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(approx. 15 printed pages in length)
on
Erik Ryberg
Center for Biological Diversity
(520) 623-5252 ext. 308
I. Introduction
Understanding how to participate in the Forest Service comment and appeals process requires an understanding of three things. Luckily, none of them are all that complicated. You have to know:
The Agency Process: How does the Forest Service decide and implement a
logging, grazing, or road-building project?
The Public’s Duties and Opportunities: How can a member of the public
get involved in and influence this agency process?
The Legal Requirements: what must the agency do, and what may it refuse to
do, when planning a timber sale, grazing, or construction project?
1. The Agency Process
In order to implement a project, the Forest Service must write a “decision document” that authorizes that project. This decision document will come attached to one of three kinds of analysis documents: an “environmental impact statement,” an “environmental assessment,” or a “categorical exclusion.”
Environmental Impact Statements, or “EISs,” are produced for the largest projects, those the agency deems potentially to have a significant effect on the environment. Logging projects that involve a lot of road building, are done in endangered species habitat, or that are quite large will require an EIS.
Environmental Assessments, or “EAs,” are for projects that the agency believes will not have a significant effect on the environment. Technically, an EA is prepared for the purpose of determining whether an EIS is necessary, but in reality the agency typically does an EA for projects it feels do not warrant an EIS but that are too big to be done under the third category, the Categorical Exclusion. An EA is formatted like an EIS but it is usually quite a bit smaller.
Categorical Exclusions, or “CEs,” are for the smallest projects, projects so small and insignificant that the agency deems them not to require much analysis at all. An example of the perfect kind of action for a CE is mowing the lawn in front of the Ranger District office. Obviously no in-depth analysis should be required for such an action. However, over the years the kinds of actions that are permitted under CEs have grown enormously, and now it is possible for the Forest Service, technically anyway, to slip a pretty sizeable logging project through under a CE. We’ll look at this more below.
2. The Public’s Duties and Opportunities
Although there are differences in some of the details between how a member of the public responds to an EIS, an EA, or a CE, the basic formula is the same. In a nutshell, you must:
1. Alert the agency you are interested in the first place, so that you can get on the mailing list to obtain the appropriate documents. This means writing to the Forest Service and asking for the documents produced for the projects that concern you. (The Forest Service publishes a list of all the projects it is working on, called the “Schedule of Proposed Actions.” You get the names of the projects by looking at the list.)
2. Alert the agency of your concerns about the project and issues involved that you feel may not be or have not been appropriately addressed.
3. Send your comments in at the appropriate time during the formal comment period – there is a thirty day window for EAs, usually a 45 day comment window for EISs, and, potentially, no window for CEs. Your comments must identify the project you are commenting on, include your contact information, and, if possible, they should identify the laws that you believe the agency is failing to follow.
4. Once a decision is made, you may appeal it. An appeal is really just a letter to the next higher official within the agency, but if you decide to appeal a decision, your appeal must meet a few minimum requirements. It must identify the regulation it is filed under (usually 36 CFR 215), it must identify the project, must be mailed to the appropriate official, it must be sent in during the 45 day window available to do so, and you must have submitted comments on the project in the formal comment period.
5. If you decide, after losing an appeal, that you would like to litigate, you may only litigate, broadly speaking, over those issues you appealed on.
3. The Legal Requirements and Authorities
We are dealing here with what is called “Administrative Law,” or the law that concerns how government agencies, usually of the executive branch, interact with the citizenry and the public resources that are in their control. The law is often categorized as either “procedural” or “substantive.”
Procedural law controls how the agency informs its decisions, what steps it must take to document what it is doing. The National Environmental Policy Act, which requires agencies to produce EISs, and EAs and to accept public comment on them, is a procedural law. It dictates not what kinds of decisions an agency can make but how the agency can make those decisions. Substantive law, on the other hand, concerns what the agency can and cannot do with public resources like trees and water and animals. The Endangered Species Act is a substantive law. Obviously, this distinction is not perfect, as both have elements of substance and procedure in them.
