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Administrative Review of U.S.D.A. Forest Service Decisions

Michael J. Gippert, Ronald Mulach, Natural Resources and Environmental Administrative Law and Procedure II

Over the past 50 years Forest Service administrative appeal processes have shifted back and forth between informal and formal procedures. Since 1965 the appeal processes concerning land management planning have undergone considerable change as the public has become more involved in agency decisionmaking. In 1989 an important revision of appeals procedures occurred, resulting in two major appeal rules for National Forest System planning and management decisions: 36 CFR 217 for appeal of forest planning decisions, and 36 CFR 251.80 appeals by persons or organizations holding or applying for written instruments authorizing the use of National Forest System lands.

In 1992 the agency undertook a year-long review and evaluation of its appeal procedures. The 1992 review uncovered many problems with the procedures and led to the publication of a proposed rule amending the 36 CFR 217 process to provide for a pre-decisional public involvement process rather than post-decisional administrative appeal of forest planning decisions. No change to 36 CFR 251.80 was proposed. The Forest Service received over 30,000 comments on the proposed rule. Before a final rule could be published, Congress enacted Section 322 of the Interior Appropriations Act of Fiscal Year 1993 (Public Law 102-381), legislating both pre-decisional notice and comment as well as a post-decision administrative appea