Many federal and state government agencies provide for administrative review of agency decisions by another agency official or a quasi-judicial board. This enables a person or organization or company to appeal a decision that adversely affects its interests. If the person appealing is not satisfied with the result of the agency's administrative review, it may usually seek further review by a court. This section describes the administrative review procedures of two federal executive branch agencies that have responsibilities for managing various natural resources, e.g., minerals, recreational lands, and forests, the Bureau of Land Management (BLM) in the U.S. Department of the Interior and the U.S. Forest Service (USFS) in the U.S. Department of Agriculture. The procedures of other federal and state agencies are generally similar.
What is a trial-type hearing?
Some statutes require that an agency's adjudication be "determined on the record after opportunity for an agency hearing" in accordance with the Administrative Procedure Act (APA), 5 U.S.C. 554 , and some agencies elect to make some of their decisions after such a hearing even if it is not required by statute. A hearing is usually conducted by an administrative law judge, and must be conducted in accordance with the requirements of sections 554(d) and 556(c) of the APA.
While the following provides a brief overview of appeal procedures, it is important for appellants to consult and carefully comply with the procedures set forth in the agency's regulations (cited below).
Many of the laws that the BLM and the USFS implement require that these agencies provide administrative review of their decisions. Usually these laws authorize the agencies to issue regulations that elaborate the statutory requirements. For example, the Taylor Grazing Act provides that a person who is adversely affected by a BLM grazing decision may request a trial-type hearing as a step in the agency's administrative appeal process. The agency's regulations spell out how the person requests the hearing, who conducts it and how, and whether and how the agency's decision after the hearing may be further appealed within the agency.
Should You File an Appeal?
Administrative appeals are generally less expensive and less time-consuming than appeals to a court. They are not, however, "free": they at least take one's time and energy, and if they are important enough to the person or complex enough they may entail engaging an attorney. Unless the attorney agrees to contribute his or her time "pro bono," that time may be costly.
One important reason for filing an administrative appeal is that it is necessary to do so if one intends eventually to appeal to a court. That is because courts normally require that a person "exhaust" the administrative remedies available in an agency before seeking judicial review. The exception to this doctrine is that one may appeal directly to court if the agency's decision is "final." An agency's action is considered final if it will remain in effect even if it is the subject of an administrative appeal within the agency, e.g., a BLM decision is not suspended or "stayed" while the appeal is pending.
There are good reasons to pursue an administrative appeal even if one could bypass it and appeal directly to court. The agency's reviewing official or appeal board is likely to be more familiar with the subject matter and the issues of the law under which a decision was made than a court. And, if the agency is relatively current in disposing of the appeals that have been filed, a decision in an administrative appeal should be more timely and less expensive than a court decision. (Historically, IBLA had a large backlog of pending appeals and it could take as long as a few years for it to issue a decision. Currently it has approximately 175 active pending appeals and it takes 10 - 12 months on average for it to issue a decision in an appeal.) A court might also show more deference to the agency's decision than the agency's reviewing official or appeal board.
Decisions by IBLA establish precedents. This means that IBLA will normally follow its decisions in previous cases with similar facts and issues. For this reason past IBLA decisions may be useful to members of the public and attorneys who are considering whether or not to appeal a decision in the future. (An initial decision by Administrative Law Judge after a trial-type hearing is not, however, precedential.)
There are two administrative review boards in the Department of the Interior(DOI)- the Interior Board of Land Appeals, which renders decisions relating to public lands and mineral resources (including decisions of the Bureau of Land Management, the Minerals Management Service, and the Office of Surface Mining) and the Interior Board of Indian Appeals, which is authorized to decide appeals of decisions of the Bureau of Indian Affairs. This section focuses on the appeals process as it relates to the BLM.
Interior Board of Land Appeals (IBLA)
The Interior Board of Land Appeals consists of a Chief Administrative Judge, Deputy Chief Administrative Judge, and Administrative Judges. As a board they are authorized by the Secretary of the Interior to decide appeals from decisions rendered by Department of the Interior officials relating to:
- the use and disposition of public lands and their resources and the use and disposition of mineral resources in certain acquired lands of the United States and in the submerged lands of the Outer Continental Shelf;
- land selections under the Alaska Native Claims Settlement Act; and
- surface coal mining and reclamation operations under the Surface Mining Control and Reclamation Act of 1977.