It is important to understand when dealing with agencies that there are actually a number of different of kinds of “law.” There are statutes, which are broad dictates written by Congress, the legislative branch of our government. These statutes are found in the United States Code, and have citations like “16 U.S.C. 1501.” Statutes are generally not too detailed, but they provide authoritative direction to the executive branch.
There are also regulations, which are more specific requirements that are actually written by the executive branch and are a kind of “interpretation” of the underlying statutes. These regulations are found in the Code of Federal Regulations, and have citations like “36 CFR 219.” Regulations, like statutes, are enforceable. Generally an agency may only disregard a regulation at its peril.
To complicate matters, there are also agency handbooks, manuals, internal memos, management direction letters, and so forth. Most of these are not enforceable, but some are. Generally speaking, direction that has gone through a public notice and comment period and that has been published in the Federal Register is enforceable by you—assuming you jump through all the right hoops. But this is all a big gray area—it’s best to assume that most agency manuals and handbooks contain discretionary direction, that is, direction that they can probably ignore if they feel like it. The “Forest Service Manual,” for example, is full of terrific direction involving wildlife, but the Forest Service gets away with ignoring just about all of it, and no judge is likely ever to sanction them for this. (N.B.: One document that is sometimes overlooked by forest advocates – perhaps because they are thought of as a kind of unenforceable manual – are the Forest Plans. Forest Plans have been through an official notice and comment period and that small portion of them that explicitly provides management standards is enforceable. The Forest Service must follow its Forest Plan standards.)
Finally, there is legal precedent. These are statements, in the form of judicial orders or final opinions, by the judicial branch that are binding on the agencies. All agencies must comply with Supreme Court opinions, all agencies in the respective circuits must comply with their Circuit Court opinions, and opinions rendered in the lowest courts, the District Courts, do not form precedent except on themselves.
The laws and regulations we typically invoke in Forest Service comments and appeals are the National Environmental Policy Act, the National Forest Management Act, and the Endangered Species Act. However, there are others: the Wild and Scenic Rivers Act, the Clean Water Act, the Multiple-Use Sustained Yield Act, and others may be useful at times. An understanding of the relevant caselaw is probably beyond what most appeal-writers need to know, but if it interests you, one of the best ways to learn it is by reading legal briefs and opinions submitted in public-lands cases.
II. The Agency Process: A Closer
Look
The agency process is driven, almost entirely, by the National Environmental Policy Act, which requires that the federal government produce a “detailed statement” that discloses the environmental impact of any “major Federal actions significantly affecting the quality of the human environment.”
Thus, the government has a duty first to determine which actions are “major,” which of course requires its own analysis, and, second, to prepare a detailed statement that reviews the impacts of those actions.
1. The First Steps
a.
The Schedule of Proposed Actions
The Schedule of Proposed Actions is a list, published quarterly, that is supposed to identify all projects for which planning is underway by the Forest Service. It is published on all individual National Forest websites, usually under a link called “Projects and Plans.” Note that some projects, because they are very small and come into being in between SOPAs, may never get listed on a SOPA. Still, one of the very first steps for the agency is to list the action on the SOPA.
b.
Scoping
“Scoping” refers to what the agency does to gather up the issues that are likely to be important in a given action. It is an early stage of analysis that, generally speaking, the public is involved in. If the project is very small, there may be no “public” scoping, but any project of any size should have a scoping process that is open to the public to participate in and file comments on. However, under the current rules, comments submitted during this informal, “scoping” period do not confer a right to appeal a project later. For that, you must have commented during the formal, thirty-day comment period.
c.
The Comment Period
By the time the comment period comes around, the agency should know if it is writing an EA, and EIS, or a categorical exclusion. It should have identified the location of and some general specifics about the action. You must send in comments at this time if you wish to appeal. The comment deadline is calculated by counting thirty calendar days starting with the day after the legal notice was published in the newspaper of record.
