From Bob Berwyn here:
By Bob Berwyn
SUMMIT COUNTY — A federal judge in California this week ruled that the U.S. Forest Service can’t simply drop a post-decision appeals process for logging, forest health and other projects approved under a categorical exclusions, which is a streamlined approval process for smaller projects. In those decisions, the appeals process is replaced with a pre-decisional objection period, which enables people to raise concerns before the final decision is made. Read the decision here (PDF on Scribd.com) or at the end of the post.
That means citizens or stakeholder groups across the country once again have the right to challenge certain Forest Service projects after the final decision has been made by a district- or forest-level official.
The agency has often used the categorical exclusion process in recent years to gain speedy approval for projects relating to the pine beetle epidemic. While many of the projects aren’t controversial, some have been.
Absent a formal administrative appeals process — which involves review by forest officials higher up the chain of command — citizens and environmental groups must go directly to court to challenge a project.
In some regions, the agency has done a good job of involving stakeholders in the process early to help shape decisions that have community support. But that’s not the case all over the country, and having the opportunity to appeal enables people to challenge bad decisions without the expense of going to court.
On the other hand, environmental groups have sometimes abused the appeals process to obstruct and delay projects. Those tactics led frustrated Forest Service officials to look for shortcuts. But fundamentally, appeals have always helped ensure that citizens have some recourse to challenge the agency when it comes to what are often irrevocable commitments of public resources.
In his decision, U.S. District Court Judge Lawrence O’Neill also ruled that the agency must give adequate notice for its decisions on categorical exclusion projects, as well as provide the public with an opportunity to comment.
The ruling, issued by a U.S. District Court in California, is a skirmish in the long-running regulatory and legal battle over the Forest Service’s desire to cut red tape, sometimes at the expense of public involvement and adequate environmental review.
The Forest Service fired the first salvo when it tried to eliminate administrative appeals altogether in an attempt to speed up approvals for projects. In response, Congress in 1992 passed the Forest Service Decision-making and Appeals Reform Act.
“Congress said, we want to ensure that you’ve heard all the voices … and that you use the appeal process to repair your mistakes,” said Forest Service Employees for Environmental Ethics director Andy Stahl, explaining that he lobbied for the appeals reform act.
That law states very clearly that the Forest Service must include an appeals process for any decision or project that implements a forest plan.
Stahl said appeals help make the Forest Service decision-making process accessible to the general public, giving citizens a chance to influence decisions without having to hire a lawyer if they think a project has some fundamental flaws. And based on the agency’s track record of losing appeals and court cases, that happens as often as not.
In the bigger picture, Congress just recently passed a law that eliminates appeals for all decisions approved under Environmental Assessments and Environmental Impact Statements, instead replacing those appeals with pre-decisional objection periods.
Here’s the link to the decision (thanks, Bob!)
Sharon’s note : I’m not sure what Andy means by “losing appeals and court cases” and “that happens often as not.” How does that fit in with the concept of “appeals are just a higher level review and often just restamp the decision”? (Not that Andy said the latter, but I think someone has on this blog.) I don’t think that quantitatively appeals are 50/50 affirm/ remand nor are court cases 50/50 (although I don’t have the numbers at my fingertips). Andy- did I miss something or was I excessively quantitative in interpreting “as often as not” as 50/50?
For our mutual education and information on this subject, I propose we each pick a district and look at which actual CE’s are in progress to get a picture of how many of them actually deal with timber harvest compared to other kinds of actions, which are “implementing the forest plan”; so I picked Trabuco Ranger District (the name just came to me) and here’s a link to the current SOPA (schedule of proposed actions).
I found a decision expected in April (maybe not anymore?) :
“The Descanso Ranger District proposes to authorize reissuance of a special use permit for maintaining a club for use by the San Diego Chapter of the Sierra Club, located in the Laguna Mountain Recreation Area. ”
Or this one right below it, fortunately already completed:
“Eradicate with herbicide invasive Spanish Broom along the roadway to improve visibility, clear the roadway for vehicle passage and reduce fire risk.”
Adding notice, comment and appeal to CE’s seems like a great thing for the public, but it seems to me that given the kinds of CEs that are out there, reasonable people could disagree about the value added compared to the taxpayer expense.
I invite you to “pick a district” check out the SOPA, and see what you find.