If just the mention of administrative appeals puts you to sleep, you’re not alone.
Appeals, a tool by which citizens can question management decisions made on public lands, can be a dry subject that seems to have more to do with legal maneuvering than with forest management. Most people don’t give the right to appeal a second thought; it’s a technical and bureaucratic process that means little to the average citizen.
But for the thousands of people who have used the system, appeals are an effective way to make their voices be heard by federal land managers. The legal requirement to seek public input in land management decisions, such as timber sales and road building, ensures that a system of checks and balances guides the management of public lands. It isn’t an easy or streamlined process, but as the public agency in charge of 191 million acres of national forests and grasslands, the U.S. Forest Service has a mandate to include stakeholders in its decision making process.
Not everyone thinks that seeking input about land management decisions is necessary, or even a worthwhile effort. The current administration, sprinkled with former timber industry insiders, is pushing to streamline decision making, which Forest Service Chief Dale Bosworth famously referred to as “analysis paralysis” in 2002. Appeals are an obvious target. Though they are used by private citizens and a wide variety of nonprofit and industry groups, those who would like to abolish them often characterize the appeals process as a cumbersome mechanism that invites abuse by environmental groups trying to thwart sound forest management.
The latest attempt to curtail appeals is a bill introduced in the House last fall by Republican Representatives Richard Pombo of California and Robert Goodlatte of Virginia. HR 4091 would bar citizens’ appeals in the case of logging decisions. At press time the bill was under consideration, but even if it fails, it is not likely to be the last volley in the effort to keep citizens’ voices out of the forest management decision making process.
“I think this is incrementally an attempt to curb the power of groups that the agency and the administration and the Republican Congress [feel] have challenged what they want to do,” says Hanna J. Cortner, co-author with Jacqueline Vaughn of George W. Bush’s Healthy Forests: Reframing the Environmental Debate (see Pulp, this issue).
In their book, Cortner and Vaughn trace the evolution of appeals, which have been used by the Forest Service in some form or another since its inception. Prior to the 1960s, appeals were used sparingly, mainly restricted to those who had business dealings with the agency. The passage of the National Environmental Protection Act in 1969 expanded requirements to include the public’s input into agency decisions, and this paralleled a renewed interest in environmental issues following the first Earth Dayin 1970.
Cortner says that the increase in appeals coincided with the Forest Service’s widespread practice of clear-cutting in the 1970s. The agency, steeped in its “culture of expertise,” claimed that clear-cutting was good land management. It was hard to convince the public, which only saw huge swaths of forests reduced to rubble by logging, that this was best for the forest, and environmental groups and individuals started using the processes already in place to voice their objections.
Floyd Wood, a third-generation Montanan, has filed dozens of appeals over the years. Wood says that he first sought remedy when he began to see his favorite hunting areas logged. In the old days, he says, the Forest Service did not practice clear-cutting, instead taking trees out selectively and leaving cover for elk, but when the demands for timber and the subsequent increase in Forest Service timber yields ramped up in the 1970s, clear-cutting became the norm.
Though Wood is often at odds with the Forest Service these days, he remembers when questioning their practices wasn’t so unwelcome. The first time he heard of the appeals process was when he and his brother noticed that a road was being built into an area that they considered prime elk hunting ground.
“That really shook up my older brother and he called up the supervisor at that time,” Wood says. “He really read him the riot act. So [the supervisor] says, ‘Why don’t you appeal it?’ and my brother says, ‘I don’t know how the hell you appeal it.’ He says, ‘I’ll show you.’ So my brother went in there and he showed him how to appeal it. At that time he had seven miles of road punched in there and he was headed for another seven. So my brother appealed it, and [the supervisor] stopped building roads.”
In subsequent decades, challenges to Forest Service land management decisions increased, and often weren’t nearly as welcome as they may have been in Wood’s first case. There was a widespread perception in the agency that appeals slowed down projects and had an adverse economic effect on local communities and others dependent on timber sales.
In 1992, after several exhausting decades spent defending clear-cutting practices and fending off environmental groups, the Forest Service, with the support of the first President Bush, proposed to do away with most administrative appeals. In response, Congress enacted the Appeals Reform Act, which put into law three simple steps: For each project that implements a forest plan, the Forest Service must notify the public in advance, accept public comments, and allow those who commented to appeal the final decision to a superior official.
At the time, the principal sponsor of the Appeals Reform Act, Georgia Senator Wyche Fowler, described the congressional motivation for the statute this way:
“This amendment this morning has become imperative if the American people are to reclaim some rights that they have held for eighty-five 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.”
The Forest Service adopted a set of regulations to implement the Appeals Act. These rules required that all logging projects be subject to the Act’s notice, comment and appeal procedures.
In 2003, the Forest Service amended the rules by excluding most of its logging projects from the appeals process, which was the outcome it had originally sought in 1992 and that Congress prevented by passing the Appeals Reform Act.
After five environmental groups sued the agency, the 2003 amendments were struck down in 2005 by a federal judge who ruled that excluding logging projects from appeals imposed a “drastic limitation” that Congress had not intended. But the appeals battle is far from over. There are still many government and industry groups trying to either eliminate or drastically curtail the appeals process.