Interior Board of Indian Appeals (IBIA)
The Interior Board of Indian Appeals (IBIA) is authorized by the Secretary of the Interior to decide appeals from:
- administrative actions and decisions of Bureau of Indian Affairs (BIA) officials,
- decisions of Administrative Law Judges regarding Indian probate matters as well as
- matters pertaining to Indians that have been referred by the Secretary or Assistant Secretary-Indian Affairs.
Note: DOI published proposed rules that would amend some of the procedures applicable to review of all appeals to IBLA. These rules currently await final approval in by the Assistant Secretary, Policy, Management, and Budget. The procedures described below are the procedures in the to-be-final rules.
The Department of the Interior's regulations that govern administrative appeal procedures are found in Part 4 of Title 43 of the Code of Federal Regulations (43 CFR Part 4).
All agency rules published in the CFR are available on the Government Printing Office web site at www.gpoaccess.gov.
Most appeals end up at the IBLA, but where the appeal starts depends on the issue being appealed. Some decisions, e.g., involving onshore oil and gas operations, must first be reviewed by the State Director of BLM in the state where the land is, and it is the State Director's decision that may be appealed to IBLA. 43 CFR 3165.3. Some appeals start with a trial-type hearing by an administrative law judge (ALJ). If a hearing is held, it is the initial decision of the ALJ who conducts the hearing that may be appealed to IBLA. 43 CFR 4.478. BLM decisions that do not involve a trial-type hearing as the first step of administrative review (as is the case for grazing decisions, for example) may be appealed directly to the Interior Board of Land Appeals (IBLA). 43 CFR 4.410(a).
What is required to be in an appeal to IBLA?
The notice of appeal must give the serial number or other identification of the case and may include a statement of reasons for the appeal, a statement of standing if that is required by section 4.412(b) (for an appeal relating to land selections under the Alaska Native Claims Settlement Act), and any arguments the appellant wishes to make. 43 CFR 4.411(b). If a notice of appeal is filed with BLM, BLM must compile the complete administrative record that led to the decision and send it to IBLA.
Administrative appeals from a BLM decision must be made within 30 days of receiving the decision (or the date it is published in the Federal Register, if it is). During that 30-day period, the BLM decision is not in effect, except as otherwise provided by law or other pertinent regulation. A notice of appeal must be filed with the BLM official who made the decision, not the IBLA. Either accompanying the notice of appeal, or within 30 days after filing it, the individual must provide a statement of reasons explaining why the appellant believes the BLM decision is in error. If a notice of appeal is filed with BLM, BLM must compile the complete administrative record that led to the decision and send it to IBLA.
As noted above most BLM decisions remain in effect while the appeal is being considered, so it may be advisable to file a petition for a stay of the decision with the notice of appeal. 43 CFR 4.21(a)(2). If the IBLA grants the petition, the decision is not effective until IBLA decides the appeal. Whether or not a stay is granted, BLM is entitled to file an answer to the statement of reasons for appeal that was filed with IBLA. It must do so within 60 days of receiving the statement. BLM may either write the answer itself or it may request an attorney in the Department's Office of the Solicitor to do so on its behalf.
Not everyone concerned about an agency's decision is entitled to file an appeal. Generally, to have a right of appeal a person or organization must have been involved in the public decision-making process and must have a legal interest that is adversely affected by the decision. The interest that is affected for the person to have "standing" to appeal does not necessarily have to be a property interest, e.g., ownership of the land involved. It is usually sufficient that the person uses the land for recreation, for example, in order to have the required interest.
To stay or not to stay
Petitions for a stay (a suspension of a decision) are not granted routinely. A petitioner has the burden of showing:
- relative harm to the parties if the stay is granted or denied,
- likelihood of the appellant's success on the merits of his reasons for appeal,
- likelihood of immediate and irreparable harm if the stay is not granted, and
- whether the public interest favors granting the stay. 43 CFR 4.21(b)(1)-(4).
Assuming a plausible case for succeeding on the merits, a general way to weigh the remaining factors is to consider what circumstances would be more difficult to un-do, those in place if a stay is granted or those if the stay is not granted and the decision remains in effect and is implemented. For example, if the BLM decision is to eradicate a population of prairie dogs or cut down a stand of timber, it would not be possible to resurrect it if a stay were denied but the appeal was ultimately successful. If a stay of the decision is granted pending a decision on the appeal, BLM may not implement the decision or change it.
