After courts in California and Montana struck down Forest Service rules that limited public participation in certain logging decisions, the Senate has added language to an appropriations bill that would reinstate those rules.

Forest Service Acts to Limit Public Participation

Under the guise of limiting forest fires, the Forest Service issued a series of regulations in the summer of 2003 that created categorical exclusions for four types of logging projects. This allowed the Forest Service to avoid the environmental assessment and impact statement requirements of the National Environmental Policy Act (NEPA) for land management decisions involving those categorically excluded projects. The regulations also allowed the Forest Service to avoid the public notice, comment, and administrative appeal requirements of the Forest Service Decisionmaking and Appeals Reform Act (ARA).

Under the NEPA, agencies are required to assess the environmental impact of federal projects. The act, however, does allow agencies to exempt projects deemed to have an insignificant effect on the environment. The Forest Service regulations significantly expanded the number of logging projects that fall under the categorical exclusions. Environmental groups warned at the time that the exclusions could serve as a backdoor to increased logging.

"This clears the way for the timber industry and its friends in government to loot public forests and pocket the proceeds, free from public input or environmental review," said Amy Mall, a forest and land specialist at the Natural Resources Defense Council. "Make no mistake - this is not about healthy forests. It's about healthy profits for campaign contributors and healthy budgets for bureaucrats."

Courts Reject Limitations to Public Notice, Comment, Appeal

Prompted by litigation brought by environmental groups, courts in both Montana and California upheld the categorical exclusion of logging projects from environmental review. The courts, however, did rule that the Forest Service had improperly exempted land management decisions from the public notice, comment, and administrative appeal requirements of the ARA.

Courts have invalidated the following controversial rules:

1. a rule declaring that land management decisions categorically exempted from NEPA would be further exempted from ARA appeal, see Earth Island Inst. v. Pengilly, 376 F. Supp. 2d 994, 1004-05 (E.D. Cal. 2005);

    

2. a rule declaring that land management decisions signed directly by the Secretary or Under-Secretary of Agriculture are transformed into some other category of agency business and excluded from ARA notice and comment, see id. at 1005-06; and

    

3. a rule limiting ARA administrative appeal rights to people who submitted "substantive written or oral comments" during NEPA comment periods, without regard for the ARA's extension of appeal rights to commenters as well as people "involved in the public comment process . . . by otherwise notifying the Forest Service of their interest," see Wilderness Society v. Rey, Civ. No. 03-0119 (D. Mont. April 24, 2006).

Congress to Reinstate Forest Service Regulations

In reaction to the court decisions, the Senate is moving to add language to the appropriations bill for the Department of Interior and Related Agencies (H.R. 5386) that would restore the exemption from notice, comment and appeal for all projects categorically excluded by an agency. The Senate language was approved in subcommittee on June 27. If the language survives the Senate floor, remains through conference and is enacted into law, the public will be stripped of its ability to comment or appeal logging decisions deemed insignificant by the Forest Service.