RESOURCES COMMITTEE BACKGROUND MEMO

Back to Hot Topics Page

“Information on Forest Service Decisions Involving Fuels Reduction Activities”
A Report by the General Accounting Office

A FOREST SERVICE ANOMALY. A hazardous fuels reduction project implemented on at risk National Forest lands face a significantly higher administrative appeals bar than the exact same project would encounter if implemented in Yellowstone National Park (Park Service), the Klamath Basin Wildlife Refuge (Fish and Wildlife Service), or the Canyons of the Ancients National Monument (BLM). That’s because the Forest Service is the only federal land management agency with an administrative appeals process memorialized in statute – a 1993 Appropriation Rider called the Appeals Reform Act. The Park Service and the Fish and Wildlife Service have no formal appeals in any form, meaning that organizations or individuals opposing wildfire mitigation activities on these lands must take objections straight to Court. The BLM does not have an administrative appeals process codified in federal statute, but it does have a pre-decisional objections process in regulation that gives interested parties a venue in which to seek administrative redress. The BLM process is widely viewed as being more collaborative, and less confrontational, than the quasi-judicial Appeals Reform Act that governs the Forest Service. The Healthy Forests Restoration Act would direct the Forest Service to create an objections process akin to that of the BLM.

FOREST SERVICE APPEALS AND HAZARDOUS FUELS REDUCTION. There is broad agreement that the decision making process that governs the management of the nation’s forests is too bureaucratic and slow-moving to respond to America’s forest health crisis -- a crisis manifesting itself in an exploding number of catastrophic wildfires and massive insect and disease outbreaks. Even in the face of catastrophic threats to communities, watersheds and cherished forest ecosystems, it can take upwards of several years for forest managers to satisfy all of the procedural and legal requirements associated with the implementation of a single forest restoration or wildfire mitigation project. A primary source of the Forest Service’s bureaucratic malaise is its administrative appeals process – again, a process unique to that agency. This process often stalls projects for 120 days, and sometimes months more, in addition to the months long analysis that precedes the appeals phase .

GAO ANALYSIS. At the request of Congressman Scott McInnis, and Senators Larry Craig and Gordon Smith, the General Accounting Office (GAO) prepared a comprehensive report, entitled Information on Forest Service Decisions Involving Fuels Reduction Activities, providing a quantitative assessment of the impact of Forest Service appeals on forest management activities. The analysis was requested in order to gain a stronger understanding about the extent of the impact of administrative appeals on efforts to reduce the breadth and destructive incidence of catastrophic wildfire and massive pest and pathogen outbreaks. The report quantifies the number of administrative appeals filed against Forest Service hazardous fuels reduction projects, and provides other important details about the outcome of those appeals, the nature of the projects that were appealed, and the identity of organizations that most often file administrative appeals against forest healthy projects. The GAO analyzed the number of hazardous fuels reduction projects that were appealed and/or litigated during FY 2001 and FY 2002.

KEY CONCEPTS. The National Environmental Policy Act provides for three levels of environmental analysis: the Environmental Impact Statement (EIS), the most rigorous form of environmental analysis; the Environmental Assessment (EA), the middling analysis level; and the Categorical Exclusion, the lowest analysis standard used for projects that are substantially non-obtrusive and insignificant in terms of environmental effects (like cutting Christmas trees and firewood).

Under the Appeals Reform Act and its implementing regulations and guidelines, as a rule only projects that are implemented using an EIS and EA are eligible for administrative appeal. As a general matter, hazardous fuels reduction projects involving a mechanical treatment component require an EIS or an EA, and are thus eligible for administrative appeal, while projects involving only a prescribed burn are typically documented under a Categorical Exclusion, and are thus not eligible for appeal This distinction is an important one, as the GAO study includes some discussion of prescribed burn projects covered by a Categorical Exclusion that legally cannot be appealed under the Forest Service appeals statute.

KEY FINDINGS.