2. The Documents Prepared
a. The Categorical Exclusion:
For the Smallest Projects
Some federal actions are so small that no one would insist on a “detailed statement” that evaluates their impacts. The Forest Service should obviously be able to mow the lawn in front of the office building or take out the trash in the campgrounds without preparing a “detailed statement.” To take care of federal actions like these, the “Categorical Exclusion” was created. Some actions are in a “category” of activities that simply do not require analysis. (These categories are found in the Forest Service Handbook, at FSH 1909.15, Chapter 30, and they are enforceable.)
Over the years, however, the categories have expanded, and they now cover actions such as “timber stand improvement activities” that involve up to a mile of road construction, and “thinning” activities up to 1000 acres in size. Because large commercial logging projects could potentially occur under a categorical exclusion, activists need to pay attention to this class of projects.
If the Forest Service wishes to authorize an activity under a Categorical Exclusion, it must first identify the category that the activity fits into—if there is no category, the action must go through a more detailed analysis in an environmental assessment or, possibly, an environmental impact statement.
Once a
category from the Forest Service Handbook 1909.15(30) is identified, the agency
still has one remaining step: the action can only go forward under a
Categorical Exclusion if there “are no extraordinary circumstances related to
the proposed action.” There is no
exhaustive list of extraordinary circumstances, but they at least include
threatened, endangered, proposed, or sensitive species and their habitat, flood
plains, wetlands, municipal watersheds, wilderness areas and wilderness study
areas, roadless areas, Research natural areas, cultural sites, and
archaeological sites. The regulation cautions
that “the mere presence of one or more of these resource conditions does not
preclude the use of a categorical exclusion.
It is the degree of the potential effect of a proposed action on these
resource conditions that determines whether extraordinary circumstances
exist.” FSH 1909.15, Chapter 30.3
(1),(2).
This seems to suggest that a kind of “mini-review” is necessary so that the agency can determine that there will be no effect on extraordinary circumstances. Also, note that the regulations require that the agency be “certain” that the action will not have a significant effect on the environment: “If the responsible official determines . . . that it is uncertain whether the proposed action may have a significant effect on the environment, prepare an EA.” FSH 1909.15, Chapter 30.3 (3).
b. The Environmental Assessment: for projects that cannot be
categorically
excluded,
but are not large enough to warrant an EIS.
In theory, an environmental assessment is created to determine whether a full blown environmental impact statement is necessary. After writing the EA the agency will either sign a “Finding of No Significant Impact,” (or “FONSI”) and proceed with the project, or, if it cannot conclude there will be no significant impact, write an EIS. In practice, the agencies pretty well know when they start whether they will be writing an EIS or an EA, and EAs just end up being smaller, less involved versions of EISs.
All EAs follow the same basic format. The first chapter contains the “Purpose and Need” for the action, the second contains the “Alternatives,” or the different options the agency has identified for achieving the purpose and need, and the third chapter contains the “Affected Environment” and the “Environmental Effects” of the action.
Courts have generally permitted agencies to determine the Purpose and Need of a project with near total discretion. This means an agency can tailor its purpose and need in such a way that a very limited number of alternatives are even available. For example, if the purpose and need of an action is to “protect Smith’s Community Store from wildfire by logging all the trees around its perimeter,” then you can bet that all the alternatives will involve logging around Smith’s Community Store.
The Alternatives section should identify what is proposed and what the agency believes are the various means of achieving the purpose and need. All EAs and EISs must have a “no action” alternative, which serves as the baseline for determining effects. The no action alternative does not mean the agency does nothing at all, only that it does not do the action that is contemplated in the document, that is, that it decides not to move forward with the action.
The last chapter should identify what the current condition of the landscape is (the “affected environment”) and what the impacts of each of the alternative actions are predicted to be (the “environmental effects”). If the agency concludes that the impacts will not cross the “significance” threshold, then it will sign a FONSI and a Decision Notice and proceed with the action, after the appropriate appeal period.
c. The EIS: For projects
that “may have a significant effect” on the
environment.
