Real World Implications of Forest Service’s New Process for Finalizing Records Of Decision

About a year ago, the Department of Agriculture (“USDA”) issued a final rule establishing a ‎new and exclusive process for filing objections to certain proposed National Forest Service (“NFS”) ‎projects and activities (78 Fed. Reg. 18,481 (Mar. 27, 2013)). The new procedure is prescribed in 36 CFR Part 218. The affected projects and ‎activities consist of the decisions implementing land management plans and documented with a Record of Decision (“ROD”) or ‎Decision Notice (“DN”). The new procedure provides for the ‎resolution of objections prior to the NFS making a final decision. The old procedure, based on the ‎Appeal Reform Act, provides for a post-decisional administrative appeal process.‎

The new procedure applies to NFS project proposals that are beyond the scoping stage (e.g., ‎those “which have legal notice published [as of March 27, 2013]”) but will not have a signed ROD until ‎after September 26, 2013. NFS has now begun taking the position that the new ‎process applies to specific projects, meaning that ROD’s issued at the conclusion of a NEPA review are not subject to administrative review.

Under the new procedure, objectors will have 45 days after legal notice of the Final ‎Environmental Impact Statement (EIS) and draft ROD to file objections. The NFS is required to ‎respond to all objections but will have only 45 calendar days plus one 30-day extension to do so. The ‎Final EIS and ROD will become final soon after the NFS responds to objections. At this point, the ‎administrative process for the EIS will be completed, but opponents may pursue judicial review.‎

When a NEPA process Final EIS differs from the Draft EIS in ways the participating public deems ‎‎“significant” or when the Final EIS contains data, reports or studies not previously relied upon by the ‎NFS in the Draft EIS, the draft ROD subsumes the risks associated with those issues. Simply put, the ‎new process provides a basis for dozens of objections to the process itself as fundamentally ‎unfair and not in keeping with the goals of NEPA. How will the NFS respond to these ‎complaints? We will know for certain in the next few weeks as cases come to the end of the new NFS ‎time limits.‎

For regulated industry, the balance between reasonable regulatory approval time frames and ‎ensuring quality decision making sets up a tension that at the end of the day may lead to increased ‎litigation. Increased litigation serves neither side of the balance. While time limits can be useful for ‎moving regulatory processes along, there are unintended consequences. In an attempt to keep the ‎process moving, the NFS may have inadvertently set up another issue for appeal. The new process ‎poses a number of questions and introduces uncertainty that may not have been contemplated by ‎placing limitation on the timing of the decisions. Given the time limits, what is an acceptable level of ‎change from draft to final reports? How much more work can the NFS do after the draft? Should NFS ‎be limited in its ability to make changes based on comments to a draft because making changes will ‎invoke an new issue for appeal? For those involved in this and other regulatory processes in which ‎time limits are imposed the final decisions here by NFS and perhaps a court will have far reaching ‎implications.‎

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