1. 59% of Thinning Projects Appealed. In FY 2001 and FY 2002, opponents of forest thinning appealed 59% of all hazardous fuels reduction projects eligible for appeal under the Forest Service’s appeals statute. Of the 305 projects eligible for administrative appeal, 180 projects were challenged. Together, these projects covered nearly 1 million acres of at risk federal forestland. Each was delayed for at least 120 days, and sometimes months more. This 120-day delay is in addition to the years-long environmental analysis process that proceeds the appeals phase.

Environmental groups that loudly oppose legislative attempts at bringing the Forest Service’s appeals process more in line with that of the Bureau of Land Management have repeatedly downplayed the number of administrative appeals filed against forest management projects. With nearly 1 million acres worth of hazardous fuels reduction projects tied up in appeals during this two-year period, the GAO analysis crystallizes the fact that administrative appeals constitute a significant impediment to getting a handle on America’s forest health and wildfire crisis.

2. Community Protection Projects Targeted by Greens. Even thinning projects proposed near communities are appealed more often than not. 52% of thinning projects proposed near communities in the so-called Wildland Urban Interface (84 of 163) were appealed during this 2-year period.

Environmental groups commonly argue that if the Forest Service would focus thinning projects on treating forestlands near communities, there would be less conflict and fewer administrative appeals. The GAO’s finding about the large number of administrative appeals filed against projects focused on protecting communities from the horrors of catastrophic wildfire casts the credibility of that assertion into plain doubt. Actions speak louder than words, and the actions of environmental organizations as a whole show a pattern of obstruction, even towards projects focused on protecting homes and communities.

3. Environmental Appeals OVERWHELMINGLY Without Merit. Of the 180 wildfire mitigation projects appealed during the studied period, the reviewing officer “reversed” the decisions of a subordinate officer on only 19 occasions (10%).

This finding affirms the suspicion of many – namely, that administrative appeals are often frivolous objections by organizations with a philosophical bent against active forest management. Unfortunately, when the threat of wildfire is imminent or a large-scale insect outbreak is underway, a months-long delay during the consideration of an administrative appeal is just as damaging to the Forest Service as a defeat on the merits.

4. Environmental Groups are Chief Appellants of Forest Thinning. The overwhelming majority of administrative appeals analyzed by the GAO were filed by environmental advocacy organizations. Nationally, there were ONLY 7 organizations that filed more than 20 administrative appeals in this two year period: the Alliance for Wild Rockies, Ecology Center, Forest Conservation Council, Lands Council, National Forest Protection Alliance, Oregon Natural Resources Council, and the Sierra Club. Of the 432 appeals filed against the 180 projects, private individuals filed only 48 appeals, or 11% of the overall total.

5. ‘Analysis Paralysis’. The widespread filing of administrative appeals by environmental organizations has forced the Forest Service into an excessively cautious posture during the analysis and documentation phase preceding the administrative appeals process. The Chief of the Forest Service has dubbed this phenomenon “analysis paralysis.” The GAO’s findings show a clear pattern of the Forest Service taking time-consuming additional steps to “bullet-proof” analysis and documentation in those Regions where the agency has experienced the greatest number of administrative appeals. In Montana and Idaho, for example, where environmental groups and others appealed 90% of all projects eligible for appeal in this two-year span, the Forest Service went to the additional length of completing an Environmental Impact Statement (the most rigorous documentation process) for wildfire mitigation projects nearly 4-times as often as the next closest Region. In the South, by contrast, where 38% of projects eligible for appeal were actually appealed, the Forest Service completed ZERO Environmental Impact Statements on fire-prevention projects during this time-frame.

The threat of administrative appeals has forced the agency to be overly-focused on insulating its analysis and documentation from legal assault. Instead of conducting analysis sufficient to ensure that hazardous fuels reduction projects are implemented in an environmentally sensitive manner, the Forest Service’s environmental analysis increasingly take on the appearance of a legal brief, as the agency seeks to protect its decisions from hostile legal attacks and slick environmental lawyering. With 190 million acres of federal forestland at risk to catastrophic wildfire, this “bullet-proofing” phenomenon helps explain why the federal government treats just over 2 million acres a year.

Back to Hot Topics Page