Public Participation in the Management of Forest Service and Bureau of Land Management Lands: Overview and Recent Changes
CRS Report for Congress
Public Participation in the
Management of Forest Service and
Bureau of Land Management Lands:
Overview and Recent Changes
June 17, 2004
Pamela Baldwin
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress
Public Participation in the Management of Forest
Service and Bureau of Land Management Lands:
Overview and Recent Changes
Summary
Historically, opportunities for public participation in the management of the
federal lands managed by the Forest Service (FS) and the Bureau of Land
Management (BLM) increased over the years as the statutes and regulations
governing the lands were modernized, and the remaining federal lands became
increasingly important to the public. Public participation in the management of FS
and BLM lands derives primarily from four sources: (1) the relevant management
laws, regulations, and agency guidance – especially as to planning procedures; (2) the
National Environmental Policy Act environmental review processes; (3) the
Administrative Procedure Act; and (4) administrative and judicial appeals.
Recently, administrative changes have been made to the planning,
environmental review, and administrative appeals procedures to streamline them and
make them more efficient. In addition, the Healthy Forests Restoration Act of 2003
(P.L. 108-148) also seeks to promote efficiency in the context of hazardous fuels
reduction projects by limiting the scope of environmental reviews and expediting
administrative and judicial review. The act also allows other authorities to be used,
including new agency-developed “categorical exclusions” (agency procedures that
eliminate formal environmental evaluations), and a new approach to considering
“extraordinary circumstances” that could reduce the number of environmental
analyses and the associated opportunities for public input. The FS may also place
more of its management direction below the level of regulations, arguably making
it more difficult for the public to obtain information, participate in management
decisions, and perform oversight or seek enforcement.
Both the FS and BLM have changed their systems of administrative appeals.
The FS has eliminated appeals of plans, revisions, and amendments, unless the
amendment is made as part of a project decision. Instead, the FS has instituted a pre-
decisional opportunity to object to a proposed plan. BLM has made fire-related
project decisions effective immediately. This could result in eliminating
administrative appeals in favor of more costly judicial review, and a drop in appeals
numbers may result. A similar stance is proposed by BLM for grazing decisions.
Some applaud these changes as producing long-overdue efficiency and economy
in agency processes. Others assert that the changes are closing the public out of
management decisions for the publicly owned lands, and question whether the
breadth and effects of some of the changes comport with the spirit and letter of the
governing laws. The extent to which recent changes in agency procedures allow or
preclude meaningful public participation in the management of these federal lands
may raise questions of compliance with current statutory requirements, and may raise
policy issues of either legislative or oversight interest to the Congress. This report
discusses these issues and will be updated as circumstances warrant.
Contents
In troduction ......................................................1
Background ......................................................3
The Agencies.................................................3
Sources of Public Participation...................................3
NEPA Overview..............................................4
Forest Service.....................................................7
FS Planning..................................................7
FS Administrative Appeals......................................8
FS Planning Regulations.......................................11
1982 Regulations.........................................12
2000 Regulations.........................................14
2002 Proposed Regulations.................................16
Expansion of and Changes to “Categorical Exclusions”...............21
The Healthy Forests Restoration Act of 2003.......................24
Counterpart Regulations.......................................27
Bureau of Land Management........................................28
Federal Land Policy and Management Act.........................28
BLM Regulations.............................................30
BLM – NEPA and Counterpart Procedures.........................31
Proposed Grazing Regulations...................................34
Proposed Grazing Appeals......................................35
General DOI Appeals..........................................35
Conclusion ......................................................37
Public Participation in the Management of
Forest Service and Bureau of Land
Management Lands:
Overview and Recent Changes
Introduction
The Bureau of Land Management (BLM) in the Department of the Interior and
the Forest Service (FS) in the Department of Agriculture together manage 454
million acres of land, which is approximately two-thirds of the land owned by the1
federal government and one-fifth of the total land area of the United States. These
lands continue to be important in our national life, serving economic, security,
social, scenic, habitat, watershed, recreational and other purposes. Historically,
opportunities for public participation in the management of these federal lands
increased over the years and came to play a greater role as the statutes and regulations
governing the lands were modernized, and as other open space lands became scarce
and the remaining federal lands became increasingly important to the surrounding
communities and to the public at large.
Public participation in the management of FS and BLM lands derives primarily
from four sources:
1) the relevant management laws, regulations, and other agency management
guidance – especially as to planning procedures; 2
2) the National Environmental Policy Act (NEPA) environmental review
processes; 3
3) the Administrative Procedure Act (APA); and
Recently, administrative changes have been made to the planning and appeals
procedures of the agencies in an effort to streamline them and make them more
efficient. The planning and appeal processes of the agencies had been criticized by
1 For background on these two agencies and current issues regarding the lands they manage,
see CRS Issue Brief IB10076, Bureau of Land Management (BLM) Lands and National
Forests, coordinated by Ross W. Gorte and Carol Hardy-Vincent.
2 Pub. L. No. 91-190, 83 Stat. 852, 42 U.S.C. §§ 4321 et seq.
3 5 U.S.C. §§ 551 et seq.
some as cumbersome, expensive, and time-consuming,4 and the changes were
applauded as producing long-overdue efficiency. Others assert that the changes are
closing the public out of management decisions for the publicly-owned lands, and
question whether the changes comport with the spirit and letter of the governing
laws. The extent to which the public is allowed to participate meaningfully in the
management of these federal lands may raise questions of compliance with current
statutory requirements, and may raise policy issues of either legislative or oversight
interest to the Congress.
In addition to these administrative changes, several recent laws have changed
or affected public participation through provisions that address the planning, NEPA,
and appeals processes. Chief among these is the Healthy Forest Restoration Act of
2003, which modifies NEPA, administrative appeals, and judicial review procedures
for hazardous fuel reduction projects on FS or BLM lands. In addition, Congress has
at times legislated to address specific NEPA issues and how agencies may approach
certain time constraints. See, for example, provisions extending the terms and
conditions of expiring grazing permits and leases pending completion of NEPA
reviews.5 Current legislative proposals address only particular aspects of federal
land management, such as management of old growth, etc. – there are no current bills
that would amend the major federal land laws generally, whether as to public
participation or otherwise.
The principal statutes that provide for modern management for the FS and BLM
lands are nearly thirty years old. They provide most clearly for public participation
at the macro-level of area planning, but lack detailed requirements as to public
participation below that level. Whether the statutes should be amended to increase
or decrease public participation involves important policy issues, on which
viewpoints differ.6
This report discusses the management of federal lands by the FS and BLM, and
how public participation enters into that management. The report will be updated as
circumstances warrant.
4 See The Process Predicament – How Statutory, Regulatory, and Administrative Factors
Affect National Forest Management, USDA Forest Service, June 2002. This report at 12-13
discusses, among other things, how the modern management and environmental laws moved
management to a new era marked by ecosystem management across boundaries at the same
time that administrative rules made forest management more complex and cumbersome, and
a “costly procedural quagmire” where a single project can take years to move forward and
planning costs can exceed $1 million. Some have referred to this situation as “Paralysis by
Ana l ys i s .”
5 See § 325 of Pub. L. No 108-108.
6 In commenting on the extraordinary million and a half comments received on the rule to
manage roadless forest areas, most of which favored the greater restrictions that the rule
provided, a FS spokesperson stated that “the final details of the proposed policy won’t be
decided by a popularity contest.” Statement of Cindy Chojnacky quoted in The Oregonian,
at B01, Tuesday, August 29, 2000. The weight to be given public input as a factor in forest
management planning and decisions is an important issue.
Background
The Agencies
The BLM and FS have similar multiple use-sustained yield management
responsibilities for their lands, and many key issues affect both agencies. However,
historically the two agencies have developed differently, and each agency has
particular emphases and functions. For instance, most BLM lands are rangelands,
and the BLM also administers mineral development on federal lands throughout the
nation. BLM also manages significant timber resources in Oregon and northern
California.7 BLM manages the surface of approximately 261.5 million acres of land,
predominantly in the West, principally under the Federal Land Policy and
Management Act of 1976 (FLPMA).8 Title III of FLPMA is sometimes called
BLM’s Organic Act because it consolidated and modernized the agency’s
responsibilities. FLPMA establishes the management principles of multiple use and
sustained yield; provides that the federal government must receive fair market value
for the use of public lands and resources; establishes a general national policy that
the public lands be retained in federal ownership; and expressly requires and
encourages public participation in the management of the public lands.
Most federal forests are managed by the FS, which administers 192.5 million
acres of federal land, with most concentrated in the West. Management direction for
the national forests, first enacted in 1897 and expanded in 1960 and 1976, directs
“harmonious and coordinated management” to provide multiple uses and sustained
yields of resources. Congress enacted the National Forest Management Act
(NFMA)9 in 1976 to revise timber sale authorities and to establish requirements for
land and resource management plans and for public involvement in their
development. NFMA planning has been criticized by some as expensive, time-
consuming, and ineffective for making decisions and informing the public, and there
have been various proposals for changes. The first post-NFMA regulations were
adopted in 1979 and revised in 1982. The 1982 regulations remained in effect until
new regulations were finalized under the Clinton Administration in November of
2000. Because compliance with the 2000 regulations has been postponed, the 1982
regulations continue to govern management of most National Forest System lands.
New planning regulations again were proposed in 2002 by the Bush Administration,
and final regulations may be issued soon. Each set of regulations addresses and
affects public participation in various ways, and is discussed below.
Sources of Public Participation
Despite differences in the lands each agency manages and in agency history and
emphases, the principal statutes governing both agencies direct that public
participation be a part of planning and management. These requirements of the land
7 Oregon and California Railroad and Coos Bay Wagon Road Grant Lands Act of August
8 Pub. L. No. 94-579, 90 Stat. 2744, codified at 43 U.S.C. §§ 1701 et seq.
9 Pub. L. No. 94-588, 90 Stat. 2949, codified at 16 U.S.C. §§ 1600 et seq.
management statutes and their accompanying regulations are one source of authority
and guidance on public participation.
The National Environmental Policy Act (NEPA) provides another important
opportunity for public participation through required procedures for environmental
reviews. The NEPA processes are separate from, but are integrated into, the land
management planning processes, and provide important opportunities for public
participation in agency activities. In some instances, agencies may not provide for
public participation aside from the NEPA context.
The Administrative Procedure Act requires that the public be given access to
certain agency information,10 and afforded notice and an opportunity to comment on
proposed regulatory changes.11 The APA requirements for public notice and
opportunity to comment apply to rulemaking, not to public participation in projects
and activities of the FS and BLM. The act also provides for judicial review of agency
actions,12 and this aspect of the act applies to agency actions in carrying out projects
and activities too.
Various opportunities to administratively appeal agency decisions provide a
fourth avenue for public input into agency decision making by providing
opportunities to change agency decisions. Review opportunities include pre-
decisional administrative “protests” or “objections,” post-decisional administrative
appeals, and judicial review.
All of these aspects are intertwined in the management activities of the two
agencies and will be discussed in this report under headings for each agency.
NEPA Overview
Because NEPA and its requirements for public involvement as part of
environmental reviews play a significant role in agency planning and decision
making, more extensive background on NEPA is provided in this section. Unless
Congress provides otherwise, NEPA applies to all actions of federal agencies. It
establishes national environmental policies and prescribes certain procedural
requirements for all federal agency actions, including those that intersect with private
activities — for example, through federal permits or funding. NEPA requires the
preparation of a full environmental impact statement (EIS) for any major federal
action significantly affecting the quality of the human environment. In practice, and
as articulated in NEPA regulations promulgated by the Council on Environmental
Quality (CEQ), agencies typically prepare an environmental assessment (EA) if an
action might have significant effects on the environment. If an EA indicates that a
proposed action would not have significant environmental effects, the agency issues
a “finding of no significant impact” (FONSI), and formal NEPA procedures are
10 5 U.S.C. § 552.