The section of the rules that states who may appeal a BLM decision is 4.410; thus, it is cited as 43 CFR 4.410. It provides that the person must have been a "party to a case." A "party to a case" is "one who has taken action that is the subject of the decision on appeal, is the object of that decision, or has otherwise participated in the process leading to the decision under appeal, e.g., by filing a mining claim or application for use of public lands, by commenting on an environmental document, or by filing a protest to a proposed action." 43 CFR 4.410(b). (Protests of BLM decisions are allowed under 43 CFR 4.450-2 by "any person to any action proposed to be taken in any proceeding before" BLM.) The reason for requiring that one be a party in order to have a right of appeal is to provide BLM the opportunity to be informed of and consider the potential adverse consequences to the person's interests before it makes a decision. If one has not been a party, an attempted appeal will be dismissed without consideration of the reasons for appeal.
43 CFR 4.410 also requires that a person have an interest that is "adversely affected" by BLM's decision. Specifically, 4.410(d) provides that a party is adversely affected "when that party has a legally cognizable interest, and the decision on appeal has caused or is substantially likely to cause injury to that interest." It is IBLA, not the BLM, that determines whether the person filing the appeal is a "party to a case" that is "adversely affected."
If a person is not a party to the case or not adversely affected by the BLM decision - and therefore does not have a right of appeal - one option is to file a petition to intervene within 30 days the individual knew (or should have known) an appeal was filed. The petition must state whether this person would have had a right of appeal or would be adversely affected if the BLM decision were reversed or modified by IBLA. (For example, if an environmental organization appealed a BLM decision to grant a company a permit, that company could be adversely affected if IBLA were to reverse BLM's decision.) IBLA has discretion to grant or deny intervention. It may deny a petition if the rights of the existing parties would be disadvantaged by granting intervention or if the intervenor's participation would delay the adjudication of the appeal by IBLA. Alternatively, a person may file a motion to file a brief as an amicus curiae, i.e., a friend of the court. The motion must state the person's interest in the appeal and how the brief is relevant to the issues involved. If IBLA denies a petition to intervene it may allow the petitioner to file an amicus brief.
Short-circuiting the process with an agreement
Once a stay is granted that does not mean that BLM may not discuss a mutually acceptable settlement of the case with the parties to the appeal. Indeed, it may be in BLM's interest to consider a settlement if a stay is granted - or in an appellant's interest to do so if a petition for stay is denied - rather than wait several months for a decision that may be adverse to it. If an agreement to settle is reached on terms that differ from the original BLM decision, BLM will request that IBLA vacate that decision and remand the matter for a new decision. Alternatively, an appellant may request to withdraw its appeal. IBLA routinely grants such requests.
It is also possible for a party to ask IBLA for alternative dispute resolution, usually mediation. The board encourages ADR and will refer such a request to the Department's Office of Collaborative Action and Dispute Resolution (CADR) for assignment to a trained third-party neutral. If ADR is successful, the parties agree to ask IBLA to dismiss the appeal from its docket.
There are presently ten members of IBLA, referred to as Administrative Judges. Appeals to IBLA are decided by pairs of these judges. One of the pair is the lead judge who is responsible for reviewing the file and the arguments of the parties and drafting a decision. If the draft is acceptable to the other member, sometimes after negotiations between the two of them, it is copied for all other members of the board to review. If the second member cannot agree with the initial draft, he or she may draft a dissenting opinion and then a third member is assigned to decide which result he or she thinks is preferable. In this case, the draft majority and dissenting opinions are copied for other board members. If three or more other board members think a draft decision warrants discussion by the full board they will ask the Chief Administrative Judge to call a meeting to do so. Such a meeting usually results in an "en banc" decision by IBLA, sometimes with multiple opinions. Once a decision is reached by IBLA it is mailed to the parties and published in the collection of IBLA decisions that now numbers approximately 175 volumes. (Decisions are also posted on the Department's website, although for the past few years that has been prohibited by a court injunction.)
IBLA's authority to decide appeals is delegated to it by the Secretary of the Interior. The regulation delegating that authority, 43 CFR 4.5, reserves to the Secretary the power to assume jurisdiction over a pending appeal or to reconsider the decision IBLA makes in a particular appeal. A party may also request the Secretary to review an IBLA decision. It is rare that the Secretary will either assume jurisdiction or review an IBLA decision. More usual, although not common, is that an Assistant Secretary will issue a decision in place of BLM or other agency whose decisions may be appealed to IBLA (e.g., the Minerals Management Service or the Office of Surface Mining). Because an Assistant Secretary's delegated authority is equivalent to IBLA's, such a decision may not be appealed to IBLA.
