CREATE: What Should Congress Do? I.Harmonize BLM and FS Appeals

When I worked for the Forest Service, I worked on many coal and oil and gas projects. If a Forest Service fuels reduction project appeals and litigation seems incredibly complex, think about coal or oil and gas, in which BLM and the Forest Service have different pieces, different appeal processes and different lawyers all for the same project. Of course other federal agencies are involved; OSM for coal, and the relevant regulatory agencies, and for each NEPA document EPA has to review it and give their opinion (of the NEPA). So there’s lots of opportunities for interagency intrigue and drama.

I was always curious about using IBLA (the Interior Board of Land Appeals) and how that works compared to the Forest Service appeals process. It seems like that group (IBLA) would develop expertise and perhaps lead to fewer projects ultimately going to litigation, because judges are involved (hey, it’s just a hypothesis).

Note: for the projects I was involved with, future plaintiffs had these projects in their sights for litigation from day 1, and it was only a case of bullet- proofing the documentation, because certain groups are strongly philosophically opposed. So perhaps in that situation, the different appeals processes don’t matter except for giving folks many, many more (federally funded) bites at the same apple because there are separate processes.

I’m hoping someone on the blog (or ask your colleagues) has some comparative experience between IBLA and FS processes in terms of CREATE (conflict resolution effectiveness, accountability and transparency)?

I found this writeup “Administrative Appeals in the Bureau of Land Management and the Forest Servicein 2012” by the Congressional Research Service.. it’s mind-boggling and seems like, though it would be a large task, cost savings and clarity to everyone could be improved if an attempt were made to somehow consolidate and streamline appeals processes. The many flowcharts themselves are enough to make your neurons implode.

14 thoughts on “CREATE: What Should Congress Do? I.Harmonize BLM and FS Appeals”

  1. FS appeals are better at fostering resolution and forestalling litigation. BLM’s process of timber sale “protests” (triggered by the advertisement for an imminent timber sale “auction”) is far too late in the game to foster conflict resolution. IBLA is a broken system. They started phoning it in years ago. Mainly they just create uncertainty, delay, and ultimately rubber stamp BLM decisions. Lately, I’ve seen them invent crazy excuses in an attempt to reject standing.

    • Hmm. One person’s “rubber stamping” might be another person’s “acknowledgement that the agency did the process correctly.”

      Can you be more specific about a decision that involved “crazy excuses” about standing? How do they cause “more delay and uncertainty” than FS processes?

      • Re: “More delay” . . . the IBLA protest/appeal process was designed to protect ranchers and other public land permittees from the BLM. Thus, stays of BLM’s decisions pending resolution of appeals are routine.

      • I use the term “rubber stamping” because IBLA almost always upholds the agency, even when more independent authorities (the courts who are not under the thumb of the Secty of Interior) frequently later disagree.

        An example of IBLA abusing authority to deny standing. Citizens appeal a BLM timber sale. IBLA denies standing based on the assertion that the appellants are not able to use and enjoy the BLM site because access is via a road that crosses private land. The fact is the road is open to the public. The citizens have repeatedly visited the site and have pictures to prove it. As far as I know, BLM did not even assert the lack of access. IBLA just made it up out of whole cloth after looking at a map and jumping to erroneous conclusions.

  2. A recent Bitterroot NF timber sale with some interesting appellants (NOT including the Alliance for the Wild Rockies or Native Ecosystems Council):

    And some commentary on the Forest Service process:

    “Thompson said the agency’s appeal process – which relies on an internal review – has never been very effective. All three appeals were reviewed by the supervisor of the Beaverhead-Deerlodge National Forest.” (the next door neighbor).

    “This review process will naturally be influenced by a variety of internal and organizational issues and hardly constitutes an objective and unbiased analysis,” Thompson said

    Better than BLM?

  3. Here’s Brian Hawthorne’s take:

    USFS appeals are something like appealing to the King for something the Prince did wrong. If the King likes you — you’re golden no matter how weak your claim is. If the King doesn’t, you won’t stand a chance.

    With IBLA you’d better have your ducks in order and your i’s and t’s dotted and crossed. If you’re just complaining, they’ll deny you with vigor.

  4. So it’s a general rule that independent is better…that’s why people use audits of forest practices. I wonder why that general rule would be wrong in this case, for those who prefer the FS appeals/objection system without independent review until federal courts?

    It’s interesting to me that the FS has the same process for most projects and the BLM has different ones with different terms. It’s the IBLA step that intrigues me as to how it works and whether as a result there is less or more ultimate litigation.

  5. I’ve always been curious why the BLM doesn’t seem to litigated much. I don’t know much about the BLM timber sales, since there’s very little timber coming from the BLM in the West, but I can’t think of one oil or gas drilling project, which is nothing but BLM out here, ever being litigated. You’d think Western Watersheds or Biodiversity conservation alliance would be litigating the heck out of drilling projects. Certainly the BLM has to follow NEPA on drilling projects? How come no litigation over the “procedural dance?”

    I don’t know…just haven’t really looked at it. Is it cause of this IBLA thing?

  6. Jon, yes, there are many lawsuits with BLM, in fact I have been involved in several. I’m sure there are legal interns somewhere who got to read my exciting emails. The question is whether the IBLA process, because it’s independent and has folks from the law biz involved earlier, somehow does a better/more efficient job of clearing the way for the ultimate litigation or gives plaintiffs a heads-up that it might not be worth it. It kind of surprises me that legal scholars would not have looked at that.. but I am not a legal research, so probably wouldn’t have seen it.

    If panels of BLMers could do as well, seems like the taxpayers could save some money.

  7. I suppose one could assume that Congress did its homework when it replaced the Forest Service appeals process with a pre-decisional objections process last year, and did not find an IBLA-type review to be better for Forest Service-type decisions.

    Also keep in mind that Forest Service objections are intended to serve a purpose of continued public participation in resolving land management problems – in addition to addressing the legal issues that might lead to litigation. (I’m not convinced these situations warrant the same treatment or that they should be combined in the same process.)

    Some discussion of this in the Missoulian this spring:

  8. Jon, I’m not sure that “doing homework” is always done by Congress.. not sure they expressly considered it.
    It wasn’t much of a big step from objections for HFRA projects and objections for plans, to objections for all projects. Not sure they went back to the drawing board. And they never seem to ask questions like “does it make sense for two agencies that are so similar to have completely different processes?” Which is an interesting thought because if no one encourages the agencies to do so..well then you have much much duplication and never look at it.

    It’s easy to say (not you, the FS) that “objections are just more public involvement”. But suppose we (say NAFSR) instituted a buddy system for projects, and I picked one in Montana to be involved with. I decided to attend all meetings with objectors. But I’m not sure I could speak at the meeting unless I also objected? I just need to be clearer on the details of how that is a “public involvement” process.

    We’ve discussed objections on the blog including that Missoulian story.. you can just search on objections in the gray box to the upper right; here’s our ink with comments on that story.

  9. Sorry I missed this one a year ago.
    The question posed is too good to let go.
    I work with the BLM’s IBLA process. It’s horrible and adds nothing to the process.

    There is no defined period for IBLA to respond to an appeal. They can take, literally, a year to respond. When they do respond, they rarely add anything to the issue. There is literally zero communication between IBLA and the field. We never know the status of our appealed project. There is usually a point (45-60 days after the appeal goes to IBLA) in which we let the appellants know that we are going to implement. This is without any word from IBLA. And then the lawsuit comes. Which is a relief after the IBLA black hole.

    I’ve had a couple projects when we get our IBLA ruling after the lawsuit is completed. That always gives us a good laugh. IBLA is very broken.


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