An EIS is just a big EA. It follows the same format, but will probably have more alternatives and a longer, if not better, analysis. The agency will sign a Record of Decision and proceed with the action.
The one difference between EAs and EISs is that, under NEPA, a draft EIS must be prepared and circulated to the public before a final comes out. The public must be given an opportunity to comment on the draft EIS, usually just called a “DEIS.” An environmental assessment, however, need not come out in draft form. Indeed, under current Forest Service comment and appeal regulations, it’s possible you won’t see the whole EA until the decision is signed and you are in the administrative appeal period.
Note that and EA or EIS must only be prepared for federal actions – states and private
property owners do not need to prepare them unless there is a federal tie-in,
such as a federal permitting process involved.
Of course, any logging project or grazing project on Forest Service
lands will be a federal action that requires analysis in an EA or EIS.
3. Post-Decision Process
a.
The appeal period.
The appeal period is calculated by counting forty-five calendar days from the date the decision was published in the legal notice section of the newspaper, beginning with the day after the decision was published. The agency has forty-five days to respond to an appeal, during which time it will contact appellants to schedule a meeting with them to see if the appeal points can be resolved.
b.
Litigation
The agency will prepare an
“administrative record,” which contains all the documents it believes are
necessary to justify the decision in court.
III. The Public’s Duties and
Responsibilities: A Closer Look
1. Getting Notified.
In order to participate in the
decision-making process, you have to be notified of what is going on. The Forest Service has two duties regarding
public notice. First, As discussed
above, each National Forest must publish a “Schedule of Proposed Actions,”
often referred to by its acronym, “SOPA.”
The SOPA lists every project the agency is working on, is published four
times a year, and is available on every National Forest’s website. At this time hard copies of the SOPAs are
still available from most
The second
duty regarding public notice is that all projects that undergo NEPA analysis,
including most categorically excluded projects, must be advertised in the legal
notice section of the appropriate newspaper.
If you are really serious about staying on top of a particular National
Forest, you should probably either subscribe to the newspapers of record or
visit their legal notice section on-line.
Most legal notices in
To obtain NEPA mailings from the Forest Service, you should write to each Ranger District and request public mailings for all the projects you wish to participate in. You do not need to call each contact person; just write a letter to the Ranger District and list the projects you wish to be informed of. A sample letter is included in this packet.
Additionally, you can contact the agency each time you see a legal notice in the paper concerning an action that concerns you. The only advantage to watching the legal notices is you might catch projects that come into being in between SOPAs or projects that were inadvertently left out of SOPAs. These will usually be small Categorically Excluded projects.
2. Scoping: the first step in the process
“Scoping” refers to the early stages of an analysis, when the agency is looking for the important issues that will arise concerning a proposed action. For larger projects, the agency will probably send a letter around to all people it thinks may be interested, but there is no statutory duty that they do so. Smaller projects may only be “internally scoped,” which means there is no public notification. The more you insist that you are interested in projects, the more likely you are to hear from the agency at the scoping stage. The public has no duty to reply to scoping, but it never hurts at least to send a letter saying you have no particular concerns at this early stage, but want to remain informed of the project as it proceeds. Note that if the project is to be categorically excluded, this may the last chance you have to influence the decision with litigating, so on projects that will be categorically excluded, you should write a letter with all your issues if the project does indeed concern you.
Be aware, however, that just replying to a scoping notice does not give you anything so far as the law is concerned.[1] Just having sent in a letter in response to scoping does not give you the right to appeal the decision later. For that, you must have provided comments during the “formal comment period.”
3. The Formal Comment Period
The formal comment period is a thirty-day window for EAs and, usually, a forty-five day window for EISs, when the agency asks your comments on the proposed action. You must respond within the timeframe in order to have standing to appeal the final decision, and this is your best time to let the agency know what you think of their project. You should be as thorough in your comments as you can, although if the agency hasn’t given you much information to go on, sometimes there is only so much you can really say.
