Forest Service: Information on Appeals, Objections, and Litigation Involving Fuel Reduction Activities, Fiscal Years 2006 through 2008
Published: 2010-03-04T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: Increases in the number and intensity of wildland fires have led the Department of Agriculture's Forest Service to place greater emphasis on thinning forests and rangelands to reduce the buildup of potentially hazardous vegetation that can fuel wildland fires. The public generally has an opportunity to challenge agency hazardous fuel reduction decisions with which it disagrees. Depending on the type of project being undertaken, the public can file a formal objection to a proposed decision, or can appeal a decision the agency has already made. Appeals and objections must be reviewed by the Forest Service within prescribed time frames. Final decisions may also generally be challenged in federal court. GAO was asked, among other things, to determine, for fiscal years 2006-2008, (1) the number of Forest Service fuel reduction decisions and the associated acreage; (2) the number of decisions subject to appeal and objection, the number appealed, objected to, and litigated, and the associated acreage; and (3) the outcomes of appeals, objections, and litigation, and the extent to which appeals and objections were processed within prescribed time frames. In doing so, GAO conducted a nationwide survey of forest managers and staff, interviewed officials in the Forest Service's regional offices, and reviewed documentation to corroborate agency responses. GAO requested, but did not receive, comments from the Forest Service on a draft of this report.
section_title: What GAO Found
paragraphs: Through a GAO-administered survey and interviews, Forest Service officials reported the following information: (1) In fiscal years 2006 through 2008, the Forest Service issued 1,415 decisions involving fuel reduction activities, covering 10.5 million acres. (2) Of this total, 1,191 decisions, covering about 9 million acres, were subject to appeal and 217--about 18 percent--were appealed. Another 121 decisions, covering about 1.2 million acres, were subject to objection and 49--about 40 percent--were objected to. The remaining 103 decisions were exempt from both objection and appeal. Finally, 29 decisions--about 2 percent of all decisions--were litigated, involving about 124,000 acres. (3) For 54 percent of the appeals filed, the Forest Service allowed the project to proceed without changes; 7 percent required some changes before being implemented; and 8 percent were not allowed to be implemented. The remaining appeals were generally dismissed for procedural reasons or withdrawn before they could be resolved. Regarding objections, 37 percent of objections resulted in no change to a final decision; 35 percent resulted in a change to a final decision or additional analysis on the part of the Forest Service; and the remaining 28 percent were set aside from review for procedural reasons or addressed in some other way. And finally, of the 29 decisions that were litigated, lawsuits on 21 decisions have been resolved, and 8 are ongoing. Of the lawsuits that have been resolved, the parties settled 3 decisions, 8 were decided in favor of the plaintiffs, and 10 were decided in favor of the Forest Service. All appeals and objections were processed within prescribed time frames--generally, within 90 days of a decision (for appeals), or within 60 days of the legal notice of a proposed decision (for objections).

section_title: Letter
paragraphs: Much attention has been paid in recent years to the condition of our  nation’s forests, in large part because of increases in the number and  intensity of wildland fires. In an effort to reduce the risk of fire, federal  land management agencies—including the Forest Service in the  Department of Agriculture—are placing greater emphasis on thinning  forests and rangelands to help reduce the buildup of potentially hazardous  fuels. The agencies have placed particular emphasis on fuel reduction in  areas where human development meets or intermixes with undeveloped  wildland, known as the wildland-urban interface.