The Forest Service has several different procedures for individuals to use in objecting to or appealing Forest Service decisions. Individuals must follow certain rules to appeal decisions the agency makes in its planning process and follow different rules to appeal projects and activities implementing those management plans. The Forest Service has another set of rules for those who object to its decisions to authorize various uses of National Forest System lands.
For appeals relating to:
Follow these rules:
Forest Service Planning
- Approving, revising or amending a resource management plan completed under the 1982 Planning Regulations (the 1982 rules were repealed in 2000 but rules in 2002 gave forest supervisors the option of planning under the 1982 or 2000 rules.)
Appeals process at 36 CFR 217 (2000)
- Approving, revising or amending a resource management plan developed under the 2008 rules
Pre-decisional review and objection process at 36 CFR 219.13
- Amending a resource management plan for most project-specific purposes
Appeals process at 36 CFR 215
- Amending a resource management plan to accommodate a hazardous fuels project
36 CFR 218 subpart A
Forest Service Management
- Appeal of National Forest System projects and activities implementing a resource management plan, such as wildlife management projects and timber sales
Appeals process at 36 CFR 215
- Object to hazardous fuels reduction projects authorized by the Healthy Forests Restoration Act of 2003
Process at 36 CFR 218
Occupancy and Use of National Forest System Lands
- Appeal decisions to allow access across lands or to use them for activities such as mining, grazing, OHV rallies and archaeological digs.
Appeals process at 36 CFR 251
Unlike the Department of the Interior which has established a quasi-judicial Office of Hearings and Appeals, Forest Service appeals are addressed by higher level officials within the line of authority. So, for example, a decision of a forest supervisor may be appealed to a regional forester, and a decision of a regional forester may be appealed to the Chief. The following sections describes three of these sets of rules in more detail - the project and activity rules (36 CFR 215), the occupancy and use rules (36 CFR 251), and the forest planning rules (36 CFR 219).
The Forest Service's regulations that govern administrative appeal procedures are found in Title 36 parts 200-299 of the Code of Federal Regulations (36 CFR Part 200-299). All agency rules published in the CFR are available on the Government Printing Office web site at www.gpoaccess.gov.
Projects and Activities Appeals (Part 215 regulations)
The Forest Service approves and carries out many projects and activities in the course of implementing its management plans, including timber sales, thinning projects, enhancement projects and construction of trails and facilities. Anyone dissatisfied with a Forest Service decision made regarding one of these projects or activities can appeal it according to Part 215 to the next highest official in the Forest Service line of authority. The Part 215 rules have two main purposes:
- They provide a process for the Forest Service to notify the public of proposed actions for projects and activities implementing a land and resource management plan. The Forest Service must give this notice and provide an opportunity for comment before it makes a decision to undertake the activity. See Notice and Comment [link to series edition].
- They also set out an appeal process for those dissatisfied with the Forest Service decision. The rules identify the decisions that may be appealed, who may appeal those decisions, the responsibilities of the participants in an appeal, and the procedures that apply for the prompt disposition of the appeal. The Forest Service revised the Part 215 appeal process in 2003, and currently the process differs for projects that were advertised for comments ("noticed") before or after June 3, 2003.
There are certain projects and decisions that are not subject to appeal, these include:
- Determination that a "new decision" is not needed after preparing a supplemental EIS or revision of an EA cannot be appealed;
- Preliminary findings made during the planning process on a project or activity cannot be appealed;
- Subsequent implementation actions that result from a project decision which was subject to appeal cannot themselves be appealed; and
- Forest Service recommendations to other federal agencies and concurrences (statements of agreement) with other federal agencies cannot be appealed. In addition, Forest Service decisions on projects and activities may not be appealed if the Forest Service received no negative comments on them during the comment period. And the Forest Service need not provide for notice, comment or appeals of minor or short term activities approved under a management plan.
- A project or activity decision implementing a management plan that is made by the Secretary of Agriculture or the Under Secretary for Natural Resources and Environment is a final agency action and may not be appealed.
For an example of a case being appealed under the 215 regulations, including a request for an injunction, click here.
Occupancy or Use Appeals (Part 251 regulations)
The Forest Service approves-and denies-many requests to occupy or use national forest system lands. Anyone dissatisfied with a Forest Service decision made regarding occupancy or use of Forest Service lands can appeal it according to Part 251 to the next highest official in the Forest Service line of authority. The part 251 appeal regulations are used to appeal decisions related to many different kinds of permits and uses, including:
- Mining plans of operations and other mineral uses;
- Grazing and other livestock uses;
- Archaeological excavation permits;
- Access to and use of private inholding within the boundaries of national forests; and
- Temporary use of lands.