If possible, you should visit the area to be logged or grazed or otherwise impacted, and be sure to include photographs or video with your comments if you have them. Be as specific as you can, but don’t worry about general comments if that is all you have. Be sure at least to mention every issue that you think may end up being important later, even if it only means saying “I am concerned about wildlife habitat, water quality, and soil productivity in this area.” If you are personally knowledgeable about the area, you should say so, and feel free to say you think it has already been logged/grazed/whatever too heavily.
Be sure in your comments to include the name of the project, your full address, and the date of your comments. Otherwise, the format is very simple: think of it as a letter to the Forest Service, since that’s essentially what it is. There is no requirement that you fill your letter with legalese or legal citations – just tell the agency what you think is wrong or right about their action.
3. A Word About Deadlines
Under the current Forest Service appeal regulations, the deciding official gets to pick the point of the analysis process that he or she believes is the most important time for obtaining public comments in the “formal comment period.” Thus, the comment period may come so early that all the agency has to give you is a two-sentence narrative of what, generally, they intend to do. Alternatively, your opportunity to comment may come attached to a thorough, 200 page environmental assessment. It all depends on the deciding official’s mood.
But whatever it is you receive, you have a duty to respond with your concerns in the thirty-day window that begins the day after the publication of the legal notice in the local paper. To make things even more difficult, the Forest Service is prohibited by its own regulations to tell you in its letter when the thirty day window begins and ends. This is possibly the most ludicrous Forest Service regulation in existence, but there you have it. If you want to know exactly what the deadline is, you have to call them – but you are cautioned not to believe what they say, because by law they are immune from complaint if they lie to you. The only way to know for sure is to get the legal notice and count thirty calendar days, with the first day being the day after the legal notice was published. If the thirtieth day falls on a weekend or legal holiday, the first working day after the thirtieth day is the deadline.
If your letter is postmarked by the thirtieth day, it is deemed to have met the deadline. However, if you fax or email your comments, they must arrive during business hours in the appropriate Forest Service office.
If your comments really matter to you—that is, if you think you might appeal—consider sending them by certified mail, which costs $2.30 extra (you don’t need to get a return receipt, since all you need to be able to prove is that they were postmarked on time.)
4. Appeals
After the comment period concludes, the agency will look over the comments, possibly change the action some, and issue a decision. Decisions for categorical exclusions are called “Decision Memos” and are short descriptions of the action. For environmental assessments, a “Decision Notice” is prepared, which is slightly more detailed. EISs get “Records of Decision,” which are often thick enough to require actual bindings.
There is no appeal period for categorical exclusions. EAs and EISs can be appealed by people who submitted “substantive” comments during the thirty-day formal comment period. There is a forty-five day appeal period for EAs and EISs, unless the project has been prepared under the “Health Forests Restoration Act,” in which case there is a thirty day period. (See below for more information on the HFRA.)
Appeals are governed by 36 C.F.R. 215[2]. Like comment letters, an appeal does not require any unusual formatting or content. You must include the name of the project, the responsible official, the date, and you must include your name, address, and telephone number. You must state that your appeal is filed pursuant to 36 CFR 215. It is a good idea to include a paragraph that tells the agency you use the area the project is in and you intend to continue to do so. You should tell the agency what you want to occur – which is usually that the project be abandoned. A very short sample appeal that meets all the requirements is included in this packet.
If you have gotten to the appeal stage, you should probably give some thought to future litigation, and contact someone in your organization or other environmental organizations who may be interested in the project. Your appeal should be written with an eye toward a potential lawsuit, and this requires some attention to legal issues. However, there is no requirement that your appeal look like a legal brief, and to some degree doing that is probably counter productive anyway. Still, you should at least include some boilerplate language at the end of your appeal urging the Forest Service to withdraw the project until it can comply with applicable environmental laws. Also, at the beginning, tell the agency that you use and enjoy the area for hiking, birdwatching, solitude, or whatever it is you do there.
