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One more day protest the war on the forests!

Hey all, despite the anti-war protests, the Bush Administration continues to erode the rights of the people to appeal timber sales. This appeals tactic was working. There's only time to submit these comments in email form, but a sample letter is provided here. It only takes a few minutes to cut and paste or log onto the Lands Alliance website to speak out for the North American forests, the creatures and flora who can't write a comment letter. Let's flood 'em with emails and faxes...
Subject: Feb 18 Comment Deadline - Comment and
Appeal Regulations
Date: Fri, 14 Feb 2003 09:39:29 -0800 (PST)
From:  maxwilson@americanlands.org

To: All Activists
From: Max Wilson, American Lands Alliance
Date: 14 February 2003

The deadline for submitting comments to the Forest Service on the proposed Comment and Appeal
Regulations is February 18th. It is critical that every change in regulations that the Bush
Administration proposes is met by a flood of comments demanding public involvement in Forest
Service activities and denying the Forest Service the right to exploit public lands. Below, I've included
analysis of the proposed regulations so that you can determine how these changes will affect your
work. Below are sample comments for your use.

The sample comments will also be available on the
American Lands website.

We would like to thank The Wilderness Society, the Nez Perce Tribe, and Heartwood for sharing their comments with us. The language in the attached comments is largely borrowed from these groups' comments.

Federal Register notice:

Send comments to:
USDA FS, Appeal Rule Content Analysis Team
P.O. Box 9079
Missoula, MT 59807
Fax: (406) 329-3556 / Email:

The public's right to comment on and appeal Forest Service projects, as afforded by the Appeals
Reform Act, could soon be limited. Under the proposed regulations:

* The Forest Service would not consider the public's comments on general forest management.
Comments would only be considered if they are "specific to" and have "a direct relationship to the
proposed action" allowing the Forest Service to dismiss general comments.

* Only those who submitted substantive comments on the project could appeal decisions and the
appeals would be limited to the issues addressed in the comments.

* The public would have no opportunity to comment on or appeal the majority of Forest Service
projects. The Forest Service has proposed several new regulations that would categorically
exclude a wide range of projects. Under this rule all projects that are conducted under a categorical
exclusion would be exempt from the comment and appeal process. This means that, if other proposed
regulations are implemented, timber sales, salvage logging, hazardous fuel sales, and forest
management plans could be implemented with no opportunity for the public to appeal.

* Disputed timber sales and salvage logging projects could proceed even while the appeals of the
projects are being considered. For those appeals that are won, in all likelihood, the trees may
already have been cut down.

* The Secretary or Undersecretary of Agriculture could bypass the public entirely by implementing
projects without a comment period or opportunity for appeal.


February 18, 2003

USDA FS, Appeal Rule Content Analysis Team
P.O. Box 9079
Missoula, MT 59807

Dear Sir or Madam:

We are writing to express our strong concerns with the proposed changes to 36 CFR Part 215:
Notice, Comment, and Appeal Procedures for Projects and Activities on National Forest System Lands. As
discussed below, we are primarily concerned about the following proposed changes: (1) allowing
projects under appeal to be implemented immediately for economic reasons such as salvage logging,
(2) exempting relatively small timber sales from comment and appeal, (3) limiting appealable
issues to those specifically raised in comments, (4) only considering "substantive" comments, (5)
omitting interested parties from the appeal process, and (6) exempting project decisions made by Department
of Agriculture Secretary Ann Veneman or Under Secretary Mark Rey. We are generally concerned that
these regulations are inconsistent with the underlying statute that requires the agency to provide
such notice, comment, and appeal procedures for all projects that implement a forest plan.

We are extremely concerned about the cumulative impact of numerous proposals and actions by Bush
Administration to "streamline" land management and planning on the national forests. Some, but
not all, of these administrative actions are part of the Bush Administration's "Healthy Forests
Initiative." The other changes include:

* Proposed categorical exclusion of hazardous fuel reduction projects from National Environmental
Policy Act (NEPA) documentation (proposed 12/16/02).
* Proposed categorical exclusion of timber sales up to 50 acres and salvage sales up to 250 acres
(proposed 1/8/03).
* Proposed amendments to the National Forest Management Act (NFMA) regulations (proposed 12/6/02).
* Guidance from Council on Environmental Quality concerning environmental assessments of fuel
reduction projects (12/9/02).
* Guidance from U.S. Fish and Wildlife Service and National Marine Fisheries Service concerning
endangered species consultations on fuel reduction projects (12/10/02).
* Interim Directive on NEPA Categorical Exclusions and Extraordinary Circumstances (8/23/02).