11 5 U.S.C. § 553.
12 5 U.S.C. §§ 702, 704.
complete. If the EA indicates a proposed action could have significant effects, a full
EIS is then prepared.
Certain categories of activities have been found either separately or
cumulatively to have minor or no environmental effects.13 An agency is excused
from preparing any formal NEPA environmental analyses at all with respect these
categories of actions, and hence they are known as “categorical exclusions.”
In addition to describing types of actions that may be categorical exclusions,
agencies are required to “provide for extraordinary circumstances in which a
normally excluded action may have a significant environmental effect,”14 and be
removed from categorical exclusion status and once again be subject to the
requirements for environmental analyses. A recent source of controversy involves
what approach should be taken when extraordinary circumstances — such as
wetlands or an endangered species — are present in the area of a proposed action that
would otherwise be regarded as a categorical exclusion. Recent expansion of the
circumstances regarded as categorical exclusions and recent changes in handling
extraordinary circumstances have generated controversy, because NEPA analyses are
not being prepared for a broader range of activities, and thus NEPA-associated
opportunities for public participation have been eliminated.
Agencies have other NEPA duties aside from preparation of environmental
documents, and these duties may play a more important role in light of the expanded
use of categorical exclusions. An agency must “[s]tudy, develop, and describe
alternatives to recommended courses of action in any proposal which involves
unresolved conflicts concerning alternative uses of available resources,”15 and must
initiate and use ecological information in the planning and development of resource-
oriented projects.16
The CEQ/NEPA regulations emphasize public involvement, beginning early in
the planning process. An agency is to provide public notice of NEPA-related
hearings, public meetings, and the availability of environmental documents. Notice
of an action of “national concern” is to be published in the Federal Register, and
other notice provisions are specified in the regulations.17 Public hearings or meetings
are to be held if there is substantial environmental controversy concerning the
proposed action or substantial interest in holding the hearing, and agencies are to
solicit appropriate information from the public.18 How some of these requirements
may be applied to FS and BLM actions is unclear.
13 40 C.F.R. § 1508.4.
14 Id.
15 40 C.F.R. § 1507.2(d).
16 40 C.F.R. § 1507.2(e).
17 40 C.F.R. § 1506.6.
18 40 C.F.R. § 1506(c) and (d).
The NEPA processes are to begin with “an early and open process for
determining the scope of issues to be addressed and for identifying the significant
issues related to a proposed action.”19 This “scoping” process affords the public an
opportunity for pre-decisional input. An extensive NEPA regulation requires public
involvement and requires agencies to make “diligent efforts to involve the public in
preparing and implementing their NEPA procedures” and to provide notice of all
NEPA-related hearings, meetings, and documents.20 Public hearings or public
meetings are to be held whenever appropriate, or in accordance with statutory
requirements applicable to the agency, considering such things as whether there is
substantial environmental controversy concerning the proposed action or substantial
interest in holding the hearing.21
In addition, the public is to be given an opportunity to comment on draft EISs.22
There is no express requirement for a comment period on EAs in the NEPA
regulations. The most detailed and express NEPA requirements regarding
opportunities for public participation occur in the context of EIS preparation, and the
agencies’ planning processes also afford the greatest opportunities for public
involvement in connection with actions involving preparation of an EIS. NEPA
procedures are to be integrated into the other studies and processes an agency would
otherwise be following.23 Each department and each agency within a department may
elaborate on the CEQ/NEPA processes with their own requirements and guidance.24
Each agency also may be subject to requirements for public participation that derive
from other statutes, and each may voluntarily require or allow additional public
participation aside from the NEPA context.
One result of the integration of NEPA processes with the planning process has
been that agency regulations may not expressly provide specific opportunities for
public participation aside from the NEPA context. For example, if a proposed
activity is categorically excluded from NEPA documentation and reviews, there may
be an absence of other administrative requirements for public involvement in the
project decision making process. This issue has been highlighted by the recent
expansion of categorical exclusions by the FS and BLM. It is possible that the
public participation in categorically excluded projects may consist only of the general
scoping process,25 but it is possible that some additional public involvement may be
required for controversial projects or those with unresolved alternatives for resource
management required under NEPA regulations.
19 40 C.F.R. § 1501.7.
20 40 C.F.R. § 1506.6(a) and (b).
21 40 C.F.R. § 1506.6(c).
22 40 C.F.R. § 1503.1.
23 40 C.F.R. § 1500.2(c).
24 40 C.F.R. § 1507.3.
25 Even the scoping process may not be required. Department of the Interior guidance in the
Departmental Manual at 516 DM 3.3B states that scoping “may” be done in connection with
preparation of an EA. If scoping is discretionary at the level of an EA, it is likely to be
discretionary or eliminated with respect to categorical exclusions.
The particular statutes and regulations governing each agency are discussed in
the following sections of this report.
Forest Service
FS Planning
The original 1897 statute governing the management of the national forests did
not address public participation.26 The Multiple-Use Sustained-Yield Act of 1960
authorizes the Secretary of Agriculture to cooperate with interested state and local
governmental agencies “and others” in the development and management of the
national forests.27 In 1976, Congress enacted laws to modernize the management of
both the public lands and the National Forest System. The National Forest
Management Act of 1976 (NFMA)28 was enacted as a major amendment to the Forest
and Rangeland Renewable Resources Planning Act of 1974.29 In the findings section
of NFMA, Congress found that the national interest in a renewable resource program
must be based on “... [certain elements] and public participation in the development
of the program.”30 Land and resource management plans are to be developed for
units of the National Forest System, and these plans are to be “coordinated with the
land and resource management planning processes of State and local governments
and other Federal agencies.”31 The public is to be involved in the development,
review, and revision of these plans:
The Secretary shall provide for public participation in the development, review,
and revision of land management plans including, but not limited to, making the
plans or revisions available to the public at convenient locations in the vicinity
of the affected unit for a period of at least three months before final adoption,
during which period the Secretary shall publicize and hold public meetings or
comparable processes at locations that foster public participation in the review32
of such plans or revisions.
The land and resource management plans are to form one integrated plan for
each unit of the National Forest System, incorporating in one document or one set of
documents, available to the public at convenient locations, all of the features required
by the NFMA planning section.33 Plans may be amended “in any manner
whatsoever” after public notice, but if an amendment would result in a significant
change in a plan, it must be amended in accordance with the substantive and form
26 Act of June 4, 1897, ch.2, 30 Stat. 35.
27 Pub. L. No. 86-517, 74 Stat. 215, 16 U.S.C. § 531.
28 Pub. L. No 94-588, 90 Stat. 2949, codified 16 U.S.C. §§ 1600 et seq.
29 Pub. L. No. 93-378, 88 Stat. 476.
30 16 U.S.C. § 1600(3).
31 16 U.S.C. § 1604(a).
32 16 U.S.C. § 1604(d).
33 16 U.S.C. § 1604(f)(1).
requirements for plans.34 Plans may be revised from time to time, and must be
revised at least every 15 years in accordance with the substantive, form, and public
participation requirements of the planning section.35 NFMA also states that
implementing regulations shall include procedures to insure that land management
plans are prepared in accordance with NEPA, including direction on when and for
which plans an environmental impact statement shall be prepared.36 Therefore, it is
clear that Congress envisioned public participation in the development and revision
of plans; it is less clear how extensive public participation must be with respect to
amendments of plans or management, projects and activities implementing plans, or
decision making in general.37 Department of Agriculture NEPA regulations do not
elaborate on when an EIS or EA is required and do not address public participation
in either context. They do require agencies to determine continued eligibility of
actions for categorical exclusion status.38
FS Administrative Appeals
Another significant aspect of public involvement in FS planning and activities
has been administrative appeals of agency decisions. Although until recently there
was no express statutory requirement to do so, the FS has provided for some version
of administrative appeals since 1906.39 Basically, appeals of decisions of one forest
officer were taken to a superior officer. Before the enactment of NEPA, appeals were
the primary mechanism for challenging management decisions of the FS.40 As public
involvement in federal land management increased over time, and especially after the
first round of plans required by NFMA were completed, the number of appeals grew.
Some asserted that appeals were crippling management; others disputed that the
problems were as bad as was sometimes asserted.41
34 16 U.S.C. § 1604(f)(4).
35 16 U.S.C. § 1604(f)(5).
36 16 U.S.C. § 1604(g)(1).
37 The committee report indicates that Congress believed that early public participation in
the development of regulations, plans, criteria, and standards for FS programs was most
important. S. Rep. No. 94-893 at 1, 5, 34, 40 (1976); S. Rep. No. 94-905 at 2 (1976); H.R.
Rep. No. 941478, Pt. 1 at 7 and 19 (1976), emphasizing making proposed plans available
for public comment; and S. Rep. No. 94-1335 at 23 (1976).
38 7 C.F.R. § 1b.3.
39 See 53 Fed. Reg. 17,310 -17,311 (1988).
40 Bradley C. Bobertz and Robert L. Fischman, Administrative Appeal Reform: the Case of
the Forest Service, 64 U. Colo. L. Rev. 372, 375-376 (1993).
41 Several studies provided factual background: Office of Technology Assessment, U.S.
Congress, Pub. No. OTA-F-505, Forest Service Planning: Accommodating Uses, Producing
Outputs, and Sustaining Ecosystems (February, 1992); Pamela Baldwin, Congressional
Research Service, Pub. No. 92-349A: Administrative Appeals of Forest Service Timber
Sales (April 8, 1992); and, more recently, Pamela Baldwin, Congressional Research Service,
Pub. No. 97-274A: Federal Land Management: Appeals and Litigation – Overview
Prepared for a Workshop Held by the Senate Committee on Energy and Natural Resources
(continued...)
In May 1988, the FS proposed changes to its appeals system that were premised
in part on the view that if the public was involved earlier in the decision making
process — through NEPA and some of the provisions of NFMA on planning —
administrative appeals were redundant.42 According to the FS, the public
participation aspects of NEPA had legislated administrative appeals into
obsolescence.43 The FS finalized new appeal regulations in 1989,44 streamlining
appeals of actions documented under NEPA and NFMA, including plans and project
decisions, reiterating that appeals were simply another type of public participation
and were less important than pre-decisional public participation. “We believe that
public participation and involvement in planning and decisionmaking is more
effective prior to making the actual decision than afterwards.”45 On March 19, 1992,
Secretary of Agriculture Edward Madigan announced that the appeals regulations
would again be revised to eliminate appeals of timber sales and other project-level
decisions.46 Instead, notice of projects for which an EA had been prepared would be
published and comments taken before a final decision would be made. This pre-
decisional process combined with the elimination of a right to appeal again reflects
the agency thinking that administrative appeals have become a redundant form of
public participation.
Pre-decisional public input can be beneficial in that a proposed agency action
can more readily be modified before a decision is finalized, to take into account
matters and preferences presented by the public. On the other hand, absent any form
of administrative post-decisional appeal, and with only the more expensive option of
judicial review of agency decisions, there could be a tendency on the part of agency
decision-makers to disregard the pre-decisional public input. Arguably,
administrative appeals can complement pre-decisional input by providing a check on
actual agency action.
The 1992 FS proposal to eliminate appeals elicited controversy and debate, and
resulted in Congress enacting the Appeals Reform Act (ARA), § 322 of the FY1993
Department of the Interior and Related Agencies Appropriations Act.47 ARA
41 (...continued)
(February 26, 1997).
42 53 Fed. Reg. 17,312-17,313 (1988).
43 Id.
44 54 Fed. Reg. 3,342 (1989).
45 54 Fed. Reg. 3,342, 3,344 (1989).
46 57 Fed. Reg. 10,444 (1992).