Like many other land management activities, hazardous fuel reduction  activities are typically subject to the National Environmental Policy Act of  1969 (NEPA). Under NEPA, federal agencies are to evaluate the likely  environmental effects of proposed projects through an environmental  assessment or, if projects are likely to significantly affect the environment,  a more detailed environmental impact statement. If, however, the agency  determines that activities of a proposed project fall within a category of  activities the agency has already determined have no significant  environmental impact—called a categorical exclusion—then the agency  generally need not prepare an environmental assessment or environmental  impact statement. The Forest Service then generally issues a final decision  for each project in the form of a Record of Decision, a Decision Notice, or  a Decision Memo, depending on whether the decision stems from an  environmental impact statement, environmental assessment, or  categorical exclusion, respectively. During the early planning stage of  these environmental reviews, the public has opportunities to get involved  by, for example, submitting written comments on the proposed project.  Depending on the type of project, the public can generally challenge either  the proposed action or the final decision by filing an objection or an  appeal, respectively, with the Forest Service. These objections or appeals  must be reviewed by the Forest Service within prescribed time frames.  Final decisions may also generally be challenged in federal court.
Much debate has focused on the extent and frequency of appeals and  litigation of fuel reduction activities and their effect on agency activities.  On the one hand, critics have asserted that such challenges to agency  activities are stopping or unnecessarily slowing the decision-making  processes of the Forest Service and its efforts to reduce fuels on federal  lands. This opposition to fuel reduction activities is sometimes viewed as  “frivolous” and alleged to be greatly increasing the costs of managing the  national forests. Supporters of the administrative appeals process, on the  other hand, have indicated that appeals have not been excessive or  unwarranted and that few appeals are frivolous. Supporters further assert  that Congress intended the federal land management process to include  administrative reviews of agency decisions to (1) ensure public  participation in the decision-making process and (2) ensure that agency  managers adequately consider the various factors and policies affecting  the environmental health of the nation’s lands.
In 2003, we issued a report on appeals and litigation of Forest Service fuel  reduction projects during fiscal years 2001 and 2002. Since that time,  however, the legal and procedural landscape has changed considerably.  For example, at the time of our 2003 report, fuel reduction decisions  stemming from categorical exclusions were generally not subject to  appeal; however, as the result of subsequent litigation, the Forest Service  was required to allow appeals of these types of decisions. In addition,  since the time period covered by that report, the Forest Service has  introduced new categorical exclusions, including one specific to fuel  reduction. And finally, in 2003, the Healthy Forests Restoration Act  (HFRA) exempted certain fuel reduction projects from appeal, instead  subjecting them to objection before the decision is final.
In the context of these legal and procedural changes, you asked us to  gather and report data on appeals, objections, and litigation related to  Forest Service fuel reduction activities. This report provides information  on (1) the number and type of Forest Service decisions involving  hazardous fuel reduction activities signed in fiscal years 2006 through 2008  and the acreage associated with those decisions; (2) the number of these  decisions that were subject to the appeal or objection process; the number  that were appealed, objected to, or litigated; and the acreage associated  with those decisions; (3) the outcomes of these appeals, objections, and  lawsuits, including whether they were processed within prescribed time  frames, and the identities of the appellants, objectors, and plaintiffs;   (4) the treatment methods and contract types associated with fuel  reduction decisions, the associated acreage, and how frequently each  treatment method and contract type was appealed, objected to, or  litigated; and (5) the number of decisions involving hazardous fuel  reduction activities in the wildland-urban interface and inventoried  roadless areas, the associated acreage, and how frequently these  decisions were appealed, objected to, or litigated. This letter provides  national data on these issues, while appendixes II through IX provide  information by Forest Service region. Appendixes X and XI provide more  information on the nature and use of categorical exclusions related to fuel  reduction decisions.
In conducting our review, we administered a Web-based survey to all 108  national forests that issued decisions that involved hazardous fuel  reduction activities in fiscal years 2006 through 2008. The survey was used  to gather information about each of the decisions, including the type of  environmental analysis used, acres involved, treatment methods and  contract types used, the extent to which the decisions included activities  in the wildland-urban interface and inventoried roadless areas, and  specific information about decisions subject to the predecisional objection  process. We obtained a 100 percent response rate from the national  forests. To gather specific details about appeals and litigation of decisions  with hazardous fuel reduction activities, we conducted semistructured  interviews with officials in each of the Forest Service’s nine regions. For  both the Web-based survey and the semistructured interviews, to test the  accuracy and reliability of the responses provided by officials, we verified  the accuracy of a random sample of responses by comparing them with  decision documents and found that the information was sufficiently  reliable for our reporting purposes. Appendix I provides details on the  scope and methodology of our review. Appendix XII includes a copy of the  survey sent to national forests.