The Administration must acknowledge and explain the drastic cumulative impacts of these regulatory
changes to public involvement and environmental protection in the national forests. The proposed
appeals regulations are closely tied to all of these other directives and proposals. For example,
the proposed appeals regulations would exempt all categorically excluded projects from the Appeals
Reform Act requirements for public notice and comment and administrative appeals. The proposed
categorical exclusion regulations, in turn, would exempt fuel reduction projects and relatively
small timber sales from NEPA requirements. The cumulative effect is to eliminate virtually any
opportunity for the public to comment on or appeal these kinds of projects.

1. Economic Basis for Finding an Emergency Situation

We oppose the proposal to allow the Forest Service to use "loss of economic value" as a
justification for plowing ahead with implementation of projects that have been appealed. Section
322(e) of the Appeals Reform Act generally requires the Forest Service to postpone (or "stay")
implementation of timber sales and other projects while administrative appeals of those projects
are being considered and decided. This is necessary in order to ensure that appeals are not rendered
meaningless. However, the Act allows the Chief of the Forest Service to grant exceptions
authorizing immediate implementation of projects when there is an "emergency situation." Under
the current ARA regulations, emergency situations are limited to ones that require urgent action such
as responding to fire or flooding that threatens public safety, water quality, or wildlife habitat
(36 C.F.R. 215.10(d)).

The proposed regulations would vastly expand the emergency exception by including "loss of
economic value" as a criterion for granting an exception. The proposal would define emergency situation as
one in which "a proposed action would provide relief from hazards threatening human health and
safety or natural resources on those or adjacent lands; or that would result in substantial loss of economic value to the Government if implementation of the proposed action were delayed." Sec. 215.2.

We are particularly concerned that this change would result in the widespread exemption of salvage
logging projects from the stay requirement. While delays resulting from appeals sometimes result
in some loss of economic value, that hardly constitutes an "emergency." Salvage logging is one of
the most controversial and environmentally risky types of Forest Service management. There is growing
scientific concern about the environmental impact of salvage operations, as evidenced by the report
of the Bescheta Panel.

2. Exempting Small Timber Sales

We disagree with the proposal to exempt from appeal all timber sales that are categorically
excluded from NEPA documentation. Besides providing a statutory right to appeal final project decisions,
the ARA requires the Forest Service to provide public notice and opportunity to comment on proposed
projects. The ARA requirements apply to all "projects and activities implementing land and
resource management plans." Under the regulations adopted by the Forest Service in 1993, the ARA
requirements generally do not apply to relatively minor projects that are categorically excluded
from NEPA. However, the 1993 regulations specify that all types of timber sales, regardless of
size, are subject to ARA requirements.

The proposed regulations would expand the exemption from ARA requirements to all categorically
excluded projects, including relatively small timber sales. In other words, any timber sale that
the Forest Service classifies as a CE will no longer be subject to public notice, comment, and
administrative appeal. The Forest Service recently proposed to categorically exclude salvage
timber sales up to 250 acres and other types of timber sales up to 50 acres. Separately, the agency has
proposed to categorically exclude thinning and other "hazardous fuels reduction projects,"
regardless of size. Together, these proposed CEs could cover the majority of Forest Service timber
sales in the coming years.

Very likely, the exemption of categorically excluded timber sales from administrative appeal will
result in a large increase in federal court litigation. A key issue in those cases will be
whether the Forest Service appropriately determined that a particular timber sale was eligible for a CE,
or whether an "extraordinary circumstance" precludes the use of a CE. These are issues that are far
more appropriate for internal agency review by the Regional Forester than by a federal court.
However, without an administrative appeal, judges will be less inclined to defer to agency
discretion and more likely to delve into the merits of the controversy. It would be far more
efficient and less contentious for these timber sale CE issues to be handled administratively
rather than through litigation.