47 Pub. L. No. 102-381, 106 Stat. 1419. Some Senators had reacted vigorously to the
proposal to eliminate appeals: Sen. Wyche Fowler asserted forest management problems
would be worsened not solved by saying “Well, we’ll listen to these people, but if we
disagree with them, tough. That’s it. Book closed. You have no appeal. We are the
government, not you ... I am the god of the forest.” Speaker Thomas Foley asserted that
eliminating appeals would violate the legal guarantees of full and open public participation
and weaken public confidence. However, other senators supported the proposed changes.
(continued...)
requires the Secretary of Agriculture, acting through the Chief of the FS, to establish
processes both for notice and comment regarding proposed projects and activities
implementing plans, and for administrative appeals of such projects and activities.
ARA added to the NFMA language regarding public participation in planning
processes by specifically requiring notice and an opportunity for comment with
respect to projects and activities implementing plans. Before proposing an action
concerning projects and activities implementing plans, the Secretary is required to
mail notice about the proposed action to any person who has requested it in writing,
and to persons who are known to have participated in the decision making process.
Newspaper publication is also generally required, and a Federal Register notice is
required for actions taken by the Chief. A 30 day comment period then must follow.
Therefor, although an opportunity for public comment is not expressly required by
the CEQ regulations with respect to project EAs, a comment period is required by
ARA.
Under ARA, persons who are involved in the public comment process through
written or oral comments or by otherwise notifying the FS of their interest in the
proposed action have a right to appeal within 45 days from the time of a decision.
The statute provides for informal or formal disposition of administrative appeals, and
establishes time periods. Unless the Chief of the FS determines that an emergency
exists, a decision normally is to be stayed during the appeal filing period, or until 15
days after the date of the disposition of an appeal.
ARA effectively rejected the FS position that post-decisional administrative
appeals are redundant if an opportunity for pre-decisional public input is provided.
However, as will be seen in the discussion of recent regulatory changes and
proposals, that FS approach is still evident as to FS actions not covered by ARA —
notably the amendment or revision of plans, where the FS has eliminated appeals for
some actions if an opportunity for pre-decisional public involvement is provided.
Until the recent changes to the appeal regulations, there were three types of
appeals set out in 36 C.F.R., Part 217 for appeals of plans and significant plan
amendments, Part 215 for appeals of projects and activities implementing plans, and
Part 251 for appeals by permittees. There was no pre-decisional process for objecting
to or protesting a proposed FS decision. Provisions relating to notice of actions and
opportunities for public comment appeared in the planning and appeals regulations,
and varied depending of the level of the action. Despite the breadth of the ARA
language, notice and an opportunity to comment were not provided for all proposed
actions implementing forest plans. New FS post-ARA appeal regulations will be
discussed in connection with the 2002 proposed planning regulations below. The
ARA notice, comment, and appeal requirements have been dealt with in varying
ways in the FS regulations.
47 (...continued)
See Administrative Appeal Reform: the Case of the Forest Service, supra, at 398-399.
FS Planning Regulations
The general FS planning regulations have had a history of changes. Basic
planning regulations were adopted in 1979 and revised in 1982. The 1982
regulations basically remained in place with few changes until new planning
regulations were finalized November 9, 2000 under the Clinton Administration.48
The 2000 regulations were to have been phased in over time, but the current
Administration has extended the time for compliance with the new regulations,
thereby leaving the 1982 regulations in place. A new set of planning regulations was
proposed in 2002, but these have not yet been finalized.49 Both the 2000 regulations
and the 2002 proposed regulations would make significant changes in the application
of NEPA to forest planning, and would affect public participation as well.
The statutory requirements for public participation are most detailed and express
with respect to plans. While plans are vitally important in establishing the overall
guidance for forest management, a great deal of actual on-the-ground forest
management takes place in the selection, configuration, and execution of projects and
activities that implement the plans.50 In the absence of specific statutory direction in
NFMA in this regard, ARA, agency regulations, and other agency directives currently
play a major role in determining the extent of public involvement below the level of
plans.
Regulations of the Department of Agriculture and of the FS also contain the
framework for NEPA compliance. Departmental regulations set out the NEPA
policies for the Department as a whole, require compliance with that act, and charge
the Under Secretary, Natural Resources and Environment with ensuring that the
implementing procedures of agencies within the department are consistent with CEQ
regulations.51 Some departmental categorical exclusions are set out, and agencies are
charged with identifying additional ones and establishing exceptions when an EA or
EIS must be prepared.52
Some of the aspects of the three sets of FS planning regulations that are most
relevant to public participation are discussed in this section. References in this
section to the year 2000 Code of Federal Regulations (C.F.R.) refer to the 1982
regulations; references to the 2003 C.F.R. set out the November 9, 2000 Clinton
Administration changes; references to the Federal Register refer to the new planning
regulations that were proposed in 2002.
48 65 Fed Reg. 67,514 (November 9, 2000).
49 67 Fed. Reg. 72,700 (December 6, 2002).
50 Michael J. Gippert and Vincent L. DeWitte, The Nature of Land and Resource
Management Planning Under the National Forest Management Act, 3 ENVTL. LAW 149,
(September, 1996).
51 7 C.F.R. § 1b2.
52 7 C.F.R. § 1b.3(c).
1982 Regulations. The 1982 regulations set out the general principle of
public participation, and are more clear and specific with respect to public
participation in the development and revision of plans and regional guidance than
they are with respect to projects and activities that implement plans. However, the
regulations do refer to public participation in connection with activities below the
planning level:
(a) Because the land and resource management planning process determines how
the lands of the National Forest System are to be managed, the public is
encouraged to participate throughout the planning process. The intent of public
participation is to –
(1) Broaden the information base upon which land and resource management planning
decisions are made;
(2) Ensure that the Forest Service understands the needs, concerns, and values of the
public;
(3) Inform the public of Forest Service land and resource planning activities; and
(4) Provide the public with an understanding of Forest Service programs and proposed
actions.
. . .
(c) Public participation activities, as deemed appropriate by the responsible line
officer, shall be used early and often throughout the development of plans. At
least 30 days’ public notice shall be given for public participation activities
associated with the development of regional guides and forest plans. Any notice
requesting written comments on regional planning shall allow at least 60
calendar days for response. A similar request on forest planning shall allow at
least 30 calendar days for response. Draft regional guides and forest plans and
environmental impact statements shall be available for public comment for at53
least three months.
Section 219.6 details the type of notice and duration of comment periods
required in connection with regional guides and forest plans. Requirements for
notice and preparation of an EIS for such documents also are set out:
The responsible line officer shall give notice of the preparation of a land and
resource management plan, along with a general schedule of anticipated planning
actions, to the official or agency so designated by the affected State. These
notices shall be issued simultaneously with the publication of the notice of intent54
to prepare an environmental impact statement required by NEPA procedures.
A draft and final EIS must be prepared for plans, regional guides, plan revisions,
or significant amendments to plans, and for proposed standards and guidelines in
53 36 C.F.R. § 219.6 (2000) (emphasis added).
54 36 C.F.R. § 219.7 (2000).
regional guides,55 with at least a three-month comment period on a draft EIS.56
Before the most recent appeal regulation changes, former § 215.4 stated that actions
described in a draft EIS were subject to the NEPA notice and comment requirements
of 40 C.F.R. §§ 1500-1508, but not to FS notice and comment requirements.
Although the NFMA requires revision of forest plans at least every 15 years, the 1982
regulations require the revision cycle ordinarily to be every 10 years.57 Significant
amendments to a plan are to be completed through the same procedures as those
required for development and approval of a plan.58 NFMA and the regulations
require all activities to be consistent with the relevant plan.59 For plan amendments,
the responsible official must complete “satisfactory” environmental analyses and
conduct “appropriate” public involvement.60 Additional guidance with respect to
when environmental assessments, rather than EISs, are to be prepared, and on those
activities that are categorically excluded from NEPA document preparation are found
in the FS Handbook 1909.15, chapter 30.
Although there are no provisions in the 1982 planning regulations that require
specific types of public participation with respect to projects and activities
implementing forest plans, after the enactment of ARA in 1992, there is general
direction that “appropriate” public notification be provided, and there is guidance that
appears to allow for public participation for activities below the level of plans:
Public participation activities should be appropriate to the area and people
involved. Means of notification should be appropriate to the level of planning.
Public participation activities may include, but are not limited to, requests for
written comments, meetings, conferences, seminars, workshops, tours, and61
similar events designed to foster public review and comment ....
After 1992, the 1982 planning regulations were implemented in the context of
the notice and comment and appeal provisions of ARA and the new appeals
regulations that followed its enactment. Despite the breadth of the language in ARA
that required notice and comment for all projects and activities implementing plans,
under the regulations implementing ARA (i.e. before the 2000 Clinton
Administration changes or proposals), notice and opportunity to comment was only
provided for projects for which at least an environmental assessment was prepared,
and for most timber harvests that were listed as categorical exceptions to the
preparation of NEPA documents. Notice and comment was not provided for other
55 36 C.F.R. §§ 219.8(c) and 219.10(b)(2000). The NEPA documents were required to be
a single process that complied both with planning requirements and NEPA/CEQ
requirements.
56 36 C.F.R. § 219.8(b) (2000).
57 36 C.F.R. § 219.10(g) (2000).
58 36 C.F.R. § 219.10(f) (2000).
59 36 C.F.R. § 219.10(e) (2000).
60 36 C.F.R. § 219.10(f) (2000).
61 36 C.F.R. § 219.6(d) (2000).
categorically excluded activities,62 nor for non-significant amendments to plans that
were separate from project decisions, or were a part of a project for which no EA or
EIS was prepared.63
2000 Regulations. The 2000 (Clinton Administration) planning rule stressed
expansion of collaboration and pre-decisional public participation requirements.64
The regulations again specified more details with respect to revisions of plans, and
one regulation required public participation in planning in general:
The responsible official must:
(a) Make planning information available to the extent allowed by law;
(b) Conduct planning processes that are fair, meaningful, and open to persons of
diverse opinions;
(c) Provide early and frequent opportunities for participation in the identification of
issues;
(d) Encourage interested individuals and organizations to work collaboratively with
one another to improve understanding and develop cooperative landscape and other
goals;
(e) Consult with individuals and organizations who can provide information about
current and historic public uses within an assessment or plan area, about the location
of unique and sensitive resources and values and cultural practices related to issues in
the plan area; and
(f) Consult with scientific experts and other knowledgeable persons, as appropriate,
during consideration of collaboratively developed landscape goals and other65
activities.
The responsible official must seek to collaborate with those who have control or
authority over lands adjacent to or within the external boundaries of national66
forests or grasslands ....
Plan revisions began with advance notice and a comment period, and a draft and
final EIS were to be completed with an associated comment period.67 The 2000
regulations eliminated the requirement that plans be revised every 10 years and
instead simply referred to the relevant NFMA provision — which requires revision
every 15 years.68 This change also is expressed in the 2002 proposed rules.
Unless otherwise provided by law, under the 2000 regulations the responsible
official could propose to amend or revise a plan, propose a site-specific action, or
both, and was required to analyze the effects of any proposal and alternative(s) in
62 36 C.F.R. § 215.4(e)(2000)
63 36 C.F.R. 215.4(b), 215.3(a),(c) (2000).
64 See 36 C.F.R. §§ 219.2(c)(2) and (d); 219.12; – 219.18 (2003). The explanatory materials
indicate that not all commenters agreed that public participation had been expanded. 65
Fed. Reg. 67,537.
65 36 C.F.R. § 219.16 (2003).
66 36 C.F.R. § 219.17 (2003).
67 36 C.F.R. § 219.09 (2003).
68 36 C.F.R. § 219.9(a) (2003).
conformance with Forest Service NEPA procedures.69 This language did not require
any particular level of NEPA analysis and no particular type of public participation
was specified.