We conducted our work from October 2008 through February 2010, in  accordance with all sections of GAO’s Quality Assurance Framework that  are relevant to our objectives. The framework requires that we plan and  perform the engagement to obtain sufficient and appropriate evidence to  meet our stated objectives and to discuss any limitations in our work. We  believe that the information and data obtained, and the analysis  conducted, provide a reasonable basis for any findings and conclusions in  this product.
subsections: section_title: Background
paragraphs: The Forest Service is responsible for managing over 192 million acres of  public lands—nearly 9 percent of the nation’s total surface area and about  30 percent of all federal lands in the United States. In carrying out its  responsibilities, the Forest Service traditionally has administered its  programs through nine regional offices, 155 national forests, 20 grasslands,  and over 600 ranger districts (each forest has several districts). The Forest  Service’s implementation, management, and oversight of fuel reduction  activities tend to be decentralized and vary by region, although all  activities must be carried out under applicable laws. Figure 1 shows a  map of the national forests and Forest Service regions.
Forest Service projects intended to reduce fuels and restore or maintain  desired vegetation conditions generally use prescribed burning, in which  fires are deliberately set by land managers, and/or mechanical treatments,  in which equipment such as chain saws, chippers, bulldozers, or mowers is  used to cut vegetation. Such mechanical treatment may include logging to  remove commercial timber. Other approaches include applying chemical  herbicides, using grazing animals such as cattle and goats, and allowing  the public to remove firewood by hand. To carry out its fuel reduction  work, the Forest Service may use agency staff but more commonly  contracts it out. The agency generally uses three types of contracts— timber sale contracts, service contracts, and stewardship contracts—to  accomplish fuel reduction work. Timber sale contracts are awarded to  individuals or companies to harvest and remove trees from federal lands  under its jurisdiction. Service contracts are awarded to contractors to  perform specific tasks, such as thinning trees or clearing underbrush.  Stewardship contracts are generally awarded to contractors who perform  both timber harvesting and service activities, and include contracts under  which the agency uses the value of commercial products, such as timber,  to offset the cost of services received, such as thinning, stream  improvement, and other activities.
Controversy has surrounded the issue of fuel reduction for some time,  particularly in areas where federal lands surround or are adjacent to  human development and communities—the wildland-urban interface—and  in inventoried roadless areas. Roadless areas have received special  attention for decades, as some argue that these areas should be available  for appropriate development and timber harvesting, while others believe  that the areas should remain roadless to preserve the special values that  their condition provides, such as clean water and undeveloped wildlife  habitats.
Forest Service hazardous fuel reduction activities are typically subject to  one of two different internal administrative review processes, each of  which has a specific procedure through which the public can challenge the  agency’s decisions or proposed decisions to conduct the activities.  Specifically:    Postdecisional administrative appeals process. The Forest Service has  provided an administrative appeals system for review of agency decisions,  under certain circumstances, for over 100 years. Although the specific  requirements of the appeals system have changed over the years, the  Appeals Reform Act of 1993 established the appeals process pertinent to  fiscal years 2006 through 2008––the time period covered by our review.  When the Forest Service issues a public notice in a newspaper of record of  a proposed action, the public has either 30 or 45 days to comment,  depending on the type of NEPA analysis document prepared. Once the  agency issues a decision, the public has 45 days to file appeals; however,  only those individuals who were involved in the public comment process  through submission of written or oral comments or by otherwise notifying  the Forest Service of their interest in the proposed action may file an  appeal. Once the 45-day time frame for filing appeals has expired, the  Forest Service must review all appeals and issue a response to each within  an additional 45 days. Appeals can result in decisions being affirmed, in  which case the Forest Service can proceed with the project as planned, or  in decisions being reversed in whole or in part, in which case the agency  may revise or even cancel the affected activities. The official (known as  the Appeal Deciding Officer) who determines the outcome of the appeal  must be, at least, the next higher level supervisor of the individual who  made the original decision. There is no further administrative review of  the Appeal Deciding Officer’s decision by any other Forest Service or  Department of Agriculture official.