Remember that future litigation will be limited to issues that you raise in your appeal, so be thorough. If you think of an issue, but cannot prove it or are uncertain as to the legal obligation of the Forest Service to meet it, better to include it than leave it out. There are no penalties for appeals that are too long or inaccurate.
Be aware that you will mail your appeal to a different person than the official who signed the decision. Appeal mailing information will be included with the decision you are appealing.
Before you appeal any action, it is a good idea to have visited the area in question and also to have visited what is called the “project record,” which is the documentation the agency has compiled to support its decision. Always look through the project record carefully for anything that might undermine their decision or help you make your own argument.
5. Post-Appeal Action
Several days after filing your appeal you will get a telephone call from the responsible official, who will ask if you would like to meet for an “appeal resolution meeting.” Generally these are a waste of time, but not always. If you think there is a chance to get the agency to modify the project in a way you can live with in exchange for withdrawing your appeal, you should attend the meeting. If the only decision you can live with is for a total withdrawal of the action, then attending the meeting probably won’t get you there. There are no penalties for not attending the meeting. Just tell the official that you don’t see any hope of a resolution, and you don’t want to waste anybody’s time – including theirs.
Your appeal
will be resolved in a few weeks and you will be notified. If you lose, your only remaining action is to
litigate. It’s best to do this sooner,
rather than later, but there is no specific requirement regarding deadlines.[3]
IV. The Legal Authority: A
Closer Look
1. The National Environmental Policy Act of
1969: “Our basic national charter for protection of the environment.”
Notice that this law is called the National Environmental Policy Act, not the National Environmental Protection Act. NEPA is not about protecting the environment – at least not directly. A plan to log every last tree in our National Forests could be perfectly legal under NEPA, because NEPA is about procedure, not substance. However, NEPA today is probably the most powerful and important environmental law in America, because it compels federal agencies to disclose exactly what they are doing and to investigate the impacts of what they plan to do, and it compels them to disclose this information in a systematic manner that can be understood by a lay person. NEPA is about information, and information is what permits the public to participate meaningfully in the decision-making process.
The NEPA
statute is at 43 U.S.C. 4321; the NEPA Regulations are at 40 C.F.R. 1500. Neither is particularly challenging reading,
and all committed forest defenders should read both the statute and the
regulations. Really! They’re good reading!
The NEPA requires that agencies do not operate in secret. They must make available to you the documents they use to come to their conclusions. Further, their conclusions must be reasonable: officials have a responsibility to ensure the objectivity and scientific integrity of the documents they prepare. They must “rigorously explore” alternatives to their proposed action. They must reveal the reasoning behind their conclusions. They must investigate the “cumulative effects” of their actions in conjunction with other past, present, and foreseeable future actions. They must write their environmental documents “in plain language.” Opposing points of view must be acknowledged and confronted in the document. People who contributed to the analysis must be identified, along with their titles and qualifications. Incomplete information or unpredictable results must be disclosed.
The text of the NEPA regulations and the statute are straightforward enough that I am not going to go through the requirements point by point here. Suffice it to say that NEPA enforces a reasonable process on the agencies, and if you find them mischaracterizing something, ignoring something, or coming to a conclusion that is not warranted by the evidence in front of them, that is probably a NEPA violation.
2. The National Forest
Management Act: Setting limits on what can be done
The National Forest Management Act made a big splash in 1976 when it was passed, but over the years its impact has been muted by poor case law and neglect. However, it still carries a punch in that it requires the Forest Service to create “Forest Plans” for each National Forest. These Forest Plans, in theory, must contain minimum management standards that constrain how the Forest Service can manage the forests. Each Forest Plan will have a short section called “Standards and Guidelines,” and the standards portion is enforceable. Every forest defender should have a copy of the Forest Plan for the area they work on, and should know and comprehensively understand the relevant standards. Some that seem insignificant may be very useful, so approach these with an open mind.