Reflecting statutory language, all site-specific decisions, including authorized
uses of land, were required to be consistent with the applicable plan. If a proposed
site-specific decision was not consistent with the applicable plan, the responsible
official might modify the proposed decision to make it consistent with the plan, reject
the proposal; or amend the plan to authorize the action.70 Similar language is
contained in the 2002 proposed regulations.
As discussed in connection with the 1982 regulations above, notice and
comment provisions appeared as part of the appeals regulations after the enactment
of ARA in 1993 (See 36 C.F.R. Part 215.) Despite the broad language of the ARA,
notice and opportunity to comment was only required for proposed actions
implementing forest plans for which an environmental assessment was prepared, for
categorical exclusions involving timber harvests, but not for other projects, nor for
non-significant amendments to plans that were included as part of a decision on a
proposed action for which an EA was prepared.71 Exceptions to the notice and
comment requirements of ARA were retained under the 2000 regulations and would
be expanded under the 2002 proposed regulations.
The Clinton rules included a new pre-decisional “objection” process for plans
and eliminated administrative appeals of plan revisions and amendments. Any
person could object to a proposed plan amendment or revision, except for those
proposed by the Chief.72 If an objection was received, the proposed amendment or
revisions could not be approved until the reviewing officer had responded to all
objections, and the final decision had to be consistent with the reviewing officer’s
response to objections.73 The Part 217 appeals of plans, revisions, and amendments
would be phased out.74 Appeals of site-specific decisions would still be available
under Part 215. These approaches are also taken in the 2002 proposed rules.
The explanatory material accompanying the Clinton regulations indicates that
many comments urged retaining appeals to ensure cumulative analysis of actions and
to allow public oversight of FS policy, and asserted that appeals are a citizen’s right,
and provide a means to resolve conflicts other than through litigation. The FS
responded that Part 217 appeals forced the expenditure of significant human and
financial resources “in fulfillment of procedural requirements,”75 and that appeals
may result in a polarized relationship in contrast to the pre-decisional objection
69 36 C.F.R. § 219.6 (2003).
70 36 C.F.R. § 219.10 (2003).
71 36 C.F.R. 215.3(a) – (c) (2000).
72 36 C.F.R. § 219.32 (2003).
73 36 C.F.R. § 219.32 (2003).
74 36 C.F.R. § 215.12 (2003).
75 65 Fed. Reg. 67,562.
process that could provide the “opportunity to seek reasonable solutions to
conflicting views before a plan amendment or revision is adopted.”76 These
arguments reflect points made before ARA was enacted, and seem premised on the
belief that appeals serve no purpose if pre-decisional public participation is provided.
Whether Congress will once again legislate to address public participation and
appeals of planning decisions is unclear.
2002 Proposed Regulations. The new proposed planning rule77 contains
general requirements for public participation, but also could make public
participation more difficult. On the one hand, the 2002 proposed rules include
general language that would require meaningful public participation in the planning
process, but would leave the specifics of how that participation will occur to the
responsible official:
The Responsible Official must provide early and frequent opportunities for
individuals and entities to participate openly and meaningfully in the planning
process. The Responsible Official shall determine the methods and timing of
opportunities to participate in the planning process. The Responsible Official
must provide for and encourage participation by interested individuals and
organizations, including private landowners whose lands are within, adjacent to,78
or otherwise affected by management actions on National Forest System lands.
Several other changes, however, appear likely to make public participation more
difficult. Of particular relevance is proposed § 219.2(c)(2), which indicates that more
management direction is to be moved to the directives level (i.e. it will not be in the
more binding and readily available regulations, but rather in the FS Manual or
handbooks, or even below that level in agency ‘white papers’ that are referred to79
several times in the explanatory material accompanying the proposed regulations).
It is not clear where or how these agency white papers, that will evidently contain
management guidance, may be made available to the public. Although the FS
Manual and handbooks are on-line, they do not have changes integrated into a80
comprehensive text promptly. In addition to the Manual, handbooks, and white
paper guidance, regional and forest-by-forest guidance also affect plans and
activities. Arguably it could be difficult for a member of the public to retrieve all the
relevant pieces of information and meld them into coherent information on how
forests are to be managed. This piecemeal approach, by which planning requirements
and guidance are not compiled and integrated, could make it more difficult for the
public to ascertain what the planning requirements are, and hence whether there has
76 Id.
77 67 Fed. Reg. 72,770 (December 6, 2002). For a general discussion of the proposed rule,
see the CRS Congressional Distribution Memorandum, Analysis and Critique of the Forest
Service Planning Regulations Proposed on December 6, 2002, by Pamela Baldwin, January
78 Proposed 36 C.F.R. § 219.12; 67 Fed. Reg. 72,799.
79 See e.g. 67 Fed. Reg. 72,784 and 72,786, both of which refer to expected guidance on
conservation of species being set out in agency white papers.
80 For example, as of May 26, 2004, the on-line FS Handbook materials on categorical
exclusions at 1909.30 still do not reflect the 2002 changes.
been compliance with them in any particular instance, or how the public might be
able to have input into the process or obtain judicial review.81
There are currently regulations at 36 C.F.R. Part 216 that were adopted in 1984
and provide for public input into and comment on FS Manual directives. If a Manual
directive is determined by the responsible official to be one that is of “substantial
public interest or controversy,”82 the regulations provide for a gradation of public
notice and comment procedures depending on the scope of the directive involved.
National proposals normally require notice published in the Federal Register,
followed by a minimum of 60 days for public review and comment. At the forest or
district level, the responsible official determines the appropriate means of notifying
the public of Manual changes, which may include a notice published in a newspaper
of general circulation or a press release, and a minimum of 30 calendar days for
review and comment.83 However, these procedures may be waived “for good cause
that an exigency exists,” in which case an interim Manual directive may be put in
place before any opportunity is afforded for public comment.84
However, the requirements of Part 216 do not apply to material in Handbooks
or to certain types of Manual directives,85 and it appears likely that “white papers” are
not covered either. If not, public input is not required with respect to those forms of
directives and any management direction they contain could be accomplished without
public notice or involvement.
In addition, there is some question whether and when manual and handbook
materials are even binding on the agencies. A court may conclude in some cases that
manual and handbook provisions are binding on an agency, depending on whether
the manual or handbook provisions were adopted with publication and other
formalities associated with full rulemaking. But, in contrast to agency regulations,
provisions contained in agency manuals and handbooks have generally been held to
lack the force and effect of law, to be non-binding on agencies, to be subject to
informal change, and not to give rise to private rights of enforcement.86 To the extent
a court so characterized the FS Manual handbook, white papers, or other directives,
moving forest management guidance to this level may preclude citizen enforcement
actions or judicial review both of agency planning standards and requirements, and
of compliance with them.
81 One has only to look at the series of directives issued in the context of the management
of the roadless areas to see the problems that can ensue. Those national directives have been
seen as confusing at best, sometimes were published only well after they were effective, and
are difficult to find on-line in an integrated form.
82 36 C.F.R. § 216.4 (2003).
83 36 C.F.R. § 216.6 (2003).
84 36 C.F.R. § 216.7 (2003).
85 36 C.F.R. § 216.3(a)(2) and (3)(2003).
86 KENNETH CULP DAVIS AND RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE §
All of the sets of regulations have urged coordination of federal planning with
other federal agencies and with non-federal planning entities in the area, such as
state, local, and tribal governments, but some of the details of the 2002 proposed
regulations may connote a shift in emphasis as to the type of participation in some
circumstances. Section 219.12 refers to “engaging the skills” of interested people
and entities. Under proposed § 219.12, the regulations state that individuals
(subsection (a)(1)) and Indian Tribes (subsection (a)(3)) must be given opportunities
to “participate.” When referring to state and local governments and other federal
agencies in (a)(2), the opportunity that must be provided is to “be involved.” This
may mean that non-federal state and local government staff may directly engage in
the planning process, as was done in the preparation by BLM of the Grand Staircase-
Escalante Management Plan.87 In such circumstances, issues may arise involving the
difference between coordinating a federally-devised management plan for the federal
lands with those of surrounding jurisdictions – even following collaborative and
cooperative public input – and improperly permitting federal planning to be
conducted by non-federal personnel.
The 2002 proposed regulations expressly state that plans are usually to be
revised every 15 years — a provision that reflects the express language of the NFMA.
In a significant change, an EIS would not necessarily be prepared for plans, revisions,
and amendments, and some plans could even be prepared as categorical exclusions
— without completion of any NEPA analysis at all:
(a) The Responsible Official must comply with NEPA procedures and
incorporate them as necessary and appropriate throughout the planning process.
The Responsible Official must determine how NEPA applies in the development
of a new plan, plan amendment, or plan revision. The Responsible Official shall
ensure that the level of NEPA analysis for planning is proportional to the
decisions being made.
(b) If the Responsible Official determines that a new plan, plan amendment, plan
revision, or a component thereof, would be an action significantly affecting the
quality of the human environment, or authorizes an action that commits funding
or resources that could have a significant effect on the quality of the human
environment, then an environmental impact statement would be required. A new
plan, plan amendment, or plan revision may be categorically excluded from
documentation in an Environmental Assessment or Environmental Impact88
Statement as provided in agency NEPA procedures. (Emphasis added.)
As discussed above, despite the broad language of ARA, under current
regulations decisions related to projects that are categorically excluded from NEPA
analyses need not include public notice and comment. What public participation
would be provided for plans prepared as categorical exclusions is not clear.
The explanatory materials to the 2002 proposed regulations assert that the
reason plans can be categorically excluded is that plans are permissive — they allow,
87 Jarry Spangler, ‘Enlibra’ – balance & stewardship, DESERET NEWS, November 29, 1998,
at B01, described the state and local officials as working “hand-in-glove” with federal
personnel.
88 67 Fed. Reg. 72,797 re 36 C.F.R. § 219.6.
but do not direct, that things may happen in specified areas. However, the plans are
the “programmatic management direction,”89 set the objectives of all forest
management that will guide particular decisions,90 set standards that state the
permissions or limitations for uses and actions,91 zone the forests, and eliminate some
uses and activities from particular areas — all decisions that could be made under the
proposed regulations without consideration of the environmental effects of these
choices or consideration of other alternatives, and without public participation.
Under the 2002 proposed rule, plans could be amended instantly in several ways
— with some associated limitations on public participation. Under proposed §§
219.7 and 219.18, administrative corrections and additions are expressly stated as not
being amendments. Proposed § 219.7(f) would provide for “interim amendments”
which could be for a term of up to four years that is renewable.92 The regulation is
silent as to notice to the public and public participation in the promulgation of such
interim amendments, except with respect to notice of renewals of interim
amendments. The planning regulation is also silent as to whether these amendments
may be appealed, but under § 219.7(f)(4), interim amendments would not be subject
to the objection process.
Proposed § 219.10(d)(3) would allow a plan to be amended in and by a project
decision — anytime a project would be inconsistent with a plan, the plan could be
instantly amended to produce consistency. This is similar to § 215.3 of the Clinton
regulations. Under the 2002 proposed regulations, an amendment made as part of a
decision is not subject to the objection process,93 but is appealable.94 It appears that
even an amendment made as part of a project decision for which an EA is prepared
is not eligible for the objection process. Legal notice must be published in designated
local newspapers for amendments that are subject to the objection process95 — which
amendments made as part of a project decision are not.
For an amendment that is subject to objection under § 219.19, proposed §
219.7(e) would require prior notice to the public of the opportunity to object to the
proposed amendment and any associated NEPA documents. Under § 219.19(a),
there will usually be a 30 calendar day period for pre-decisional review of a proposed
89 Id., re 36 C.F.R. § 219.4(a).
90 Id., re 36 C.F.R. § § 219.4(a)(2).
91 Id., re 36 C.F.R. § 219.4(a)(3).
92 67 Fed. Reg. 72,803.
