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Citing the need for speed, the Forest Service has repeatedly tried to cut the appeals process out of its decision-making process.
Federal court ruling in California covers entire country; requires agency to allow appeals on decisions made under streamlined process
By Bob Berwyn
SUMMIT COUNTY — A federal judge in California this week ruled that the U.S. Forest Service can’t simply drop a post-decision appeals process for logging, forest health and other projects approved under a categorical exclusions, which is a streamlined approval process for smaller projects. In those decisions, the appeals process is replaced with a pre-decisional objection period, which enables people to raise concerns before the final decision is made. Read the decision here (PDF on Scribd.com) or at the end of the post.
That means citizens or stakeholder groups across the country once again have the right to challenge certain Forest Service projects after the final decision has been made by a district- or forest-level official.
The agency has often used the categorical exclusion process in recent years to gain speedy approval for projects relating to the pine beetle epidemic. While many of the projects aren’t controversial, some have been.
Absent a formal administrative appeals process — which involves review by forest officials higher up the chain of command — citizens and environmental groups must go directly to court to challenge a project.
In some regions, the agency has done a good job of involving stakeholders in the process early to help shape decisions that have community support. But that’s not the case all over the country, and having the opportunity to appeal enables people to challenge bad decisions without the expense of going to court.
On the other hand, environmental groups have sometimes abused the appeals process to obstruct and delay projects. Those tactics led frustrated Forest Service officials to look for shortcuts. But fundamentally, appeals have always helped ensure that citizens have some recourse to challenge the agency when it comes to what are often irrevocable commitments of public resources.
In his decision, U.S. District Court Judge Lawrence O’Neill also ruled that the agency must give adequate notice for its decisions on categorical exclusion projects, as well as provide the public with an opportunity to comment.
The ruling, issued by a U.S. District Court in California, is a skirmish in the long-running regulatory and legal battle over the Forest Service’s desire to cut red tape, sometimes at the expense of public involvement and adequate environmental review.
The Forest Service fired the first salvo when it tried to eliminate administrative appeals altogether in an attempt to speed up approvals for projects. In response, Congress in 1992 passed the Forest Service Decision-making and Appeals Reform Act.
“Congress said, we want to ensure that you’ve heard all the voices … and that you use the appeal process to repair your mistakes,” said Forest Service Employees for Environmental Ethics director Andy Stahl, explaining that he lobbied for the appeals reform act.
That law states very clearly that the Forest Service must include an appeals process for any decision or project that implements a forest plan.
Stahl said appeals help make the Forest Service decision-making process accessible to the general public, giving citizens a chance to influence decisions without having to hire a lawyer if they think a project has some fundamental flaws. And based on the agency’s track record of losing appeals and court cases, that happens as often as not.
In the bigger picture, Congress just recently passed a law that eliminates appeals for all decisions approved under Environmental Assessments and Environmental Impact Statements, instead replacing those appeals with pre-decisional objection periods.
Filed under: Colorado, Environment, Forest health, forests, US Forest Service Tagged: | categorical exclusions, Environment, Forest health, forest service appeals, public lands, U.S. Forest Service
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[...] a district- or forest-level official…..” Read entire article and copy of decision at http://summitcountyvoice.com/2012/03/21/judge-says-forest-service-must-allow-appeals/#more-39573 Share this:FacebookEmailSharePrint This entry was posted in National Forest News and tagged [...]
Considering that the Forest Service work for the people, then it’s only right that the people have a say about any changes, regardless of what they may be. That old saying: “better to err on the side of caution, then to make a mistake.
it is hard to err when nothing ever happens anyway. the environmental groups need to relax and allow for economic equilibrium. then, collaborate with all people, make a plan, and support the forest service in getting a least one project done. once we start doing something, then we can adapt management and address the missions of all people. as of now, the only thing getting done is nothing. literally.
The article correctly states that environmental groups use the appeals process to obstruct and delay forest projects. However, this must not be regarded as an entirely poor outcome. Groups that use the right of appeal frivolously and with the sole intent of publicity and dramatization seriously damage their mission and detract from the real issue: How do we work together to manage resources for a wide range of activities?
I am active in several organizations to develop solutions to conservation and environmental issues, and due process is critical to achieving lasting and effective results. I applaud this decision by the courts, even though it allows the bad behavior of groups such as the Sierra Club, the Wilderness Society, and the Colorado Mountain Club to continue. The rule of law and open communication with the public is critical to proper resolution of issues. It will be much easier for people to decide who is abusing the process as the bad behavior by these groups continues.
Gee Mark, You advocate for several organizations, so, isn’t that in itself like that other old saying: “people who live in glass houses, shouldn’t throw rocks at others”?
Gee Norman ….. I just stated that the right to appeal is one which all sides of the issue must have access to here in the United States of America. The appeals created by organizations that I support are based on fact and prior law, and they consist of carefully detailed information and suggest realistic solutions. They are not poor quality sound bites generated for emotional appeal, and they do not exploit the system to created obstruction and delay. It is easy for anyone to judge the difference, and I applaud this decision because it outs those who do not understand the difference between civilized discourse and blatant propaganda.