Tom Partin, president of the American Forest Resource Council, doesn’t believe the current legislation will pass, because Congress is not ready to shut people out of forest decisions. He does favor appeal changes, though. He says appeals are frustrating to the industry group, which represents the forest products industry and whose mission is to “ensure a reliable timber supply from public and private lands,” among other things. “I think having it so broad, with the ability of people just to file an appeal based on a thirty-nine-cent stamp and a letter that they send in is wrong,” he says. He suggests that groups and individuals who want to file appeals be required to post sizable bonds if the results of challenging projects would be to delay them for others who have an economic interest.
Partin’s group was one of the first to file an appeal on the Biscuit Fire salvage proposal—a proposal that would soon become the most contentious forest issue since the spotted owl. Partin says American Forest doesn’t usually appeal Forest Service decisions, preferring to back the agency’s reasoning, but in this case they didn’t think the agency was doing an adequate job on reforestation. He said if appeals had not been an option, they would have sought other remedies.
“We would have gone to our legislators and said ‘Can’t we change these rules, making sure we have reforestation following a catastrophic event?’” he says.
Groups like American Forest have the muscle to lobby the legislature when they disagree with land management decisions, but according to a 2003 study done by Cortner and two colleagues from the Ecological Restoration Institute in Arizona, private citizens filed 35 percent of the appeals during their study period, which ran from 1997 to 2002.
Cortner’s appeals database offers a reality check to the notion that appeals are misused and have contributed to “analysis paralysis.” She says the motivation for the appeals research came out of community-based forest restoration meetings.
“A lot of people were complaining about the appeals process and the fact that it was delaying forest restoration projects, and there was frustration there,” she says. Cortner looked for data to back that up and found none. “The agency didn’t have the data; they were making claims that got repeated as if there were data to back it up.” The report details who is filing appeals and how long they take to resolve.
The report, “Analyzing USDA Forest Service Appeals,” shows that nationwide, individuals filed the most appeals—1,277 during the study period—followed closely by environmental groups, then a smattering of sports and industry groups. During that period, the Forest Service processed more than 3,500 appeals. Approximately 20 percent never reached the review stage because the decisions were withdrawn by the Forest Service, resolved, or granted. Of the 2,694 appeals that were reviewed, almost 75 percent were denied and just over 10 percent were granted. The remainder were partially granted, or granted with conditions (see “How the Numbers Stack Up,” page 34).
That’s a lot of numbers, but the bottom line is that there’s no easy way to generalize either who is filing appeals or how they are delaying projects. A May 2003 study by the General Accounting Office found that more than three-quarters of the fuel reduction projects that had been proposed in the previous two years went forward with no appeals at all being filed. Of the projects that were appealed, almost 80 percent were processed within the required ninety-day timeframe—a forty-five-day comment period followed by a stay of the same length. Given the magnitude of some of the proposed projects, ninety days is hardly a huge delay, but if appeals are not resolved and the matter goes to court things can be dragged out. Groups who have commented or appealed may have legal standing to sue the agency if they are not satisfied with the final decision.
George Sexton of the Klamath-Siskiyou Wildlands Center says his group has appealed every old-growth sale that has been proposed in the past ten years, and that many of those cases have wound up in court. “I’m not exactly sure what the appeals process accomplishes at all,” he says. “The Forest Service very rarely changes projects; they make little effort to bring projects that are appealed into compliance with the law.”
But without appeals, groups like Sexton’s have no options other than going to court. Barbara Ullian, with the Siskiyou Project, says that of the dozens of appeals she has filed over the past decade, some have been resolved favorably and, in her opinion, have led to a better forest plan. Regarding a recent appeal filed over the management plan for the Illinois River Wild and Scenic Recreation Project, Ullian says that the Siskiyou Project’s appeal opened the door to a dialogue with the Forest Service about the plan. “It was a good process. We both learned a lot about each other’s position,” she says. “But I don’t know if any of us changed our minds.”
The Siskiyou Project compromised on some things, and dropped changes on parts of their appeal, in order to come to an agreement with the Forest Service.
Rich Fairbanks, a former Forest Service team leader, says that although they can be time-consuming and cumbersome for the agency, appeals serve a vital function. The very notion that the proposals will be scrutinized can compel foresters to create a viable plan in the first place. “When you respond to an appeal, from any side, it makes you think a little more on the next project. You’re thinking about what was right or wrong; it’s a tool of discipline,” he says. Reversing decisions can be costly, as well as embarrassing—in short, something most forest supervisors don’t want to face.
Fairbanks points out that appeals can also add more in-depth information to land management decisions. In the case of the Biscuit Fire, Jerry Franklin, a University of Washington professor who has long studied ecosystem recovery after natural disturbances, wrote five pages of comments. His comments were quoted in appeals, and later, when the case was litigated, his opinions were included in the court process. Fairbanks says that Franklin’s comments not only added to the voices of those who wrote the appeal—who were not, for the most part, scientists—but ensured that the final ruling was informed by science.
Not everyone in the Forest Service appreciates or even welcomes appeals. Those who favor a return to the “culture of expertise” will continue to push for the incremental erosion of the process. “There are not many wires into the Forest Service, not many ways you can get through to them,” Fairbanks says of the appeals process. “But this is one solid avenue.” It is an avenue that may be closing soon.Ê