93 67 Fed. Reg. 72,803, re 36 C.F.R. § 219.19(a)(1).
94 67 Fed. Reg. 72,804, re 36 C.F.R. § 219.20 (2003) states that a plan amendment made as
part of a site-specific decision may only be appealed as described in 36 C.F.R. § 215.7(a).
This latter section at that time (before the new appeal regulations) provided that project and
activity decisions that were documented in a Record of Decision or Decision Notice,
including those which contained a non-significant amendment as part of a project approval
decision, were subject to appeal. New § 215.11(a) allows an appeal of a non-significant
plan amendment made as part of a project decision.
95 67 Fed. Reg. 72,803 re 36 C.F.R. § 219.19(b)(2).
plan amendment, or revision through the “objection” process. Objections may only
be original submissions (as opposed to pre-printed postcards, etc.), and objections
may only raise the issue of whether the decision is consistent with the plan and law
– not whether it needs to be adjusted in some way to avoid some harm or to better
accomplish some goal.
Post-approval notice of some plan revisions and amendments is required to be
published in the Federal Register if the decision is made by the Chief of the Forest
Service or the Secretary of Agriculture, and “by other appropriate means, as
needed.”96 There is no administrative appeal of these decisions and recourse is to the
courts. 97
Proposed § 219.7(d) provides that a plan amendment for which an EIS is
prepared is a significant amendment, and § 219.6(b) requires preparation of an EIS
for actions that could have a significant effect on the quality of the human
environment (the requirement in NEPA). In light of the fact that under the 2002
proposed regulations, an EIS might not be prepared even for plan revisions, there
may not be many plan amendments for which an EIS would be prepared and hence
few that would be deemed “significant,” and have clear requirements for full public
participation.
There are no specific requirements for public participation set out in the
proposed planning rule for non-significant plan amendments; rather it appears that
only the general provision of proposed § 219.12(a) that calls for “early and frequent”
opportunities for individuals and entities to participate openly and meaningfully in
the planning process pertains. If so, it is for the Responsible Official to determine
the “methods and timing” of opportunities to participate.
However, the new notice and appeal regulations also enter into the public
participation picture. The requirements of ARA are reflected in the notice and
comment and appeals provisions, but exceptions to the ARA requirements are
continued. Under new §215.3, notice and comment is required for projects and
activities for which an EA is prepared, and non-significant amendments made as part
of a project decision for which at least an EA is prepared. However, because ARA
only applied to projects and activities implementing plans, under new § 215.4 notice
and comment are not required for amendments, revisions, or adoptions of plans that
are made separately from any proposed actions and which therefore are subject either
to the objection process under §219.32,98 or administrative appeal under part 217 in
effect prior to November 9, 2000. Also under § 215.4, legal notice and opportunity
to comment is not available for actions taken as categorical exclusions. As will be
discussed in the next section of this report, categorical exclusions have recently been
expanded significantly.
96 36 C.F.R. § 219.21, 67 Fed. Reg. 72,804.
97 36 C.F.R. § 215.20.
98 This reference to § 219.32 is to a section in the 2000 [Clinton Administration] regulations
related to the objection process. The section apparently would be replaced under the 2002
proposed regulations by § 219.19.
Projects and activities implementing plans that are documented in a Record of
Decision or Decision Notice are subject to appeal under § 215.11(a), including those
which contain a non-significant plan amendment. Decisions for actions that are
categorical exclusions are not subject to appeal. Under § 215.12, amendments,
revisions, or adoption of a plan are not subject to appeals under part 215, but rather
are subject to either the objection process of § 219.32 or the appeal procedure under
§ 217 in effect prior to November 9, 2000. An amendment, revision or adoption of
a plan that includes a project decision also is not subject to appeal under part 215,
except that the project portion of the decision is.
Under § 215.9, decisions that are not subject to appeal may be implemented
immediately after publication of a decision documented in a Decision Notice or
Record of Decision that complies with those relevant time-frames. When a
determination has been made under § 215.10 that an emergency exists, a decision
documented in a Decision Notice or Record of Decision may also be implemented
immediately. Part 215 does not contain any provisions to stay a decision and
therefore, judicial review appears to be available for decisions that are immediately
effective.
To obtain a more complete picture of the extent to which the public may
participate in the management of the FS lands, planning rules must be read in
conjunction with the new appeal regulations described above, the new counterpart
regulations and implementing documents, various new categorical exclusions, and
Pub. L. No. 108-148.
Expansion of and Changes to “Categorical Exclusions”
Changes to agency NEPA documentation requirements also could significantly
affect public participation. As discussed above, some agency actions have been
shown to have so little effect on the environment that no NEPA documents are
necessary. An agency may indicate what these clearly non-harmful actions are
through its articulation of “categorical exclusions” — actions that are excluded from
preparation of NEPA documents because they have been found, individually or
cumulatively, not to have a significant effect on the human environment.99 Under
CEQ regulations, categorical exclusions may be adopted only after an opportunity for
public review and review by CEQ.100 Once adopted, however, activities within a
categorical exclusion may be conducted without formal environmental analyses, and,
despite the breadth of language in the ARA requiring notice and an opportunity to
comment for projects and activities implementing plans, no notice or comment is
required by the FS for activities within a categorical exclusion.
New categorical exclusions were developed jointly with the Department of the
Interior to allow “hazardous fuels reduction” activities and rehabilitation projects for
lands and infrastructure impacted by fires or fire suppression to be conducted without
99 40 C.F.R. 1508.4.
100 40 C.F.R. 1507.3.
environmental analyses.101 The hazardous fuels referred to consist of dense forest
growth of trees and underbrush that provide fire ladders and result in fires that burn
very hot and destroy whole trees as opposed to fires that sweep through a forest and
do not burn the crowns of trees. Projects could include mechanical fuels reduction
activities (e.g. cutting) on up to 1,000 acres, and fuels reduction activities using fire
on up to 4,500 acres. Rehabilitation projects may not exceed 4,200 acres. Projects
are to be developed through a collaborative process and limited to certain land types.
They may not be conducted in wilderness areas, but may be conducted in wilderness
study areas if they will not impair the suitability of wilderness study areas, and may
be conducted in FS roadless areas. They may not include the use of herbicides or
pesticides or the construction of new permanent roads.
New categorical exclusions regarding certain timber sales were finalized on July
29, 2003.102 The new exclusions allow live harvests of up to 70 acres; harvests of up
to 250 acres of dead and dying trees; and, if necessary to control insects and disease,
commercial or non-commercial timber harvests of up to 250 acres — with no
requirement that trees be dead or dying.
In addition, Title IV of the Healthy Forests Restoration Act of 2003 on insect
infestations and related diseases authorizes “applied silvicultural assessments,” which
are defined as treatments carried out for information gathering and research purposes,
and include timber harvesting, thinning, prescribed burning, pruning, and any
combination of those activities.103 Under § 404, these treatments may be conducted
on federal land that the Secretary determines is at risk of infestation by, or is infested
with forest-damaging insects, but not in components of the National Wilderness
Preservation System, a congressionally-designated wilderness study area, any federal
land on which, by Act of Congress or Presidential proclamation, the removal of
vegetation is restricted or prohibited, or in an area where the activities would be
inconsistent with the applicable land and resource management plan.
“Secretary” is defined in § 402(4) as the Secretary of Agriculture, acting through
the Forest Service, with respect to National Forest System land, and the Secretary of
the Interior, acting through appropriate offices of the United States Geological
Survey, with respect to federally owned land administered by the Secretary of the
Interior. Therefore, apparently projects could be conducted on all lands managed by
the Secretary of the Interior, including national parks and national wildlife refuges,
and not just on BLM lands.
Title IV projects are to be peer reviewed by scientific experts selected by the
Secretary and the public is to receive notice of each and be given an opportunity to
comment on it. Projects on not more than 1,000 acres may be categorically excluded
from NEPA documentation, but may not be carried out adjacent to another area that
is categorically excluded and being treated with similar methods. The Secretary is
not required to make any findings as to whether an applied silvicultural assessment
101 68 Fed. Reg. 33,814 (June 5, 2003).
102 68 Fed. Reg. 44,598.
103 Section 402(1).
project, either individually or cumulatively, has a significant effect on the
environment. Projects are subject to the extraordinary circumstances procedures
established by the Secretary. Not more than 250,000 acres may be treated as
categorical exclusions.104
Some have reacted favorably to the expanded use of categorical exclusions as
a way to accomplish necessary projects promptly. Others have pointed out that
environmental effects are not being analyzed despite the cumulative size of excluded
project areas, and have claimed that usually the public is denied an opportunity to
comment on or modify the project. In addition, some assert that the desire to reduce
fire risk is being used to accomplish the cutting of large green timber.
The categorical exclusions portion of the FS Handbook sets out types of
activities that normally would be excluded from preparation of NEPA documents —
unless extraordinary circumstances are present. Extraordinary circumstances include
the presence of inventoried roadless areas or species listed under the Endangered
Species Act. Until recent FS changes, extraordinary circumstances were defined as
“conditions associated with a normally excluded action that are identified during
scoping as potentially having effects which may significantly affect the
environment.” (Emphasis added.) The presence of an extraordinary circumstance
arguably removed the proposed action from qualifying as a categorical exclusion and
required the preparation of an EA in order to evaluate the possible environmental
effects and determine whether an action might have significant effects requiring an
EIS. This is the interpretation of the Handbook section and its legislative history in
a Seventh Circuit case.105
New interim guidance has been finalized106 so that now the presence of
extraordinary circumstances does not necessarily preclude an action from being a
categorical exclusion if the responsible official determines — without preparing an
EA — that no significant environmental effects will result from going forward with
the proposed agency action. Indeed, under the new directive, a circumstance is
“extraordinary” only if the responsible official determines it is such because the
proposed action would have significant effects and preparation of an EIS is
warranted. If the responsible official is uncertain whether the proposed action may
have a significant effect on the environment, an EA is to be prepared. However, the
official is free to conclude an action will have no significant effect, despite the
presence of circumstances such as listed species or inventoried roadless areas. Such
circumstances were previously considered (under one interpretation of the
regulations) to be extraordinary circumstances per se, but now are merely “resource
conditions” that must be considered in determining whether an action may have a
significant effect. “It is the degree of the potential effect of a proposed action on
these resource conditions that determines whether extraordinary circumstances
104 Section 404.
105 Rhodes v. Johnson, 153 F. 3d 785 (7th Cir. 1998).
106 67 Fed. Reg. 54,622 (August 23, 2002).
exist.”107 Arguably, this is a significant change from the previous guidance, in that
the judgment of the responsible official can replace an EA in determining whether
a proposed action in an area with sensitive conditions may have a significant effect
on the environment.
In support of the proposed changes on extraordinary circumstances, the
explanatory material asserts that there is a split in the decisions of the circuits on the
effects of the presence of extraordinary circumstances. The Ninth Circuit has held
that an agency may issue a categorical exclusion even where a certain resource
condition, such as the presence of threatened or endangered species, is found.108
However, the case cited for this proposition involved a salvage sale under § 2001 of
the Emergency Supplemental Appropriations and Rescission Act,109 a statute that
addressed a particular situation, provided the Secretary with very broad discretion to
determine the adequacy of any environmental reviews, and set out a very narrow
scope of judicial review of environmental decisions. In contrast, the Seventh Circuit
concluded that conducting an internal agency review to determine whether an agency
action proposed in an area with one or more extraordinary circumstances could have
a significant impact on the environment was not permitted under the then-current FS
categorical exclusion provisions, and that preparation of an EA was the proper means
to make that determination.110 The court also noted that the EA process allows for
public review; the internal agency determination would not.111 The recent FS
changes now permit the internal review (rather than preparation of an EA) the court
referred to. Whether a court would find the new FS position valid under NEPA has
not been determined. Under the final FS directive on extraordinary circumstances,
some timber sales could be conducted in roadless areas (and possibly in roadless
areas with endangered or threatened species) without environmental analyses if the
official determines, without the necessity of written documentation of any underlying
analysis, that there would be no significant environmental effects.
