suspension, or revocation of these entitlements; suspension or revocation of certain easements; implementation of certain new land use fees; assignment of a performance rating that affects reissuance or extension of a special use authorization; and denial of a renewal of certain special use authorizations. All other decisions not listed in § 214.4 are not administratively appealable, as specified by § 214.5.

In response to public comments, the final rule maintains the timeframe for filing an appeal at 45 days, consistent with current practice.  Intervention may be permitted, but is limited to holders or solicited applicants claiming an interest relating to the subject matter of the appeal.  The new rule also incorporates several changes to the appeal process to shorten the overall appeal period, requires responsive pleadings from the responsible agency officer, and then requires the Forest Service appeal deciding officer to render decisions within relatively short timeframes. Another important provision that streamlines the process is the new § 214.8(b), which requires appellants to include in its appeal a request for oral presentation or stay.[2] Previously, these requests could be made at any time prior to closure of the administrative record.   

Finally, the new rule adds some uniformity to the review process—in particular, by eliminating the different procedures for review depending on the position of the Responsible Officer who makes the appealable decision. The former part 251 had provided different procedures depending on whether the decision was made by a District Ranger, Grassland Supervisor, or Regional Forester.

The proposed rule is available in the Federal Register at 76 Fed. Reg. 62694, and the final rule is available at 78 Fed. Reg. 33705.

The final rule for the Pre-Decisional Administrative Objection process, about which we previously wrote, became effective on March 27, 2013. See 78 Fed. Reg. 18481.  When releasing the final rule for the post-decisional administrative review process, the Federal Register Notice erroneously stated that the Forest Service was still in the process of drafting regulations regarding the pre-decisional process. See 78 Fed. Reg. 33,705, 33,710.

 

 

[1]    78 Fed. Reg. 33,707 (“In contrast [to public participation in Forest Service decisions implementing a land management plan], once a decision has been made to authorize a particular land use, subsequent Forest Service decisions involving the associated written authorization uniquely affect the holder, operator, or solicited applicants. Consequently, it is appropriate for the administrative appeal process for these decisions to be available only to the holder, operator, or solicited applicants and for the appeal procedures to provide for that level of participation.”).

[2]  With very limited exception, the filing of an administrative appeal does not automatically stay the decision.  36 C.F.R. § 214.13.