Here in the Southwest, the most important Forest Plan standards are the ones regarding Mexican spotted owls, northern goshawks, and old-growth forests. All forest defenders should be intimately familiar with these Forest Plan standards, and should insist that the Forest Service apply them.
The National Forest Management Act can be found at 16 U.S.C. § 1600 and 36 CFR § 217. There is some confusion about the current status of the regulations, and which regulations are still in effect. The correct answer is probably that the “old” 1982 regulations are in effect now, although the Bush administration appears to dispute this and believe that there are no regulations at all in place for the NFMA.
It is worth noting that the 1982
regulations, which were revised by
3. The Endangered Species Act:
prohibiting “take” of a listed species
Unlike the NEPA, the ESA does not make good reading. In a nutshell, the ESA prohibits any person from “taking” a listed species, except under a few conditions. Agencies must consult with the Fish and Wildlife Service (for terrestrial species and inland fish) and the National Oceanic and Atmospheric Administration (for anadromous fish like salmon) any time they authorize an action that may have an adverse affect on an endangered species.
How this comes up in the forest conservation context is that the Forest Service may conclude that its timber sale will not have an adverse effect on, say, the Mexican spotted owl, and thus not consult on the action. Or, it may neglect even to notice that there are endangered species present. Generally speaking, though, the weak points these days do not come at the level of the Forest Service, but in the consultation stage, which you can’t really get at very easily through comments and appeals. The Forest Service has a duty to consult, but it does not have a duty to ensure that the consulted agency do a great job. Still, if you believe that the result of consultation is inadequate – that the project will have an impact on an endangered species beyond what the document reflects, for example – this is something you should bring up in comments.
4.
The Clean Water Act: Limiting pollutants in waters
One of the most complicated
federal statutes you will ever have to consult, the Clean Water Act is
important to forest defenders because, at least in theory, it requires states
to set limits on the amount of sediment that can be added to most state waters,
which include those on federal land.
These limits are called “Total Maximum Daily Loads,” and can in some
circumstances be useful. In the arid
southwest, it is less of an issue than in, say, northern
V. Getting the Information You
Need: The Freedom of Information Act
The Freedom of Information Act is a tremendously important law that permits the public to get access to most non-draft documents produced by the federal government. While there are exemptions for law enforcement, personnel files, and issues of national security, most documents you need will be available to you under the FOIA. Only one exemption, which permits the government to withhold “draft” or “deliberative” documents, causes forest defenders much trouble, and even this is not likely to be a problem in most circumstances.
The Freedom of Information Act requires the government to make available to you releasable documents that you request. You may be charged copy fees, but the first 100 pages will be copied free. It is good to offer to visit the Forest Service to review the requested materials if they are voluminous.
The Forest Service has twenty working days to respond to a FOIA request; it can respond by releasing the documents, withholding the documents, stating that no records exist to satisfy your request, or by informing you when they will provide the documents. Remember that a “no records” response can be very useful. If you are trying to prove that the agency does not have, for example, population data on an animal, you can request the population data and use the “no records response” to prove your point.
Always send a FOIA certified mail, and, now that the Forest Service has stopped notifying people when it has received a FOIA, it may be best to get a return receipt as well.
If you
believe that your request may involve a lot of search time and copy fees, you
may request a fee waiver. Fee waivers
are much easier for non-profit conservation organizations to obtain than
individuals, but individuals can get them, too.
To obtain a fee waiver you must show that your request involves
documents that are held by the
Using the FOIA is an art. The agency can make things tremendously difficult on you if it wants to. FOIA officials work very closely with project planners, and if someone suspects that you are using the FOIA to uncover a problem with agency management, you can bet you will run into snags. You will start getting a lot of hemming and hawing about people being out of the office, about deadlines being too onerous, about your request not being comprehensible, about fees, and about everything you can imagine. The FOIA offers enough escape hatches that it is very difficult to enforce until the agency has really screwed up. Just missing a deadline probably isn’t going to be enough. My advice is never to make an agreement over the telephone, and conduct as much of your negotiation as possible by letter. Do not ever agree to anything you don’t completely understand and that doesn’t have a firm date attached to it. Word your requests as carefully but as clearly as possible. When you frame the request, think: what would a judge, unfamiliar with this issue, think this request is for? Would it make sense to a judge, and be unambiguous? If the answer is yes, you’ve probably framed your request well.
