Objections and Appeals

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 required 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.

2003: 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 limited public involvement and broadened Forest Service discretion to increase logging absent the scrutiny of additional internal and public review.

The Consolidated Appropriations Act 2012: Revision of 36 CFR Part 218

The process of objecting to Forest Service decisions has changed considerably over the years. Until 2013, the public had the right to appeal projects after the decision (ROD) was issued. The appeal would be reviewed by regional staff. If the appeal was found to have merit, the reviewing officer could affirm the appeal and the decision would be withdrawn. In most cases, the proposal would be modifed to make it lawful, and then go forward.

In 2012-2013, revisions to 36 CFR Part 218 did away with the appeals process and replaced it with the pre-decisional objection process. The new rule expanded the use of the objection process promulgated in 2004 for hazardous fuel reduction projects under the Healthy Forests Restoration Act (HFRA) of 2003 to include other projects and activities implementing land and resource management plans. Under this process, after publication of a final EIS or EA, the public has 45 days to file a formal objection for projects not authorized under the Healthy Forests Restoration Act. For projects authorized under HFRA, the public has 30 days to file an objection.

The specifics of the objection process are available here. Also see this Forest Service memo, March 5, 2014, explicitly directing agency offices to cease publication and notification of the public for CE projects.

Today, if negotiations under the pre-decisional objection process are not fruitful, and a decision and proposed action are seen to be contrary to the law, the public now has only one option--and that is to bring a lawsuit against the federal government, something that rarely happens because of the high cost and resources necessary to do this.