The types of decisions that can be appealed have changed since GAO last  reported on this issue in 2003. In 2003, the Forest Service added several  new categorical exclusions related to vegetation management (including  one specific to hazardous fuel reduction) that it exempted from appeal.  However, as the result of subsequent litigation challenging these  exemptions, the Forest Service ultimately was required to allow the public  to appeal many (though not all) of these decisions during fiscal years 2006  through 2008, the time period covered by our current review.
Predecisional administrative objection process. In 2003, HFRA required  the Forest Service to establish an alternative process for authorizing  certain hazardous fuel reduction projects, including an alternative  predecisional objection process in lieu of the appeals process for certain  projects. HFRA authorizes the public to file objections to a proposed  project before the agency issues a final decision on the project, instead of  the traditional appeals process where the administrative review occurs  after the agency’s final decision has been made. According to the Forest  Service, this objection process was intended to expedite the  implementation of fuel reduction projects and to encourage early public  input during the planning process. Only those parties who have previously  submitted written comments specific to the proposed project may file  objections. (The public has an opportunity to provide these written  comments during scoping or other public comment periods.) The public  must file objections with the reviewing officer—the next higher level  supervisor of the person responsible for the proposed action—within 30  days following the publication date of the legal notice of the proposed  environmental assessment or environmental impact statement. (Decisions  that are subject to objection cannot use categorical exclusions as the basis  for the decision.) If no objection is filed within the 30-day time period, the  decision may be finalized on, but not before, the fifth business day  following the end of the objection-filing period. If an objection is filed, the  Forest Service must issue a written response to the objector addressing  the objection within 30 days following the end of the objection-filing  period. The reviewing officer may hold a meeting to discuss issues raised  in the objection and any potential resolution. There are several ways the  Forest Service addresses an objection. The objection can (1) be set aside  from review, (2) be reviewed by the Forest Service resulting in a change to  the final decision, (3) be reviewed by the Forest Service resulting in no  change to the final decision, or (4) result in the reviewing officer directing  the appropriate Forest Service official to complete additional analysis  prior to issuing a final decision. An objection may be set aside from review  for procedural reasons—if, for example, the objection is not received  within the allowed 30-day time period, or the objecting individual or  organization did not submit written comments during scoping or other  public comment opportunities. There is no further administrative review  by any other Forest Service or Department of Agriculture official of the  reviewing officer’s written response to an objection.
Table 1 compares the appeals and objection processes.
Some decisions, however, were subject to neither the appeal nor the  objection process during the time of our review. As noted, the Forest  Service was required to allow appeals of many fuel reduction decisions  based on categorical exclusions, but was not required to allow appeals  on all such decisions—meaning that certain decisions based on  categorical exclusions remained exempt from appeal. These decisions  were also exempt from the objection process because HFRA requires  that fuel reduction decisions subject to objection use environmental  assessments or environmental impact statements rather than  categorical exclusions.
section_title: Number and Type of Decisions Involving Hazardous Fuel Reduction Activities in Fiscal Years 2006 through 2008 and the Associated Acreage
paragraphs: For fiscal years 2006 through 2008, national forest managers reported  1,415 decisions involving hazardous fuel reduction activities, affecting  10.5 million acres of national forest land. Most of these decisions  were based on categorical exclusions, although decisions based on  environmental assessments represented the most acreage of all  decision types. Table 2 shows the number of decisions and associated  acreage, by decision type.