Try reading the words and not just flaring up at everything and anything. I just supported the rights of your favorite radical environmentalists to free speech, and all you can come up with is glass houses? Bob Berwyn requires that we keep our discourse civil. You just made a personal attack. Your response was uncalled for, did not state an opinion, and is a shameful and juvenile response.
I agree with Mark. Play nice, everyone. Don’t be a comment troll, Norman!
Sorry fellows, but Mark did say that certain others were in the category of frivolity, didn’t he? As for being a comment troll, well, gosh, I guess that means I do that when ever I comment. Apologies to the both of you, and to any others who deem my expressions as such.
No, some of your comments are substantive and thoughtful, but others seemed designed to elicit a reaction …
It’s your blog, you can do what ever you want. I used metaphor[s], not to elicit negative or slam another, but pointing out what I got out of the comment. Mark called out the Sierra Club, the Wilderness Society, the Colorado Mountain Club as “bad behavior”, yet didn’t mention his own affiliations. He did list his after your calling me a troll. I take issue with the use of such because when I used that term once, you took issue with me over it. Now, you used it to describe what I wrote. I could say that your comment perhaps smelled of cronyism, but what would that prove? As I said, it’s your blog, you can run it which ever way you want, but if you’re going to be subjective in your criticism, then you shouldn’t give the impression of favoritism.
The editors and mediators of this blog are free to do as they please, and are judged every day in the “court” of public opinion. The use of the word “troll” in this case is not demeaning, it is entirely accurate based on its contemporary usage:
http://en.wikipedia.org/wiki/Troll_%28Internet%29
Don’t fret – in the heat of the battle it is easy to shoot innocent bystanders and combatants alike. Just read the definition, and don’t be that. A bit of criticism and editorial blocking has made me a better contributor. I most certainly have an agenda, and that is to achieve cooperation between agencies, organizations, and the public to devise solutions that benefit the entire community.
That does not mean I cannot express my opinion when someone is behaving badly. It means that I have a thick enough skin to stick to my program, change it if convinced otherwise due to new information, and welcome discussions and differing points of view. Just be prepared to back it up, because that is the point of the entire debate.
You miss the point here Mark, “I know you believe you understand what you think I said, but I’m not sure you realize that what you heard, is not what I meant. Besides, my comment was to Bob, he doesn’t need your input. I am well aware of what the word troll means, as far as the internet goes, so let’s just let this matter rest, as there is no sense continuing.
It just came across as a personal comment directed at someone rather than a comment addressing the substance of the story.
A poor choice of word to use Bob, especially in your position, as it taints what I say in the past, present, future, to someone who may not realize the content. We all know how that goes.
It is very hard to maintain an even keel on any public issue as important as conservation and environmental protection. Apology accepted, and I will try hard to follow my own advice. It is an advantage to attend and volunteer regularly with groups that tackle statewide concerns. Here is how we all want this top turn out – on a positive note!
Please consider attending or volunteering with any one of several Colorado’s leading volunteer coordination efforts. I regularly attend the Colorado Outdoor Recreation Resource Program (CORRP) meetings, and the Colorado Outdoor Stewardship Coalition is another group that encourages participation and partnership on outdoor recreation issues. Here is a link to their webpage:
http://www.stewardshipforum.blogspot.com/
There are far more powerful ways to achieve results than litigation and appeal, although it was established in Colorado 136 years ago that the right to do so was guaranteed and inviolable. That is why I support the decision of the courts while intensively disliking the use of courts to resolve these issues – it is ultimately more effective and satisfying to accomplish it together than in the ways made necessary by conflict.
But sometimes the Forest Service (and other agencies) makes blatant mistakes and the courts are the only recourse. Having some dynamic tension built into the system is a good thing. Not everything can be resolved by collaboration. As you are probably aware, there is a broader debate over collaboration, a process in which some stakeholders are sometimes co-opted. Honest, open collaboration is a good thing, but sometimes it merely hides the sore spots.
In your area of interest, off-roaders in North Carolina recently collaborated in a stakeholder process to resolve the issue of motorized use at a national seashore, and after signing off on a deal, a subset turned around and sued the Forest Service anyway.
That is one of the best comments on the gritty details of process I have ever seen. So true, our incredible freedom has its own internal set of problems; the creation of splinter groups, the erosion of the handshake-based social contract, the loss of the “a deal’s a deal” mentality just to name a few.
It is vital that these principles be returned to public issues. There is a disturbing trend to “win at any cost” and to use any means in doing so. The short-term gain achieved by these tactics are never long-term solutions. This is because only a consensus arrived at by a majority of the stakeholders can survive the change of an administration or the bias of a management authority.
It is more complex than can properly be presented in a series of comments to a blog – but this does not mean that it cannot be explored successfully in a public forum.
It suggests that communicating during review and comment periods is critical to providing decision-makers with sufficient data, and that those decision makers should be aware that if the comments are one-sided, they need to carefully consider the process and offset those who stuff the ballot box with the tools of engineering study, evaluation protocols, educational efforts, and enforcement feedback before arriving at a final decision.
Simple language: You aren’t going to get many chickens if all the eggs get broken and we don’t even try to make an omelet.