The Healthy Forests Restoration Act of 2003
Title I of Pub. L. No. 108-148, the “Healthy Forests Restoration Act of 2003”
(HRFA), addresses hazardous fuel reduction projects. Section 104 allows hazardous
fuel reduction projects in certain areas to be conducted if an EA or EIS is prepared
under modified procedures that limit the alternatives that need be considered.
Section 104 of the bill requires either an EA or an EIS for each authorized hazardous
fuel reduction project, but the environmental evaluations usually need study only the
proposed agency action, the “no action” alternative, and possibly one other
alternative. If the project is within a specified distance of an “at-risk community,”
only the proposed agency action need be studied in the EA or EIS. However, § 107
107 FSH 1909.15 – Environmental Policy and Procedures Handbook, § 30.3b.2.
108 Southwest Center for Biological Diversity v. U.S. Forest Service, 100 F. 3d 1443, 1450
(9th Cir. 1996).
109 Pub. L. No. 104-19, 109 Stat. 194, 240-247.
110 Rhodes v. Johnson, 153 F. 3d 785, 790 (7th Cir. 1998).
111 Id., at 787.
of the new law expressly preserves the authority of the Secretary to use other
authority, including categorical exclusions, to conduct hazardous fuel reduction
projects on federal lands, and the funds appropriated to implement the new statute are
not limited to projects conducted in accordance with it. Therefore, the new statute
could fund projects conducted under the new categorical exclusions put in place
administratively by the FS.
The act includes several provisions that address public notice and participation.
Public notice of each authorized hazardous fuel reduction project must be provided
— “in accordance with applicable regulations and administrative guidelines,” which
vary and may excuse notice in some circumstances, as discussed above. The act does
not specifically exempt fire projects from ARA. Section 104(e)(2) requires a public
meeting to be conducted during the preparation of each hazardous fuel reduction
project; subsection (f) requires the Secretary to facilitate collaboration among all
interested persons and groups; subsection (g) requires the Secretary to provide an
opportunity for public comment during the preparation of any EA or EIS for a project
in accordance with applicable agency regulations and guidance [which, as discussed,
may vary]; and subsection (h) requires the Secretary to sign a decision document and
give notice of the final agency action. The new law also includes special
administrative and judicial review provisions for these projects, as discussed below.
Collaboration is directed at several points in the law; § 104(f) reads:
In order to encourage meaningful public participation during preparation of
authorized hazardous fuel reduction projects, the Secretary shall facilitate
collaboration among State and local governments and Indian tribes, and
participation of interested persons, during the preparation of each authorized fuel112
reduction project in a manner consistent with the Implementation Plan.
Instead of requiring an opportunity for public comment on the NEPA documents
prepared in accordance with that section, § 104(g) ties that opportunity for public
comment to the applicable regulations and administrative guidance, which, as
discussed above, may or may not require public comment for an EA.
Under § 103, the Secretary is to prioritize projects for both federal and non-
federal lands, after considering recommendations made by at-risk communities that
have developed community wildfire protection plans.
Section 105 requires the Secretary of Agriculture to issue an interim final rule
within 30 days of enactment to establish a pre-decisional administrative review
process for hazardous fuel reduction projects authorized by HFRA. A reasonable
time for public comment is required, leading to a permanent final rule.
112 The Plan referred to is the “Implementation Plan for the Comprehensive Strategy for a
Collaborative Approach for Reducing Wildland Fire Risks to Communities and the
Environment,” dated May, 2002. The Plan address collaboration, but does not contain many
specifics as to how collaboration will be carried out.
On January 9, 2004, an interim final rule was issued, along with a request for
comments.113 The interim rule takes hazardous fuel reduction projects out of those
projects that are subject to the notice, comment and appeal procedures of Part 215,
and establishes a separate pre-decisional objection procedure as new Part 218 of 36
C.F.R., specifically for hazardous fuel reduction projects. A modified EIS or EA
must be prepared for fuels projects under the HFRA, and new 36 C.F.R. § 218.4
requires that a final EIS or EA be mailed to those who previously requested to be on
the project mailing list or are known to have submitted specific written comments
related to the proposed project during the opportunity for public comment provided.
Section 218.6(a) clarifies that for projects described in an EA, “such opportunity for
public comment will be fulfilled during scoping or other public involvement
opportunities as environmental assessments are not circulated for public comment
in draft form.” Thereafter, notice of an opportunity to object is to be published, and
procedures are set out that govern how objections are to be submitted and considered.
The reviewing officer is to provide a written response, but objections may be
consolidated for this purpose. This response is the only administrative review of
HFRA projects.
36 C.F.R. § 218.12 preserves any other authority of the Secretary of Agriculture
to protect, manage, or administer National Forest System lands, and provides that
authorized hazardous fuel reduction projects proposed by the Secretary of Agriculture
or the Under Secretary, Natural Resources and Environment, are not subject to the
procedures set out in Part 218, but rather is the final decision of the Department and
may be reviewed by the courts. Section 218.13 asserts that any filing for judicial
review is premature and inappropriate unless the plaintiff has submitted specific
written comments relating to the proposed action and the plaintiff has challenged the
project under the Part 218 review process. Judicial review of projects subject to Part
218 “is strictly limited to those issues raised by the plaintiff’s submission during the
objection process, except in exceptional circumstances such as where significant new
information bearing on a specific claim only becomes available after conclusion of
the administrative review.”
Section 105 requires, with some exceptions, exhaustion of administrative review
before filing a civil action in a federal district court. Section 106 urges the federal
district courts to expedite, to the maximum extent practicable, challenges to
hazardous fuel reduction projects. That section also limits judicial review by limiting
injunctive relief and stays pending appeal to 60 days, but these may be renewed. The
act also directs the courts when considering any request for an injunction of an
authorized hazardous fuel reduction project, to balance likely short- and long-term
impacts to the ecosystem from undertaking an agency action against the short- and
long-term effects of not undertaking the action.
Title IV of the HFRA addresses silvicultural assessments to respond to insect
infestations and includes new categorical exclusions which could permit timber
harvests and other measures on not more than 250,000 acres, as discussed under that
heading above.
113 69 Fed. Reg. 1,529.
Counterpart Regulations
Pursuant to 50 C.F.R. §402.04, joint “counterpart” regulations were finalized
by FS, BLM, the National Park Service, Bureau of Indian Affairs, FWS and NOAA
Fisheries on December 8, 2003114 to streamline the consultations required under § 7
of the Endangered Species Act. Normally, a federal agency prepares a biological
assessment and then must consult with either the Fish and Wildlife Service (FWS)
or NOAA Fisheries, as appropriate, regarding proposed agency actions that might
affect a species listed as endangered or threatened under the ESA, or its critical
habitat. The new regulations would allow the FS, BLM and the other participating
land management agencies themselves to determine that a proposed federal action
implementing the National Fire Plan115 is not likely to adversely affect species listed
under that act. Prescribed fire, mechanical fuels treatments, emergency stabilization,
burned area rehabilitation, road maintenance and operation activities, and ecosystem
restoration are among the activities or projects that would be covered by the new
procedure.
There is no indication in the materials published with the final regulations, or
in the “Alternative Consultation Agreement” of whether an agency’s “not likely to
adversely affect” determination may be appealed administratively or be judicially
reviewed, but arguably it would not be. Section 215.12 of the new FS appeal
regulations states that preliminary findings made during planning and/or analysis
processes on a project or activity are not appealable unless they result in a decision
document. As will be discussed in the BLM section, in the grazing regulations
proposed by BLM, new 43 C.F.R. §4160.1(d) would state that a biological
assessment or biological evaluation prepared for purposes of an Endangered Species
Act consultation or conference is not a decision for purposes of protest or appeal.
Arguably, if this provision is finalized, it could apply to biological evaluations done
pursuant to the counterpart regulations as well. If agency “not likely to affect”
determinations are not appealable, only judicial review would be available for review
of these agency decisions. Arguably, this could result in a lessening of the public’s
current opportunity to seek review of similar determinations when they are made by
the FWS or NOAA Fisheries.
Counterpart regulations have not been promulgated in the past and their validity
has not yet been tested in the courts. A recent FS memorandum indicates that the
agency may expand use of the counterpart concept to “all land management
activities.” In response to the four threats of fire, invasive species, un-managed
recreation and loss of open space, the FS is considering expanding use of the self-
certification concept of the counterpart regulations, categorical exclusions, and other
processes to expedite many management processes.116 Depending on how and to
114 68 Fed. Reg. 68,254.
115 The National Fire Plan is defined in 50 C.F.R. § 402.30 as the September 8, 2000 report
to the President from DOI and DOA entitled “Managing the Impact of Wildfire on
Communities and the Environment” outlining a new approach to managing fires.
116 Balancing Our Approach – Process Improvements Related to the Four Threats,
(continued...)
what extent this goal is accomplished and whether the decisions are appealable,
public participation could also be curtailed.
Bureau of Land Management
The relevant statutes and recent administrative actions affecting public
participation also are discussed in this section of the report. Instances where BLM
actions are the same as those discussed above with respect to the FS are noted.
Federal Land Policy and Management Act
In 1976, the Federal Land Policy and Management Act (FLPMA) consolidated
and modernized the statutory authority for the management of BLM lands, and
established policies to guide that management. Express FLPMA policies require
public involvement in the development of land management regulations, and also
require the establishment of administrative adjudicatory processes and judicial
review:
The Congress declares that it is the policy of the United States that –
(5) in administering public land statutes and exercising discretionary authority
granted by them, the Secretary be required to establish comprehensive rules and
regulations after considering the views of the general public; and to structure
adjudication procedures to assure adequate third party participation, objective
administrative review of initial decisions, and expeditious decisionmaking;
(6) judicial review of public land adjudication decisions be provided by law;117
....
These policies are implemented through several FLPMA provisions that direct
that the general public be involved in the development of rules and regulations, land
use plans and land programs; be allowed to comment on the formulation of standards
and criteria; and be given an opportunity to participate in both the preparation and
execution of plans and programs for the management of the public lands, and in land
management activities and decisions. FLPMA both establishes the policy of public
involvement and repeatedly states how extensive that involvement must be.
FLPMA required land inventory and planning processes and required public
involvement in planning and in decision making in general. “Public involvement”
is defined in FLPMA as:
the opportunity for participation by affected citizens in rulemaking,
decisionmaking, and planning with respect to the public lands, including public
116 (...continued)
Intermountain Region Director’s Round Table Discussion with Chief Bosworth — January
117 43 U.S.C. § 1701(a).
meetings or hearings held at locations near the affected lands, or advisory
mechanisms, or such other procedures as may be necessary to provide public118
comment in a particular instance.
Public involvement is repeatedly required in the development, maintenance, and
revision of land use plans for the BLM lands,119 and the statutory language also
requires public involvement in management decision making and activities as well
as in planning.