Appendix II provides greater detail on the number of decisions and  associated acreage for each Forest Service region.
section_title: Number of Decisions Involving Hazardous Fuel Reduction Activities That Were Subject to Appeal or Objection; Number of Decisions Appealed, Objected to, or Litigated; and Associated Acreage
paragraphs: Of the 1,415 decisions in our review, 1,191—about 84 percent—were  subject to the appeals process. In contrast, only 121 decisions—8.5  percent—were subject to the objection process. However, the rate at  which decisions subject to the objection process were challenged was  higher than for decisions under the appeals process. Specifically, 40  percent of decisions subject to objection were objected to, compared  with the 18 percent appeal rate for decisions subject to appeal. Table 3  shows, for all decisions covered by our review for fiscal years 2006  through 2008, the number of appeals, objections, and litigation  associated with each decision type.
Appendix III provides greater detail on the number of appeals,  objections, and litigation for each Forest Service region.
In addition to the introduction of the objection process, our survey data  reflect two important changes that have occurred since our 2003  report: (1) the extent to which activities associated with categorical  exclusions are subject to the appeals process and (2) the decrease in  the use of the categorical exclusion for hazardous fuel reduction to  authorize hazardous fuel reduction activities. Specifically:    Extent to which categorical exclusions were subject to appeal. At the time  of our 2003 report, decisions using categorical exclusions were generally  not subject to appeal, and in that report we noted that 99 percent of fuel  reduction decisions using categorical exclusions in fiscal years 2001 and  2002 were exempt from appeal. Also in 2003, the Forest Service introduced  several new categorical exclusions that were exempt from appeal,  including one categorical exclusion specific to fuel reduction activities.  Beginning later that year, however, the agency’s ability to exempt  decisions using categorical exclusions from appeal was challenged in   court. As a result of this litigation, the Forest Service was required to  allow the public to appeal decisions containing any of 11 types of  categorically excluded activities, including fuel reduction—and thus, most  fuel reduction decisions in our survey that were made using categorical  exclusions were appealable by the public. Specifically, 89 percent of the  categorical exclusions identified in our survey were subject to appeal in  fiscal years 2006 through 2008, in contrast to the 1 percent that were  subject to appeal during our 2003 review. The remaining 11 percent of  categorical exclusions in our current review—a total of 103 decisions— were identified by survey respondents as exempt from appeal because  they did not contain the activities covered by the litigation. Subsequently,  in 2009 the U.S. Supreme Court overturned the lower court’s ruling on  procedural grounds, allowing the Forest Service to utilize the provisions of  its regulations that exempt categorically excluded decisions from appeal.  Appendix X contains data on the type and frequency of the categorical  exclusions represented in our survey.
Decrease in the use of the categorical exclusion for hazardous fuel  reduction. Although Forest Service regulations contain a specific  categorical exclusion under which hazardous fuel reduction activities can  be authorized, this was not the most commonly reported categorical  exclusion in our survey of decisions involving hazardous fuel reduction  activities. Instead, the most commonly reported categorical exclusion was  one intended for timber stand and/or wildlife habitat improvement. Our  survey data show that the total number of decisions authorized under the  categorical exclusion for hazardous fuel reduction decreased greatly over  the period covered by our survey, while at the same time, the use of the  categorical exclusion for timber stand and/or wildlife habitat improvement  increased. Specifically, use of the categorical exclusion for hazardous fuel  reduction decreased from 214 in fiscal year 2006 to 28 in fiscal year 2008,  while the use of the categorical exclusion for timber stand and/or wildlife  habitat improvement increased from 145 in fiscal year 2006 to 167 in fiscal  year 2008.
