RESOURCES COMMITTEE BACKGROUND MEMO
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“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.
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