The part 251 appeals regulations list a variety of decisions that cannot be appealed under these rules. Examples include certain commercial activities and contracts, personnel actions, and the forest planning process-all of which have alternative processes for appeal specified in particular, applicable laws.
For an example of a case being appealed under the 251 regulations, click here.
Forest Planning Appeals (Part 219 regulations)
The 2008 Forest Planning rules include a predecisional objection process to replace the appeals process. This objection process is intended to complement the public participation process because, ideally, objectors and the Forest Service can collaboratively work through concerns before the agency approves a plan.
What the appeal should contain:
USFS regulations spell out what the contents of an appeal or objection must be in 36 CFR 215.14, 36 CFR 251.90 and 36 CFR 219.13. All appeals and objections must include:
- name, address, and telephone number
- date and description of the decision being appealed or objected
- date of the decision
- name of the responsible USFS officer
Additional required information varies depending on the decision being reviewed.
Appeals of Project and Activity decisions require:
- any changes s/he seeks and explain why,
- portion(s) of the decision, plan s/he disagrees with and why;
- explain why the appellant believes the official responsible for the decision did not consider the substantive comments;
- explain how the decision violates the law, regulations, or policy.
Appeals of Occupancy or Use decisions require:
- a statement of how the appellant is adversely affected by the decision being appealed,
- a statement of the facts of the dispute and the issue(s) raised by the appeal,
- specific references to laws, regulation, or policy that the appellant believes were violated,
- a statement as to how the appellant has tried to resolve the issue with the Deciding Officer, and
- a statement of the relief being sought.
Objections to Forest Planning decisions require:
- a statement of the issues being objected to;
- the parts of the plan, amendment, or revision to which the objection applies;
- how the objecting party would be adversely affected; and
- EITHER a concise statement explaining how the objector believes that the plan, amendment, or revision is inconsistent with law, regulation, or policy;
- OR a concise statement explaining how the objector disagrees with the decision and any recommendations for change.
Projects and Activities (Part 215 regulations)
The question of who may file an appeal of projects and activities implementing a resource management plan has been in contention since the Part 215 rules were revised in 2003. Based on recent court decisions, the criterion for filing an appeal is very liberal: anyone who has expressed interest in a project or submitted comments during a project's notice and comment period or submitted comments in response to a project's draft EIS has a right to appeal. See the notice and comment edition of the series for more information about the commenting process.
Occupancy and Use (Part 251 regulations)
Procedures for appealing decisions regarding the occupancy and use of USFS lands (Part 251) are only available to:
- a person who applied for an authorization and whose application was denied
- a person who applied for an authorization and whose application was granted on conditions he or she finds unreasonable
- a person who holds an authorization who seeks relief from a decision related to it, or
- a person who has applied for or holds an authorization that is the subject of an appeal who has an interest that could be affected by the appeal and who has applied for and been granted "intervenor" status.
Forest Planning (Part 219 regulations)
Any person or organization other than a federal agency who participated in the planning process by submitting written comments may object to a plan, plan amendment or plan revision except:
- When the plan is approved contemporaneously with a project or activity decision and the plan amendment applies only to the project or activity in a way that the administrative review process in part 215 or part 218 applies
- When the responsible official is an official in the Department of Agriculture at a level higher than the Chief of the Forest Service so that there is no opportunity for review.
Under any rule (including part 215, 251, and 219) in the Forest Service, an appeal of an official's decision is decided by the supervisor at the next higher level rather by an appeals board like the IBLA. So, for example, an appeal of:
- a district ranger's decision is decided by the forest supervisor,
- a forest supervisor's decision by the regional forester.
- a regional forester's decision is reviewed by the Chief of the USFS, and
- a decision by the Chief is reviewed by the Secretary.
Decisions by the Chief are reviewed at the Secretary's discretion. Within 15 calendar days of the receipt of a notice of appeal, the Secretary will determine whether or not to review the decision. If the Secretary has not decided to review the Chief's decision by the end of this period the appellant will be notified by the Secretary's office that the Chief's decision is the final administrative decision of the Department of Agriculture.
