In 1992, Congress passed the Appeals Reform Act, § 322, Pub. L. No. 102-381, 106 Stat. 1419 (1992), which required the U.S. Forest Service and the Secretary of Agriculture to allow the public to help guide how logging and other projects take place on our National Forests. Congress required the Forest Service to inform the public about pending projects, let the public comment on proposed projects so that they could be improved or rejected entirely, and required the Forest Service to allow administrative appeals contesting projects before they were implemented.
The Appeals Reform Act of 1992 was adopted in response to a Forest Service proposal to do away with most administrative appeals of project decisions, such as timber sales, implementing forest plans.
The principal sponsor of the Appeals Reform Act, Georgia Senator Wyche Fowler, described the Congressional motivation for this statute as follows:
"This amendment this morning has become imperative if the American people are to reclaim some rights that they have held for 85 years -- since 1907 -- the right to appeal a timber sale decision of the Forest Service. I guess, to put it another way, a basic not only American right but democratic right with a small 'd', and that is to appeal a decision of a free Government of a free people if that decision adversely affects an individual citizen."
Important Aspects of the Appeals Process
The administrative appeal process allows citizens and organizations to participate in, and ultimately to challenge, Forest Service decisions allowing logging and other activities on our national forests. It requires the Forest Service to notify the public of proposed projects in the National Forests and allows interested parties to explain in detail to the Forest Service the flaws in its decision-making.
Montana Federal District Judge Donald Molloy aptly described the public benefits of the Forest Service appeals process in a decision issued only last year:
"The administrative appeal assures compliance with applicable standards, science, and sound analysis. . . . It is the one time when interested appellants can find out if relevant data was relied upon or ignored and it provides the agency the opportunity to flesh out conclusive statements or findings that lack the requisite close look or analysis at first blush. From the agency's perspective the administrative appeal provides an opportunity to correct mistakes or to reconcile inconsistencies, thus narrowing issues that might be subject to judicial review. . . . The agency might alter, amend, or reconsider its decision depending on the issues raised in the administrative appeal. The appeal may avoid a legal challenge or narrow the issues that can be reviewed. Ultimately its force is to allow the democratic process of participation in governmental decisions the full breadth and scope to which citizens are entitled in a participatory democracy." (The Wilderness Society v. Rey, 180 F. Supp. 2d 1141, 1149 (D. Mont. 2002)).
Only persons who have been involved with the project or plan have a right to appeal. They must be a person who was involved in the public comment process by submitting written or oral comments, or otherwise notifying the Forest Service of their interest in the proposed action.
The Appeals Reform Act provides that the Forest Service must dispose of all appeals within 45 days, and may implement appealed projects 15 days later.
Limiting the public's right to participate in, and ultimately to appeal, Forest Service decisions is not necessary to reduce fire danger in the National Forests. A May 2003 study by the General Accounting Office found that fully 76 percent of all Forest Service fuel reduction projects proposed in Fiscal Years 2001 and 2002 went forward without appeal. Of those that were appealed, 79 percent of the appeals were resolved by the Forest Service within 90 days. In total, 95 percent of all fuel reduction projects went forward within 90 days. Thus, public appeal rights have not significantly interfered with or delayed Forest Service fuel reduction projects.
The Appeals Reform Act expressly allows the Chief of the Forest Service to ensure that truly needed projects go forward despite pending appeals by declaring "that an emergency situation exists." If the Chief makes such a declaration, then the Forest Service may implement emergency projects immediately even if they are appealed by the public.
Without administrative appeals, all final project and planning decisions are foisted upon the federal judiciary to decide the merits of the final decision.