The Appeals Reform Act

The Forest Service has had an appeals process almost since its inception. Appeals of agency decisions to higher-ups within the agency give interested parties and the agency an opportunity to resolve disputes without resorting to formal court action. In 1992, however, the Department of Agriculture stopped taking administrative appeals of Forest Service decisions.

This decision drew sharp congressional and public criticism, including more than 30,000 public comments. Congress quickly moved to reinstate Forest Service appeals by enacting the Appeals Reform Act (ARA), signed into law on October 5, 1992, by President H.W. Bush. Congress has historically advocated on behalf of forest appeals in order to guarantee the public, as well as the agency itself, an opportunity for oversight of agency decisions and a chance to resolve disputes and correct mistakes without hiring a lawyer and going to federal court. The ARA requires the U.S. Forest Service and the Secretary of Agriculture to allow the public to help guide how logging and other projects take place on our National Forests. Congress required the Forest Service to inform the public about pending projects, let the public comment on proposed projects so that they could be improved or rejected entirely, and required the Forest Service to allow administrative appeals contesting projects before they were implemented.

Bush Administration Weakens Appeals Rules

In June 2003, as part of the Bush Administration’s endless attack on the environmental laws of this country struck again by issuing new rules regarding the Notice, Comment, and Appeal Procedures for National Forest System Projects. This action clearly limits public involvement and broadens Forest Service discretion to increase logging absent the scrutiny of additional internal and public review.

Key changes to the Appeal regulations:

  • The definition of emergency situation was redefined as a situation on National Forest lands for which immediate implementation of all or part of a decision is necessary for relief from hazards threatening human health and safety or natural resources on those Forest Service or adjacent lands; or that would result in substantial loss of economic value to the Federal government if implementation of the decision were delayed. The previously accepted emergency authority under the National Environmental Policy Act states the Forest Service would have to consult with the Council on Environmental Quality to develop arrangements for alternatives to control immediate impacts of emergency actions. The focus is on the impacts to the environment. The Forest Service can now propose emergency actions such as salvage logging to recover economic value of timber and exempt the project from appeal. The focus has been moved to economics and timber volume in direct conflict with the intent of NEPA. The Chief of the Forest Service can also delegate the authority to make these emergency decisions to Regional Foresters.
  • Categorical Exclusions (CE) are not subject to notice and comment and are not subject to appeal. Under the Forest Service NEPA Handbook there were requirements to conduct scoping on all projects. The Quarterly Schedule of Proposed Actions listed all projects and contact information for Categorical Exclusions, Environmental Assessments and Environmental Impact Statements. The public will no longer be informed about, or be asked to participate in, potentially environmentally damaging projects. The proposed regulations would expand the exemption provided for in the ARA to all categorically excluded projects, including relatively small timber sales. This means that any timber sale that the Forest Service classifies as a CE will no longer be subject to public notice, comment, and administrative appeal.
  • Only those who submitted substantive comments during the 30-day comment period for an Environmental Assessment or the 45-day comment period for a draft Environmental Impact Statement may file an appeal. These proposed changes not only disregard comments deemed to be non-substantive, but also allow Forest Service officials to deny standing to file administrative appeals for persons who submitted such comments. This standing limitation violates the ARA, which allows appeals to be filed by anyone who submits comments or otherwise notifies the Forest Service of his or her interest in the proposed action.
  • The rule also exempts projects decisions made by administration officials. These changes would allow the Forest Service to evade the appeals process simply by having the Department of Agriculture Secretary or Under Secretary sign the decision documents.