Appeal decisions are final except for appeals of district ranger's decisions regarding occupancy and use (Part 251). Under Part 251, a district ranger's decision is subject to two levels of appeal, first to the forest supervisor, and second within fifteen days of that decision to the regional forester (on the same record, without an opportunity to add information). A regional forester's decision on a second-level appeal from a district ranger's decision is final agency action.
The individuals in the agency involved in an appeal have slightly different titles in Part 215 (projects and activities), Part 251 (occupancy or use), Part 219 (forest planning). For Part 215 decisions relating to projects or activities, there is an Appeal Deciding Officer, an Appeal Reviewing Officer, and a Responsible Official. A Responsible Official's decision is appealed by an Appeal Deciding Officer with a recommendation provided by an Appeal Reviewing Officer.
- Responsible Official- The Forest Service employee who has the delegated authority to make and implement a decision related to projects or activities implementing a management plan.
- Appeal Deciding Officer-The Secretary of Agriculture or Forest Service designee who has the authority and responsibility to render a decision on an appeal. The Appeal Deciding Officer is the next higher-level supervisor of the Responsible Official. The Appeal Deciding Officer makes all procedural determinations, may consolidate appeals, issue an appeal decision different from the Appeal Reviewing Officer's recommendation.
- Appeal Reviewing Officer-A Forest Service Line officer or USDA official who reviews an appeal and makes a written recommendation to the Appeal Deciding Officer on disposition of the appeal. The Appeal Reviewing Officer is someone at a higher level than the official who made the decision who was not involved in that decision and will not be involved in implementing it. In cases involving more than one appeal of a decision, the Appeal Reviewing Officer may consolidate appeals and offer one recommendation.
For decisions relating to occupancy or use in Part 251, there are two agency employees involved in the appeals process, the Reviewing Officer and the Deciding Officer. A Deciding Officer's decision is appealed by a Reviewing Officer.
- Deciding Officer-The Forest Service line officer (serves in a direct line of command from the Chief) who makes a decision related to the issuance, approval, or administration of an authorization to occupancy and use of National Forest System Lands.
- Reviewing Officer-The officer at the next administrative level above the Deciding Officer who conducts the appeal proceedings, makes all necessary rulings regarding conduct of an appeal and issues the appeal decision. The Reviewing Officer makes procedural determinations, may consolidate appeals, may request additional information from the parties, and may grant or deny requests to intervene in a first-level appeal made by a person under 251.96. The Reviewing Officer is responsible for maintaining all documents involved in a first-level appeal in one location, i.e., the notice of appeal, responsive statement, and any replies, orders, or correspondence related to the appeal.
For objections relating to forest planning in Part 219 there is a Responsible Official and a Reviewing Officer. Objections to plans, amendments, or revisions approved by a Responsible Official are responded to by a Reviewing Officer.
- Responsible Official-The official with the authority and responsibility to oversee the planning process and to approve plans, plan amendments, and plan revisions.
- Reviewing Officer-The supervisor of the responsible official. The reviewing officer responds to objections made to a plan, plan amendment, or plan revision prior to approval.
Projects and Activities (Part 215 regulations)
Deadlines for filing
Appeals filed under 36 CFR 251 or 36 CFR 215 must be filed within 45 days of the date on the notice of the written decision being appealed to the next highest line officer (the Appeal Deciding Officer (Part 215) or the Reviewing Officer (Part 251). Objections to forest plans, plan amendments or revisions must be made to the Reviewing Officer 30 days after notice for the plan, amendment or revision was published in the newspaper of record (Part 219).
Notification. The first step in the appeals process under Part 215 is notification. The USFS official responsible for making the original decision on a USFS project or activity (Responsible Official) must mail copies of the decision to those who submitted substantive comments and others who requested a copy and must publish notice of the decision in a newspaper of record. The notice is required to state whether the decision may be appealed, that an appeal must be filed within 45 days of publication of the notice, and provide the name and address of the USFS official with whom to file an appeal. It must also state when the project or any part of it has been determined to be an emergency situation and when it may be implemented.
Appeal. Written appeals and any attachments must be filed with the Appeal Deciding Officer within 45 days following the publication date of the legal notice of the decision in the newspaper of record.
Review. Once an appeal is filed, the Responsible Official must transmit all documents and comments relating to the decision to an Appeal Review Official, along with a list of those who submitted substantive comments. The Appeal Review Officer reviews the appeal and makes a written recommendation on a disposition of the appeal, but the Appeal Deciding Officer need not follow the recommendation. (The USFS does not release the recommendation until the agency issues the appeal decision.)
