One of the most serious attacks by the Bush Administration on forest management regulations is aimed at citizens' rights to comment on and administratively appeal timber sales and other Forest Service land management activities. The timber industry could scarcely have wished for more than this scheme, which will drastically diminish the public's role in the management of its own public forests.
In brief, the new appeal regulations will make it much more difficult for citizens to challenge Forest Service decisions, short of going to court. Following are some key changes in the appeals process:
Overview
Following is a quick analysis of the final regulations revising the Forest Service's administrative appeals process, which were published in the June 5, 2003, Federal Register (68 Fed. Reg. 33581). The new regulations overhaul prior regulations that were adopted in 1993 to implement the Appeals Reform Act. Administration officials vaguely discussed the revised appeal regulations on May 30, 2003, in the context of the "Healthy Forests Initiative," but they did not provide details. It is important to note that the appeal regulations apply to all types of land management activities -- such as mining, grazing, and recreational uses -- not just to activities covered by the HFI.
Most logging projects will be entirely exempt from appeal.
The 1993 regulations allowed citizens to appeal all types of timber sales, including those that were categorically excluded from National Environmental Policy Act documentation requirements. The new regulations, on the other hand, exempt all categorically excluded projects from appeal. (36 CFR 215.12(f)). This exemption will cover many logging projects up to 1,000 acres in size, since the Forest Service this week is also issuing regulations creating a new categorical exclusion for "hazardous fuels reduction projects" of up to 1,000 acres. The exemption will also cover salvage logging projects up to 250 acres in size and other timber sales up to 50 acres, if the Forest Service adopts the regulations it proposed in January for categorical exclusion of small timber sales. Together, these three new categorical exclusions will likely encompass the large majority of Forest Service logging projects.
Salvage logging and other "economic" activities will be allowed to proceed even while appeals are pending.
Under the 1993 regulations, projects were automatically stayed until appeals were resolved, unless the Chief of the Forest Service granted an "emergency" exemption to prevent resource damage or safety problems. The new regulations expand the definition of "emergency" to include situations, such as salvage logging, "that would result in substantial loss of economic value to the Federal Government." (36 CFR 215.2). The regulations also make it easier to obtain approval for emergency exemptions by allowing regional foresters, as well as the Chief, to grant the exemptions. (215.10(a)). The practical effect is that citizens often will have to go to court for preliminary injunctions in order to prevent their administrative appeals of salvage sales from being rendered meaningless.
Political appointees can exempt any project from appeal.
The new regulations allow Secretary of Agriculture Ann Veneman or Undersecretary Mark Rey to exempt any Forest Service project from appeal. (36 CFR 215.20(b)). This appears to contradict a federal court decision that blocked an attempted end run around the appeals process. In 2001 Rey tried to avoid administrative appeals and speed up logging of a massive salvage logging project in Montana's Bitterroot National Forest by personally signing the decision papers. The judge chastized Rey, saying, "The notion that a signature by the Undersecretary transforms the action from Forest Service business to the business of some other agency is mystical legal prestidigitation."
Standing to appeal is limited to citizens who previously submitted "substantive" comments.
Consistent with the Appeals Reform Act, the 1993 regulations liberally allowed citizens to appeal a project as long as they had previously expressed an interest in the project. The new regulations impose much tighter standing requirements by disqualifying appeals filed by people or organizations that did not file "substantive" comments. (36 CFR 215.16(a)(6)). The regulations define substantive comments as written or oral comments that specifically relate to the project and include "supporting reasons." (215.2). Thus, general comments of opposition or concern about a project will no longer necessarily suffice to establish standing to appeal. The likely upshot is that some appeals filed by interested citizens will be arbitrarily rejected on technical standing grounds by hostile Forest Service officials.
Background: Our Statutory Right to Participate
In 1993, Congress adopted the Appeals Reform Act. It gave the American people the statutory right to file administrative appeals of Forest Service land management decisions. Congress passed the law in reaction to an unpopular effort by the Forest Service to eliminate its administrative appeals process.
The Appeals Reform Act gives people 45 days to file appeals of Forest Service land and resource management activities, such as timber sales and mining operations. The Regional Forester then has 45 days to review the appeal and issue a decision, unless the appeal is settled in the interim by negotiations. By law, the Forest Service cannot implement the action while the appeal is pending.
The Appeals Reform Act also requires the Forest Service to allow citizens 30 days to comment on proposed management activities. The agency must respond to public comments as part of its final decision on a project. Only people who comment on proposals are eligible to file administrative appeals of final project decisions.
The Bush Administration has blamed environmentalists for using the appeals process to delay thinning projects to reduce fire risks. We haven't and the record proves it; the claim is a subterfuge to get the public out of public forest management by playing on people's legitimate fears of fire. A 2001 study by the Government Accounting Office found that only 1 percent of hazardous fuels reduction projects were appealed. Nevertheless, the Administration and some members of Congress have advocated exempting thinning projects from appeal, or even repealing the Appeals Reform Act altogether.
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