3. Limiting Appealable Issues

The proposed regulations would impose a patently unfair and arbitrary burden on appellants by
prohibiting them from raising issues that they did not raise in their comments on the proposed
action. Sec. 215.15(b)(5). Apparently, the draft regulations would even preclude appeals on
changes from the proposed action that the commenter could not have foreseen. Changes in proposed
actions happen all the time, especially if the public comment process is working as it should.
Sometimes the proposed action remains the same, but the environmental analysis changes in response
to public comment. People should at least be able to appeal new issues that arise from changes in
the proposed action or environmental analysis.

4. Only Considering "Substantive" Comments

The draft regulations further restrict public involvement by only allowing "specific substantive
comments" on proposed projects. Sec. 215.5(c)(iii). Substantive comments are defined as
"comments that are within the scope of the proposed action, are specific to the proposed action, and have a
direct relationship to the proposed action." Sec. 215.2. This limitation could allow
hyper-technical Forest Service officials to ignore most public input on national forest management
activities. Often citizens wish to express their views and concerns about how a national forest is
being or should be managed, but lack specific knowledge about individual projects.

Besides disregarding comments deemed to be non-substantive, Forest Service officials could also
deny standing to file administrative appeals for persons who submitted such comments. This standing
limitation appears to violate the ARA, which allows appeals to be filed by anyone who submits
comments or otherwise notifies the Forest Service of his or her interest in the proposed action.
During the congressional debate in 1992, Senator DeConcini declared: "If there is ever a question
of standing, I feel that the burden should be on the Forest Service to prove that an individual does
not have standing, rather than the Appellant having to prove that he or she is eligible to file an
appeal." (Congressional Record, p. S15848, Sept. 30, 1992).

5. Omitting Interested Parties from the Appeal Process

Under the Proposed Rule Forest Service officials could deny standing to file administrative
appeals for people who submitted comments that were determined to be insubstantive. And for those who
submitted substantive comments, their appeals are limited to those issues addressed in their
comments. This limitation on standing appears to violate the Appeals Reform Act, which allows
appeals to be filed by anyone who submits comments or otherwise notifies the Forest Service of
interest in the proposed action.

The draft regulations also eliminate the opportunity for non-appellants to provide input, attend
settlement meetings, or otherwise participate in the appeals process. Although not required by
the ARA, the current appeal regulations give "interested parties" the opportunity to submit comments
on the appeal, attend meetings between the appellants and agency officials, and obtain the agency's
final appeal decision. Omitting interested parties may simplify the process in some cases, but it
could also lead to more appeals being filed since people would have no alternative way to be

6. Exempting Project Decisions Made by Administration Officials

We strongly oppose allowing the Forest Service to evade the appeals process simply by having
Department of Agriculture Secretary Ann Veneman or Under Secretary Mark Rey sign the decision
documents. This is exactly what the Forest Service attempted to do in December 2001, when Mr. Rey
signed the record of decision for the Bitterroot Burned Area Recovery Project - one of the largest
salvage logging projects ever proposed by the agency. Environmentalists successfully argued in
federal court that this was an illegal end-run around the ARA. See The Wilderness Society vs.
Mark Rey, No. 01-219M, slip op. (D. Mont. Jan. 7, 2002). Montana U.S. District Judge Molloy sharply
criticized the agency's maneuver and enjoined the project. The proposed regulations are in stark
defiance of the court ruling in the Bitterroot case. The Forest Service appears to be making a
second attempt to circumvent the law, this time by creating a loophole in its regulations.

7. Exclusion of Actions from Notice, Comment, and Appeal

The draft regulations exempt all of the projects that the agency is categorically excluding from
NEPA regardless of whether or not they are implementing the forest plan. Since all actions on a
national forest must be consistent with a forest plan, this comment and appeals process should
cover virtually all projects on a national forest. We believe that the agency should provide notice,
comment and appeals for all projects that implement forest plans as provided for in the ARA. We
also believe that "insignificant" forest plan amendments not connected to a site specific decision
should be subject to comment and appeal because they in effect implement a forest plan. Sec.

In conclusion, we strongly urge the Forest Service to withdraw this proposal to weaken the Appeals
Reform Act regulations. People should not be denied the opportunity to express their views about
proposed Forest Service management projects, and to challenge agency decisions with which they
disagree. The proposal is fundamentally undemocratic and a betrayal of the millions of Americans
who care about their National Forests and are entitled to a voice in their management.


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