There is an appeal process for FOIAs: if you believe you have been unfairly denied documents or if deadlines pass, you can appeal to the Washington Office. Appeals need only identify the request you filed and what you think went wrong, along with, of course, your name and contact information. Like FOIA requests, send them certified, return receipt!
VI. A Few Words About the HFRA
a.
The HFRA and the HFI
First, we need to get the terminology right. The “Healthy Forests Initiative” is an executive branch proposal that resulted, chiefly for our purposes, in a few expanded categorical exclusion opportunities. The “Health Forests Restoration Act” is a law passed by congress that permits the Forest Service to analyze certain timber sale projects and submit them for public comment in a slightly different manner. However, the basic laws still apply even to projects conducted under the HFRA. The legislation does remove a few protections, but it didn’t turn out, fortunately, as bad as many predicted it would. Still, it erects some obstacles for those of us who are trying to protect forests and wildlife habitat.
If the Forest Service wishes to conduct a timber sale analysis under the HFRA, it must announce that it is doing so. The project must be done with some basic collaboration with the public, and it can only occur in a municipal watershed, an area within 1.5 miles of structures and homes in an “at risk community,” an area within the boundaries of a “community wildfire protection plan,” or in an area that meets certain conditions regarding endangered species.
If the project falls within these areas, it must proceed with public notice and, generally, it must comply with all environmental law (the provision of NEPA that requires an evaluation of a range of alternatives need not be met). There is some protection for old-growth forest and all projects must “maximize the retention of large trees” and focus “largely on small diameter trees, thinning, strategic fuel breaks, and prescribed fire to modify fire behavior.”
Only EAs or EISs may be prepared under the HFRA; categorical exclusions are not permitted.
Should or when you see an HFRA project, it will be prepared under 36 C.F.R. § 218, the regulations prepared by the Forest Service to carry out the public notice portion of the Act.
b.
36 C.F.R. § 218: the HFRA Regulations for Notice and Comment
The basic formula is the same for commenting and “objecting,” which is the term the HFRA uses instead of “appealing.” The HFRA project must have an opportunity for public comment, and you must comment at that time in order to be able to object to the final decision. The agency will supply a completed EA or EIS to which you file an “objection.” One difference is that for projects under the HFRA, comments provided during scoping will confer the right to object.
You have only thirty days to object after the EA or EIS is made available for objections. You are not permitted to “incorporate by reference” any documents, so anything you refer to (other than, presumably, the EA or EIS itself) must be included with your objection. This is important! If you back up a statement with an article from a scientific journal, you must supply a copy of that article with your objection.
A decision on an HFRA project is not made until after the objection has been reviewed.
VII. A Final Note
Above all,
remember that what you are doing is an art.
The law is only so good, the agency only so flexible, and the landscape
only so vast. There are many
constraints, but there are also many, many new avenues for creative people to
explore to help preserve our wild landscapes.
Learn to know the rules and figure out ways to improve them or use them
in new ways. Try to operate with a plan
– a plan to adjust the programs on one Ranger District or one
And don’t ever forget: you are never going to make any progress until you get out on the ground and look at, on your feet, walking, using all your senses, the places that the agency wishes to log, graze, mine, or develop.
This is vital.
[1] This is not technically true – it’s a very gray area – but you should probably treat it as if it is true.
[2] Except for projects prepared under the Healthy Forests Restoration Act, in which case appeals are filed pursuant to 36 C.F.R. 218.
[3] For the lawyers in the crowd, yes, there is a six-year statute of limitations. But you aren’t going to wait that long, are you?