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

In early March, we discussed Section 428 of the 2012 Consolidated Appropriations Act, which directed the establishment of a pre-decisional objection process to replace the Forest Service post-decisional administrative appeals process under 36 C.F.R. part 215 for administrative appeals related to “projects and activities implementing land management plans and documented with a Record of Decision (ROD) or Decision Notice (DN)”. The Forest Service recently announced its proposed rule and is taking public comment on it until September 7, 2012.[1]

The proposed rule adds some previously missing detail that is generally consistent with what we had expected. For example, the Forest Service has proposed a 45-day objection period for a project or activity implementing a land management plan[2] and 30-day objection period for an authorized hazardous fuel reduction project.[3] The 45-day objection period is the same length as the time to appeal project decisions under the current post-decisional appeals process.[4] In addition, the proposed rule would replace only the appeals process under 36 C.F.R. pt. 215 and does not appear to affect appeals available to project applicants under 36 C.F.R. pt. 251[5] or appeals of forest plan adoptions or plan amendments themselves under 36 C.F.R. pt. 219.

In addition, the proposed rule makes clear that a project opponent would need to have filed comments on the proposed action during the public review process (such as the environmental review process under the National Environmental Policy Act), as well as a protest before a project opponent can be said to have exhausted administrative remedies and challenge the decision on the project in federal court.[6] Finally, the proposed rule also discusses how the Forest Service would provide public notice of the opportunity to file objections.[7] Taken together, the provisions of the proposed rule will require project opponents to participate in multiple stages of the review process in order to gain access to the federal courts.

The Federal Register notice is available in PDF at http://www.gpo.gov/fdsys/pkg/FR-2012-08-08/pdf/2012-19302.pdf and in HTML at https://federalregister.gov/a/2012-19302.

[1]  The Forest Service is taking public comment on the information collection requirements of the proposed rule until October 9, 2012.

[2]  Project-Level Pre-Decisional Administrative Review Process, 77 Fed. Reg. 47,337, 47,350 (proposed Aug. 8, 2012) (to be codified at 36 C.F.R. § 218.26).

[3]  Id. (proposed to be codified at 36 C.F.R. § 218.32).

[4]  Id. at 47,343.

[5]  Appeals under part 251, subpart C, provide a process “by which those who hold or, in certain instances, those who apply for written authorizations to occupy and use National Forest System lands, may appeal a written decision issued by an authorized Forest Service line officer.” 36 C.F.R. § 251.80.

[6]  77 Fed. Reg. at 47,348 (proposed to be codified at 36 C.F.R. § 218.14) (“[A]ny filing for Federal judicial review of a decisions [sic] covered by these regulations is premature and inappropriate unless the plaintiff has exhausted the administrative review process set out in this part.”). See also 77 Fed. Reg. at 47,346 (proposed to be codified at 36 C.F.R. § 218.5) (who may file objections).

[7]  Id. at 47,345 (proposed to be codified at 36 C.F.R. 218.2) (definition of “objection period”) (“The period following publication of the legal notice in the newspaper of record of an environmental assessment (30 calendar days) or final environmental impact statement (45 calendar days) for a proposed project or activity during which an objection may be filed with the reviewing officer. When the Chief is the responsible official the objection period begins following publication of a notice in the Federal Register.”).