Meetings. The Responsible Official must contact the appellant and offer to meet and discuss informal resolution of the issues involved in the appeal. If the appellant declines, the Appeal Deciding Officer is informed. If the appellant agrees to a meeting, a date within 15 days of the close of the appeal period and a place for the meeting is set. The meeting normally takes place in person, although if schedules prevent the appellant's attendance, a video or telephone conference may be arranged. The meetings are open to the public. If the meeting results in new information or resolution of issues, the Responsible Official must tell the Appeal Deciding Officer the outcome of the meeting, which may include one of the following:
- if and how the parties agreed to resolve some or all of the issues (in which case appellants withdraw the appeal in whole or in part),
- if new information was received,
- if in new facts were put forth that require that the Responsible Official to revise the environmental analysis and reconsider the decision,
- or that the appeal was not resolved and therefore formal review of some or all of it must continue.
Decision. The Appeal Deciding Officer has 45 days following the conclusion of the 45-day appeal period to review the record and the Appeal Review Officer's recommendation and render a written decision that is the final disposition of the appeal. If the officer does not issue a decision within that 45-day period he must inform the appellant(s) in writing that he will not issue a decision. In that case the responsible official's original decision stands as the agency final action. The original decision on a project or activity is then subject to judicial review.
Notification. The Appeal Deciding Officer must give written notice of the decision to the Appeal Reviewing Officer, the applicant(s) or holder(s), and to any holder of a similar authorization who has requested notice of the decision. The notice must state the Appeal Deciding Officer's willingness to meet with the parties to discuss the decision.
Dismissal. An Appeal Deciding Officer can dismiss an appeal for several reasons including filing an appeal past the deadline, the requested relief or change cannot be granted under law, the appellant has appealed the same decision under part 251, the decision is not subject to appeal, or the individual (or organization) did not submit substantive comments during the comment period.
Occupancy or Use (Part 251 regulations)
Notification. A Deciding Officer will give written notice of decisions subject to an appeal to Forest Service land occupancy or use permit applicants and holders who were denied authorization, or offered authorization but find the terms and conditions unacceptable, and to any others who have made a written request to be notified of a specific decision. The notice will include a statement of the Deciding Officer's willingness to meet with the applicants or holders to hear any issues of concerns. The notice will also specify the name of the officer with whom an appeal of the decision may be filed, along with the address, and deadline for filing.
If the decision suspends or cancels a term grazing permit and the state in which the decision is made has a mediation program that has been certified by the Department, the notice must also inform the permit holder that he may request mediation when he files his appeal.
Appeal. An appeal must be filed with the next higher line officer (Reviewing Officer) within 45 days of the date on the notice of the written decision being appealed. A copy of the notice of appeal must also be sent to the Deciding Officer. Mediation may be requested at the time an appeal is filed.
Response. Normally, the Deciding Officer has 30 days from receipt of a notice of appeal in which to file a responsive statement with the Reviewing Officer and all parties. Within 20 days of the date of such a statement the appellant(s) and intervenor(s) may file replies with the reviewing officer and send copies to the deciding officer and the other parties.
Meetings. Before issuing a decision involving the administration of a written authorization, the Deciding Officer must meet with the holder, if it is practicable and consistent with the public interest, to discuss any concerns and to reach a common understanding and agreement if it is possible. If a decision is appealed, the Deciding Officer may meet with the appellant(s) and intervenor(s), together or separately, in order to narrow the issues, agree on the facts, and explore opportunities to resolve the issues by means other than review and decision of the appeal, including mediation. If the Deciding Officer requests it, the Reviewing Officer may extend the time period for decision in order to allow meaningful negotiations.
Option to withdraw. The Deciding Officer has the authority to withdraw a decision, in whole or in part, during the appeal. Where a Deciding Officer decides to withdraw a decision, all parties to the appeal and the Reviewing Officer must receive written notice.
Decision. The Reviewing Officer is to issue a decision within 30 days after the appeal record is closed at the first level of appeal and within 30 days of the receipt of the record from the first-level Reviewing Officer at the second level of appeal. The Reviewing Officer is to affirm or reverse the original decision in whole or in part and provide the reasons for his decision; he may also include instructions for what further action the Deciding Officer must take. Unless discretionary review is exercised, the appeal decision is final agency action.
Notification. The Reviewing Officer must send a copy of all appeal decisions to all participants.