BLM plans are to be coordinated with plans for lands in the National Forest
System and with the planning and management programs of Indian tribes.120 To the
extent consistent with the laws governing the administration of the public lands, the
Secretary of the Interior also is to coordinate the land use inventory, planning, and
management activities of the public lands with the land use planning and
management programs of other federal departments, and with agencies of the states
and local governments within which the lands are located. To the extent the
Secretary finds practical, the Secretary is to coordinate with and consider other
planning efforts and “provide for meaningful public involvement of State and local
government officials, both elected and appointed, in the development of land use
programs, land use regulations, and land use decisions for public lands, including
early public notice of proposed decisions which may have a significant impact on
non-Federal lands.” These officials may advise the Secretary on land use matters and
the land use plans of the Secretary are to be “consistent with State and local plans to
the maximum extent [the Secretary] finds consistent with Federal law and the
purposes of this Act.”121
Other activities, such as sales of lands, also must involve public participation
because they are keyed to the land use planning process,122 and general direction to
provide public involvement in planning and management programs is reiterated in
The Secretary shall allow an opportunity for public involvement and by
regulations shall establish procedures, including public hearings where
appropriate, to give Federal, State, and local governments and the public,
adequate notice and opportunity to comment upon and participate in the
formulation of plans and programs relating to the management of the public
lands.
In exercising his authorities under this Act, the Secretary, by regulation, shall
establish procedures, including public hearings where appropriate, to give the
federal, State, and local governments and the public adequate notice and an
118 43 U.S.C. § 1702(e).
119 43 U.S.C. § 1712(a).
120 43 U.S.C. § 1712(b).
121 43 U.S.C. § 1712(c)(9).
122 43 U.S.C. § 1713(a). See also 43 U.S.C. § 1720 for additional state notice and
coordination requirements when lands might be sold or otherwise conveyed and § 1721
regarding special conveyances to states.
opportunity to comment upon the formulation of standards and criteria for, and
to participate in, the preparation and execution of plans and programs for, and the
management of, the public lands.
FLPMA also authorizes advisory councils, whose members are to be
representative of the various major citizens’ interests concerning issues relating to
land use planning or the management of the public lands in the area for which an123
advisory council is established.
BLM Regulations
The FLPMA requirements are integrated with NEPA processes through
regulations that provide for public participation in the environmental reviews that
may accompany plans and management decisions. As was true with respect to the
FS, and despite the fact that FLPMA has more requirements for public involvement
in decision making than does the NFMA, there are more specific agency
requirements for public involvement related to plans, and plan revisions and
amendments than for project decisions. 43 C.F.R. § 1610.2 requires that the public
be provided opportunities to “meaningfully participate in and comment on the
preparation of plans, amendments and related guidance and be given early notice of
planning activities.” Advance notice of preparation of amendments or revisions of
plans must be published in the Federal Register and in appropriate media. At least
Any notice requesting written comments shall provide for at least 30 calendar days
for response. Other time periods are specified for review of draft plans and
environmental impact statements. Additional requirements are stated very generally,
with discretion allowed as to the details. For example, public notice and opportunity
for participation in resource management plan preparation “shall be appropriate to
the areas and people involved,” and shall be provided at points in the planning
process that are set out in the regulation. Federal planning efforts are to be
coordinated with other federal agencies, state and local governments and Indian
tribes, who are to be given opportunities for review, advice, and suggestions.124
Resource management guidance is to be consistent with plans and with the
policies and programs of other federal agencies, state and local governments and
Indian tribes so long as consistency with federal laws and regulation is maintained.125
There is considerable detail provided as to notice and coordination with state and
local governments.
Plans may be revised and revisions shall comply with all the requirements of the
regulations for approving an original plan.126 Plan amendments may be accompanied
by an EIS or EA, public involvement as prescribed in 43 C.F.R. § 1610.2, and with
123 43 U.S.C. § 1739(a).
124 43 C.F.R. § 1610.3-1.
125 43 C.F.R. § 1610.3-2.
126 43 C.F.R. § 1610.5-6.
interagency coordination and consistency determinations.127 If an EA shows there is
no significant impact likely to result from the amendment, the District Manager can
recommend the amendment to the State Director for approval, and upon approval, the
District Manager issues a public notice of the action taken on the amendment. If the
amendment is approved, it may be implemented 30 days after that notice. If the EA
indicates that an EIS is necessary, then the amendment process follows the same
route as preparation and approval of the plan, but consideration is limited to only the
portion of the plan being considered for amendment.
Plans, revisions, and amendments may be “protested” before they are finalized,
and issues raised in a protest must be addressed before a plan (or relevant part of a
plan) may be approved.128 Further recourse is then to the courts; there is no
administrative appeal of plans.
BLM – NEPA and Counterpart Procedures
Many of the issues discussed above in connection with the NEPA processes of
the FS also apply to BLM.
There is NEPA guidance at both the Department of the Interior level and at the
BLM agency level. The departmental NEPA guidance at Part 516 of the
Departmental Manual (DM) was recently modified in several respects, and in the
future the revised NEPA guidance of particular agencies will be published as
chapters in the Departmental Manual.129 According to the departmental NEPA
materials, an update of the BLM chapter is currently being prepared.130 516 DM 4
identifies circumstances in which an EIS will normally be prepared; individual
agency chapters are supposed to begin with provisions on when an EA or EIS is
required, and also set out the categorical exclusions of each agency. Bureaus and
Offices are to develop and implement procedures to ensure the fullest practicable
provision of timely public information and understanding of their programs. These
procedures are to include public involvement in the development of NEPA analyses
and documents, and include, wherever appropriate, provision for public meetings in
order to obtain the views of interested parties, newsletters, and status reports of
NEPA compliance activities, and the coordination and collaboration with state and
local agencies and tribal governments in developing and using similar procedures for
informing the public.131 The public is to be involved as early as possible, and NEPA
procedures are intended to achieve early consensus on the scope of NEPA
compliance. “Consensus-based management, as described in 516 DM 1.5(A)(1),
127 43 C.F.R. § 1610.5-5.
128 43 C.F.R. § 1610.5-1.
129 69 Fed. Reg. 10,866 (March 8, 2004) The Departmental Manual is available at
[http://elips.doi.gov/]. (Visited 5/28/04.) The materials state that a website compares the
new NEPA guidance to previous guidance and sets out supplemental directives at
[http://www.doi.gov/oepc]. (CRS’s search of the website on 6/16/04 for “NEPA guidance”
did not, however, locate such a comparison.)
130 Id., at 10,867.
131 Id., at 10,875.
should be used, as appropriate to facilitate this process, and should include the
consideration of any publicly developed alternatives. However, the use of consensus-
based management may be restricted or ended based on applicable statutory,
regulatory, or policy requirements.”132
The NEPA provisions in the Departmental Manual are relevant to public
participation in that there are fewest opportunities for public participation with
respect to actions taken as categorical exclusions. 516 DM 3 identifies circumstances
in which an EA will normally be required; 516 DM 3.3 states that the public must be
provided notice of the availability of EAs. Public comment is not required, but
“where appropriate” the public is to be involved and public comments considered.
This position is repeated in the BLM/NEPA handbook at 1790.1-4 B4.133 516 DM
2.6 states that the scoping process “should” be used to integrate planning activities
for separate projects that may have similar or cumulative impacts.134 This appears
to make scoping discretionary in the context of an EA.
BLM also is a party to the joint FS/BLM categorical exclusions for fuels
reduction and rehabilitation projects and activities. These exclusions are especially
relevant to the management of the significant timber resources by BLM in Oregon
and northern California, but also apply to projects on the rangelands. In addition,
there are DOI departmental categorical exclusions and BLM-wide categorical
exclusions. As discussed in connection with the FS, to the extent activities are
conducted as categorical exclusions, there are no formal environmental documents
for the public to review, and notice and comment are not required.
Appendix 1 of the Interior Departmental Manual lists departmental categorical
exclusions, many of which relate to administrative and personnel matters. Exclusion
1.9 is for policies, directives, regulations and guidelines that are of an administrative
nature and whose environmental effects are too broad, speculative, or conjectural to
lend themselves to meaningful analysis and will later be subject to the NEPA
process, either collectively or case-by-case. Section 1.11 excludes the joint
hazardous fuels reduction activities agreed to with the FS, and § 1.12 excludes the
post-fire rehabilitation activities. These categorical exclusions are recent changes.
Whether an EA must be prepared when evaluating the presence of extraordinary
circumstances in a situation that otherwise would be a categorical exclusion is
another important factor that bears directly on the extent of public participation
available. The position of BLM on extraordinary circumstances appears to parallel
the new position of the FS in that agency personnel will make crucial determinations
on environmental effects without preparation of an EA. The explanatory materials
accompanying the departmental changes refer to the CEQ regulations on
extraordinary circumstances as those in which a normally excluded action may have
a significant environmental effect – thus requiring additional analysis and action –
and then state: “[a]ny action that is normally categorically excluded must be
132 Id., at 10,876.
133 See [http://www.ca.blm.gov/caso/h1790-1.html], (visited 6/3/2004).
134 Id., at 10,877.
subjected to sufficient environmental review to determine whether it meets any of the
extraordinary circumstances, in which case, further analysis and environmental
documents must be prepared for the action. Bureaus are reminded and encouraged
to work within existing administrative frameworks, including any existing
programmatic agreements, when deciding how to apply any of the appendix 2
extraordinary circumstances.”135
Appendix 2 of the Interior Departmental Manual addresses extraordinary
circumstances and states that they are circumstances which may have significant
impacts on natural resources, ESA-listed species, etc. As was true of the FS, the
DOI approach does not list circumstances that trigger a need to prepare an EA, but
rather appears to call for the action officers to decide whether the proposed action in
particular circumstances may have a significant effect — a function intended to be
fulfilled by the preparation of an EA. Many of the paragraphs in Appendix 2 take a
similar stance — an extraordinary circumstance only exists if the acting official
concludes, without preparation of an EA, that the action may have a significant
effect. Yet 516 DM 3.2A states that the purpose of an EA is to allow the responsible
official to determine whether to prepare an EIS (i.e. the EA indicates whether a
proposed action may have a significant effect), or to otherwise assist in planning and
decision making. (Emphasis added.) Similarly, 516 DM 7.4B states that EAs “are
prepared either to provide information in order to make a finding that there are no
significant impacts or that an EIS should be prepared.” (Emphasis added.) This is
the function of an EA under the CEQ regulations. Previously, the section on
categorical exclusions contained a list of circumstances that required an EA to be
prepared to determine the likelihood of significant effects.
The new final DOI appeals regulations include a brief description of the
environmental review that is completed for a categorical exclusion:
A categorical exclusion does not exempt an agency action from environmental
review. Rather, it requires the agency to scrutinize the proposed action to see
whether it meets the criteria for categorical exclusion, that is, whether it is the
type of action that the agency has decided, through its procedures adopted under
40 CFR 1507.3 of the regulations of the Council on Environmental Quality, does
not individually or cumulatively have a significant effect on the human
environment. In practice, this will normally be done through a documented136
checklist of criteria.
BLM is a party to the counterpart regulations discussed above, and the same
points on possible limitations of public participation in connection with those
determinations pertain. In the grazing regulations proposed by BLM, new 43 C.F.R.
§4160.1(d) would state that a biological assessment or biological evaluation prepared
for purposes of an Endangered Species Act consultation or conference is not a
decision for purposes of protest or appeal. Arguably, if this provision is finalized,
it would probably apply to biological evaluations done pursuant to the counterpart
regulations as well. If so, it appears that the only public recourse would be judicial
135 Id. (emphasis added).
136 68 Fed. Reg. 33,799-33,800 (June 5, 2003).
review. We have no information as to whether BLM will seek to expand the self
certification process of the counterpart regulations to other planning and management
activities in the same way as the FS is considering.
