Forest Service to implement a pre-decisional objection process in lieu of the current administrative appeal process

On Wednesday, 27 March 2013, the U.S. Forest Service finalized new regulations to change the administrative appeal process for most activities on National Forest System lands to a pre-decisional “objection” process very similar to the one currentlyused for activities taken pursuant to the Healthy Forest Restoration Act (HFRA) of 2003. See 78 Fed. Reg. 18481. In 2012, Congress directed the Forest Service to revise the administrative appeals process by amending the Forest Service Decisionmaking and Appeals Reform Act of 1992 (ARA).

  1. What is the scope of the new regulations?

These new regulations will govern the administrative review of most major site specific Forest Service decisions: any decisions about projects and activities implementing land and resource management plans requiring an Environmental Assessment (EA) or Environmental Impact Statement (EIS). See 36 C.F.R. § 218.1.

The Forest Service will apply the new rule to: (1) projects that will begin after March 27, 2013; (2) projects that have undergone scoping but for which no public comment period has been provided on the EA or EIS; (3) certain projects for which the Forest Service has already provided a public comment period on the EA or EIS, but for which the Forest Service will not issue a decision for another six months and for which the Forest Service notifies previous commenters about the change in procedures. See 36 C.F.R. § 218.16(b).

The new pre-decisional review process will not apply to categorically excluded activities, though the Forest Service indicates that such activities may be subject to this process in the future. See 78 Fed. Reg. at 18483. The Forest Service excluded these activities because, one, Congress only directed the Forest Service to change the appeal process for activities requiring an EA or EIS, and, two, the Eastern District of California held in 2012 that ARA guaranteed administrative appeals for activities using categorical exclusions. See Sequoia Forestkeeper v. Tidwell, 847 F.Supp.2d 1244 (E.D. Cal. 2012). While the Forest Service is appealing this decision, for now, activities using categorical exclusions may still be administratively appealed. See 78 Fed. Reg. at 18483.

  1. What will the new process look like?

Under the new rules, those opposed to the issuance of the permit or with concerns about the National Environmental Policy Act analysis must “object” immediately following publication of the final EA or EIS. As part of the objection process, the Forest Service will resolve any and all concerns raised before issuance of the agency’s decision. As a consequence, individuals contesting the agency’s decision will no longer have an opportunity to “appeal” the agency’s decision. In general, the new rules could significantly shorten the overall time frame for a project decision because there will be no administrative appeal opportunity and the decision will take effect immediately upon issuance. However, in some cases, the Forest Service could decide to revise earlier documents and delay the issuance of the project decision in response to objections. Other key aspects of the new rule:

  • Who may object. Individuals and organizations, including a project applicant, must submit specific written (or oral, if there is a transcript) comments during one of the opportunities for public comment provided during preparation of an EA or EIS in order to be eligible to file an objection. See 36 C.F.R. §§ 218.2, 218.5(a). Federally recognized tribes may also object if they submitted written comments during Federal-Tribe consultation. 36 C.F.R. § 218.5(b).
  • Timing. Any written objections must be filed within 45 days of the publication of the legal notice of the EA or final EIS. See 36 C.F.R. § 218.26(a).
  • Contents of objections. The requirements for objections are fairly specific and stringent. See 36 C.F.R. § 218.8. Issues raised in 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. 36 C.F.R. § 218.8(c).
  • Objection meeting. Either the reviewing officer or the objector may request a meeting on the objections and potential resolutions to the objections. See 36 C.F.R. § 218.11(a).
  • Objection decision. The reviewing officer must respond in writing to any written objections within 45-75 days following the end of the objection period. See 36 C.F.R. §§ 218.11(b), 218.26(b). The Forest Service must complete this response before it can approve the project. See 36 C.F.R. § 218.11.
  • Exhaustion. The Forest Service states that any filing in federal court is “premature and inappropriate” unless the plaintiff has participated in the pre-decisional review administrative process. See 36 C.F.R. § 218.14(b).
  • Comparison to HFRA. The new regulations are similar, but not identical to the existing regulations that apply to HFRA projects. The new regulations will change the HFRA process slightly, but there will remain a few differences between this new process and the HFRA process as well, including some related to time limits and an emergency exemption. See 36 C.F.R. 218 Subparts B and C.
  1. How does the old process compare to the new?

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  1. How will the pre-decisional process substantively affect challenges to specific projects?

These changes appear to be designed to encourage dialogue prior to final agency decisions, to speed agency processes by having fewer objections than administrative appeals, and to discourage later litigation. While the new rules may encourage more dialogue, for high-profile projects with well-organized opponents and/or proponents who tailor their comments with an eye toward later litigation, the new rules are unlikely to discourage objections or litigation. The one exception to this may be for projects that are analyzed with EAs that are not circulated for public comment: to file an objection for those projects, comments will have to be filed during scoping, when less is generally known about a project and less attention is given to it.