Dismissal. A Reviewing Officer may dismiss an appeal for any of several reasons set forth in 36 CFR 251.92, e.g., the appellant is not eligible to appeal, the notice of appeal is filed late, or the relief requested cannot legally be granted under existing law. If an appeal is dismissed by a reviewing officer, there is only one level of appeal allowed, and it is discretionary, i.e., a regional forester has discretion whether to review a forest supervisor's dismissal, the Chief has discretion whether to review a regional forester's dismissal, the Secretary a Chief's decision.
Forest Planning (Part 219 regulations)
Public review. Before a plan, amendment or revision is approved, the Responsible Official must provide the public 30 calendar days for pre-decisional review and the opportunity to object.
Objection. An objection must be filed in writing with the Reviewing Officer within 30 days following the publication date of the legal notice in the newspaper of record for the availability of the plan, amendment, or revision.
Response. The reviewing Officer must promptly render a written response to the objection to the objecting party. The response of the Reviewing Officer is the final decision of the Department of Agriculture.
Other administrative review processes. When the Forest Service is a participant in a multi-federal agency effort that would otherwise be subject to objection under this rule, the Reviewing Officer may waive these objection procedures and instead adopt the administrative review procedures of another participating federal agency.
U.S. Environmental Protection Agency's (EPA's) Environmental Appeals Board (EAB)
The EAB is the final agency decision-maker on administrative appeals under all major environmental statutes that the U.S. Environmental Protection Agency (EPA) administers. It is an impartial body independent of all EPA components outside the immediate Office of the Administrator. The EAB typically sits in panels of three judges and makes decisions by majority vote.
In August of 2000 and again in March of 2002 several conservation organizations filed an administrative appeal with the EPA's Environmental Appeals Board (EAB) in Washington, D.C. challenging EPA's issuance of a National Pollution Discharge Elimination System (NPDES) Permit to the Carlota Copper Company in Arizona. The central issues in the appeal were 1.) the EPA's allowance of new point source discharges of copper into a stream segment already exceeding the state water quality standard for copper, and 2.) the EPA's failure to account for, and properly analyze under the National Environmental Policy Act (NEPA), additional point source discharges of copper and other pollutants associated with the Carlota Copper Company's mine development plan.
The EPA argued that its permit was legal because the agency was requiring the company to clean up an existing abandoned copper mine that was currently illegally discharging copper in order to "off set" the new pollution expected to come from the Carlota mine. The conservation organizations countered that the existing abandoned mine cleanup was located too far upstream (five miles) to "off set" any pollution from Carlota. They further argued that even with the expected "off set" a new Carlota discharge would still be causing or contributing to a violation of the applicable water quality standards for copper. The conservation groups also claimed that EPA failed to account for and analyze additional mine related point source discharges of copper. EPA argued that the organizations' comments were not specific enough on this point and were improperly submitted in the wrong venue. Although the comments were submitted to EPA well in advance of the final permitting decision, EPA argued they were ineffective because they were submitted during a public comment period for the EPA's development of a Total Maximum Daily Load (TMDL) for the same watershed, which was being prepared simultaneously with the issuance of the permit rather than for the permit itself.
The conservation groups lost their appeal when the EAB issued an Order Denying Review on September 4, 2004. The EAB ruled that the EPA had indeed properly applied the Clean Water Act to allow for the "off set" as proposed in the Carlota NPDES Permit. The EAB also agreed with the EPA that the comments regarding failure to account for additional copper discharges were not submitted during the proper public comment period, and thus were properly ignored by the EPA. The conservation organizations filed suit directly with the Ninth Circuit U.S. Court of Appeals and on October 4, 2007 won a ruling sending the permit back to the EPA on both counts -- invalidating the "off set" program and ordering the EPA to consider all comments properly submitted to the agency prior to the permit issuance.
The Government Printing Office (GPO) provides free public access to full-text, official federal information including the U.S. Code of Federal Regulations.
The Federal Register is the official daily publication for rules, proposed rules, and notices of Federal agencies and organizations, as well as executive orders and other presidential documents.
Department of the Interior's Office of Collaborative Action and Dispute Resolution (CADR)
CADR promotes, coordinates and facilitates greater use of alternative dispute resolution and consensus-building processes throughout the bureaus and offices of the U.S. Department of the Interior. The IBLA refers requests for alternative dispute resolution to CADR.
Will Irwin, a retired Administrative Judge on the Interior Board of Land Appeals and Jeffrey Parsons, an attorney with the Western Mining Action Project contributed to this edition.