Proposed Grazing Regulations
Other recent BLM actions also could affect public participation. On December
8, 2003, BLM proposed amendments to the grazing regulations.137 One proposal is
to reduce the instances in which BLM is required to solicit public comment on
pending grazing management decisions on the grounds that public participation
processes were consuming too much scarce staff time.138 The explanatory materials
state that BLM proposes retaining the requirement that BLM provide the interested
public with copies of proposed and final grazing decisions and allowing them
respectively to protest and appeal them. BLM also proposes retaining consultation
with the interested public for: (1) apportioning additional forage on BLM managed
lands; (2) developing or modifying a grazing activity plan and other BLM land use
plans; (3) planning a range development or improvement program; and (4) reviewing
and commenting on grazing management evaluation reports. BLM proposes
eliminating requiring public consultation on: (1) adjusting allotment boundaries; (2)
changing grazing preference; (3) issuing emergency closures; (4) renewing or issuing
a grazing permit or lease; (5) modifying permits and leases; or (6) issuing temporary
and non-renewable grazing permits. Arguably, many of these topics for which public
consultation would be eliminated could be important to the condition of the
rangelands and their ability to serve non-grazing multiple uses. BLM also may
consult with permittees and lessees, state and local officials and the interested public
on other matters if the authorized officer finds consultation would facilitate
management of grazing on the public lands.
At several points, the proposed grazing regulations appear to give permittees
and grazing operators a greater role in management decisions than other segments of
the public. As discussed above, consultations are conducted with the permittees and
operators and with the state and local officials, but the public will be consulted only
with respect to certain topics.139 The materials explain that the public will be
consulted
where such input would be of the greatest value, such as when deciding
vegetation management objectives in an allotment management plan, or
preparing reports evaluating range conditions. BLM in cooperation with the
grazing operator, would retain the discretion to determine and implement the
most appropriate on-the-ground management actions. BLM values productive
consultation with the interested public. However, BLM needs some flexibility
137 68 Fed. Reg. 68,454. See Carol Hardy-Vincent, CRS Report No. CRS Report RL32244,
Grazing Regulations and Policies: Changes by the Bureau of Land Management.
138 Id., at 68,454.
139 Id.
in order to take responsive, timely, and efficient management action without140
being required to first undertake mandatory consultation.
In addition, the proposed regulations would add to 43 C.F.R. § 4120.5-2 (on
cooperation) to provide that BLM “shall cooperate” with state, local, or county-
established grazing boards in reviewing range improvements and allotment
management plans on public lands. Federal grazing advisory boards authorized by
FLPMA expired under that act on December 31, 1985, and have not been reinstated.
The consultations with the non-federal grazing-focused boards mentioned in the
proposed regulations would be in addition to interactions with the federally
constituted Resource Advisory Councils, which are required to have balanced141
membership.
Proposed Grazing Appeals
The proposed grazing regulations would clarify how appeals of BLM grazing
decisions and petitions for stays of decisions pending appeal would affect the timing
of implementation of a grazing-related decision and the continuity of ongoing grazing
operations. As discussed in the explanatory materials, basically if an agency decision
can be and is stayed, an appellant must exhaust administrative remedies before going
to court; if a decision or action is effective immediately and not stayed, a claimant
may proceed to court. In developing the proposed regulations, BLM asserts that it
balanced its duties under various statutes by allowing grazing to continue under
existing permit terms and conditions if a decision changing those terms and
conditions is stayed. The agency asserts that this outcome is valid under the APA (5
U.S.C. § 558), which requires that “a license with reference to an activity of a
continuing nature” does not expire until an agency makes a new determination.142 In
instances where there is not an existing permit, BLM would allow grazing in
accordance with a decision, even in the case of a stay, if the decision favored grazing
in several enumerated circumstances, and affected parties could proceed to court
without exhausting administrative remedies. Under current and proposed
regulations, the authorized officer may provide that a grazing decision is effective
upon issuance unless a stay is granted by the Office of Hearing and Appeals. In sum,
it appears that under the current and proposed rules, existing grazing usually would
be allowed to continue and anyone challenging a change decision could be required
to pursue more expensive judicial appeals, which could reduce the number of
appeals.
General DOI Appeals
On June 5, 2003, the Office of Hearings and Appeals of the Department of the
Interior finalized changes to its appeals rules in several respects that affect public
140 Id.
141 43 C.F.R. § 1784.
142 Id.
participation issues.143 Under the new regulations, restrictive decisions of the Interior
Board of Land Appeals (IBLA) on certain definitions and on standing to appeal were
“codified” in the regulations as new 43 C.F.R. § 4.410.
A new provision at 43 C.F.R. § 4190.l and a change at § 5003.1 would make
BLM wildfire management decisions affecting rangelands and forests effective
immediately when issued, a position that complicates administrative appeals. The
appeals changes received many comments when proposed. Those in favor of the
proposed rules emphasized the protective nature of the actions and that “the faster
BLM is able to take action to reduce future threats of wildland fires, the more likely
BLM can safeguard public and firefighter health and safety, protect property, and
improve environmental baseline conditions in the wildland-urban interface and other
priority areas.”144 Other comments objected to the regulation, asserting that the rule
change would undermine the value of public comment by allowing citizen concerns
to be effectively ignored, further eroding the trust citizens have in public land
management agency decisions. Comments further asserted that (1) the proposed rule
would allow a project to begin before a decision is made on the appeal, effectively
discounting public opinion; (2) a decision on appeal to reject a proposed project has
less effect if the project has already commenced and any negative effects of the action
have already occurred; (3) the public is less likely to participate in the decision
making process when it can have no real or immediate effect on a proposed project;
and (4) such a policy “contradicts the spirit of FLPMA which encourages public
comment on proposed actions and participation in the appeal process for a
management decision.”145
In response, DOI stated that “[t]he appeal process is not part of the public
participation required by Section 309(e) of FLPMA.” This approach contrasts to the
position taken by the Forest Service that appeals are a part of public participation, but
are redundant if pre-decisional input is available. DOI also asserted that making fire
management decisions effective immediately actually “encourages public
participation by making it more essential at the project design/environmental review
state. It is at this stage that BLM gathers evidence and public input upon which to
base its fire management plans/projects and decisions.”146 Some comments pointed
out that there was existing authority to make decisions effective immediately on a
case-by-case basis, but BLM responded that it “views its ability to carry out fire
management practices as a matter of great urgency” and that “these fire management
decisions need to be effective immediately.”147 Wildfire management decisions are
also expedited before the IBLA under new § 4.416, such that a decision is to be
rendered by that Board within 60 days after all pleadings have been filed, and within
143 68 Fed. Reg. 33,794.
144 Id., at 33,795.
145 Id., at 33,796.
146 Id.
147 Id.
There is precedent for these changes in the DOI regulation at 43 C.F.R. §
4160.3(f), which allows BLM to place certain protective grazing decisions into effect
immediately or on a date certain. A decision that is put into effect immediately could
still be appealed to the IBLA and a petition for a stay filed under 43 C.F.R. § 4.21(b).
(The action being appealed could be ‘stayed’ from going into effect for the time the
stay is in place.)
Several aspects of stays and effectiveness of decisions can present issues as to
when judicial review is available. The Supreme Court in Darby v. Cisneros148 held
that when judicial review is sought under the APA (and most cases would be brought
under the APA), a plaintiff can file in court once an agency decision is final, unless
further administrative review is required by the agency’s regulations and those
regulations also provide that the decision for which review is sought is made
inoperative during the time of review. If a hazardous fuels management project
decision is made effective immediately and the decision is not automatically made
inoperative during the time appeals, if any, are taken,149 it appears that judicial review
of such a decision would be available. Similarly, if a stay is sought before the IBLA
and denied, an injunction could be sought at the judicial level, although part of the
project in question could be underway. 43 C.F.R. § 4.21(c) states:
No decision which at the time of its rendition is subject to appeal to the Director
or an Appeals Board shall be considered final so as to be agency action subject
to judicial review under 5 U.S.C. 704, unless a petition for a stay of decision has
been timely filed and the decision being appealed has been made effective in the
manner provided in paragraphs (a)(3) or (b)(4) of this section [which provide that
the Director or an appeals board may deny or partially deny a petition for a stay
within a specified time] or a decision has been made effective pending appeal
pursuant to paragraph (a)(1) of this section [which provides that a decision not
normally effective immediately can be made so by the Director or an appeals
board] or pursuant to other pertinent regulation.
Conclusion
The principal statutes governing the federal lands administered by the FS and
BLM establish a policy of public participation in land and resource management
planning and decision making. Public participation requirements at both the statutory
and regulatory levels are most clear with respect to larger-scale decisions, such as the
development and revision of plans themselves, rather than with respect to projects
and activities implementing plans. However, FLPMA contains several requirements
for public participation in decision making and management activities. In addition,
148 509 U.S. 137 (1993).
149 On this point, see Natural Desert Association v. Green, 953 F. Supp. 1133, 1141-1142
(D. Or. 1997), which found the agency stay provisions did not render agency decisions
inoperative because they vested discretion in the agency to stay the decision pending appeal.th
Idaho Watersheds Project v. Bureau of Land Management, 307 F. 3d 815 (9 Cir. 2002)
examined exhaustion of administrative appeal issues in the context of BLM grazing permits
and declined to rule on whether the regulations on stays per se failed to render agency
decisions inoperative because the court found that in the grazing context decisions were not
rendered inoperative as a factual matter.
the Appeals Reform Act, related to the FS, requires that the public receive notice and
have an opportunity to comment on projects and activities implementing FS plans.
Despite the broad language of ARA, FS implementing regulations exempt many
projects and activities, such as those conducted as categorical exclusions, from the
notice and comment provisions. This has been true since ARA was enacted, but
recent expansion of the number and scope of categorical exclusions makes the
elimination of public participation in connection with them more significant.
Both the FS and BLM have recently made or proposed administrative changes
to their planning, NEPA, and appeal processes that also affect public participation.
The FS has seen a succession of changes to its planning regulations and has expanded
management direction in agency documents below the level of regulations — through
agency manual and handbook materials and possibly down to the level of agency
“white papers” — a system that makes it difficult for a member of the public to
compile and integrate the relevant management information in order to participate
effectively.
In the past, both agencies relied heavily on NEPA processes to provide public
participation. Requirements for preparation of NEPA documents (especially EISs),
with associated requirements for public participation, are most clear in connection
with agency plans. Despite statutory direction to incorporate public participation into
agency decision making as well as planning (especially with respect to BLM), there
are fewer specific requirements in agency regulations to do so, and broader discretion
as to how public involvement may be provided.
In addition, there has been a significant expansion in the use of categorical
exclusions by both agencies, and a narrowing of the extent to which the presence of
extraordinary circumstances may remove a proposed action from being a categorical
exclusion. Although some of fire-related categorically excluded projects will be
developed collaboratively, and some insect control related categorically excluded
projects are required to have public notice and comment, arguably the elimination of
many environmental studies together with their associated notice and comment
periods, the expansion of projects conducted as categorical exclusions, and the new
approach to extraordinary circumstances may significantly reduce opportunities for
public input.
Access to administrative appeals has also been reduced. In the past, the FS has
viewed appeals as a type of public participation and recently has substituted a pre-
decisional objection process for “redundant” public appeals of forest plans. The
ARA requires administrative appeals of projects and activities implementing plans,
but does not require appeals of plans themselves. In contrast, the BLM asserts that
appeals are not a form of public participation, and can be limited without violating
the letter or spirit of FLPMA. By making many decisions effective immediately —
with recourse likely to be only to the courts — both agencies have effectively skipped
administrative appeals in those instances. Because judicial review is more expensive,
this may result in fewer appeals, and hence a reduction in public review of agency
actions.
The agencies assert the need for expeditious decision making, improved
efficiency and cost reduction as reasons for some of the regulatory changes. Some
changes are the product of experience over time with the operation of certain
programs and the agencies’ judgment that streamlining is necessary for the efficient
management of the federal lands.
The extent to which the public is allowed to participate meaningfully in the
management of the federal lands managed by the FS and BLM may raise questions
of compliance with current statutory requirements. Agency actions and their effects
on public participation may raise policy issues of either legislative or oversight
interest to the Congress.