This decrease in the use of the categorical exclusion for hazardous fuel  reduction may have resulted in large part from the chief of the Forest  Service’s response to a court order in 2007. In this response the chief  directed that no new decisions should be made under the categorical  exclusion for hazardous fuel reduction after December 2007. Furthermore,  he directed that no additional contracts be initiated to implement projects  authorized under this authority—meaning that projects that were not  under way did not start, even if a final decision had already been issued.  Under the chief’s direction, projects that were near completion could  proceed. Of the 379 decisions in our survey originally authorized under the  categorical exclusion for hazardous fuel reduction, respondents reported  that 207—or about 55 percent—were affected by the chief’s directive.  Although we did not systematically gather information on what happened  to projects subject to the court decision, respondents indicated that they  took a variety of approaches, including the following:    using a different categorical exclusion, such as the categorical exclusion  for timber stand and/or wildlife habitat improvement, to authorize the  project;    preparing an environmental assessment subject to the appeals process;    stopping or slowing project implementation; and    preparing an environmental assessment subject to the predecisional  objection process, under HFRA.
Additionally, the rate at which decisions were litigated was about the  same—2 percent—for decisions that were subject to the Forest Service’s  traditional appeals process as for decisions authorized under HFRA—even  though the agency’s expectation was that HFRA would reduce the  likelihood of litigation. Of the 29 litigated decisions in our study, 26 had  been subject to appeal, representing 2 percent of the 1,191 decisions  subject to appeal; the remaining 3 litigated decisions had been subject to  objection, likewise representing 2 percent of the 121 decisions subject to  objection.
section_title: Outcomes of Appeals, Objections, and Litigation of Decisions with Hazardous Fuel Reduction Activities; Associated Time Frames; and Identities of Appellants, Objectors, and Plaintiffs
paragraphs: In fiscal years 2006 through 2008, of the 298 appeals filed, the Forest  Service upheld its earlier decision in the majority of the cases without  requiring any changes to the decision. Of the 101 objections submitted, the  outcome was more evenly divided between those objections resulting in a  change to the decision and those that did not. According to time frame  information provided by survey respondents, all appeals and objections  were processed within the prescribed time frames. For litigated decisions  resolved at the time of our review, the Forest Service prevailed slightly  more often than the plaintiffs.
subsections: section_title: Outcomes of Appeals, Time Frames, and Identities of Appellants
paragraphs: Of the 298 appeals filed on appealable decisions from fiscal years 2006  through 2008,    For 160 appeals, the decisions were affirmed—that is, allowed to  proceed—with no changes.
For 22 appeals, the decisions were affirmed with specified changes.
For 24 appeals, the decisions were reversed —that is, not allowed to  proceed—based on issues raised by the appellants.
A total of 91 appeals were dismissed for various reasons, including     38 appeals that were resolved informally, of which 30 appeals were  withdrawn by the appellant and 8 decisions were withdrawn by the  agency (when an appeal is resolved informally, changes may or may  not be made to the decision);   53 appeals that were dismissed without review, mostly for failing to  meet procedural requirements, such as timeliness—however, 23 of  these appeals were dismissed without review because, subsequent to  receiving the appeal, the agency official who made the decision  decided to withdraw the decision;   For 1 appeal, the outcome could not be determined based on  documentation in the agency’s regional files, according to an agency  official.
According to time frame information provided by Forest Service officials,  all appeals of fiscal year 2006 through 2008 decisions were processed  within the time frames prescribed in applicable laws and regulations. See  appendix IV for detailed information on appeal outcomes for each Forest  Service region.
The 298 appeals were filed by 217 appellants. This total includes appeals  by 88 different interest groups, mostly environmental groups, and 129  individuals. Of the 88 interest groups, 10—Alliance for the Wild Rockies,  Biodiversity Conservation Alliance, John Muir Project of the Earth Island  Institute, Native Ecosystems Council, Oregon Wild, Ouachita Watch  League, Sierra Club, The Lands Council, Utah Environmental Congress,  and the WildWest Institute—each appealed 10 or more decisions.  Appendix VI lists each interest group that appeared as an appellant in  fiscal years 2006 through 2008 and the number of decisions for which each  appellant filed appeals in each region. To protect the privacy of individual  appellants, we do not list their names, but in appendix VI we provide  information on the number of decisions appealed by individuals in each  region.
section_title: Outcomes of Objections, Time Frames, and Identities of Objectors
paragraphs: Of the 101 objections filed for 49 decisions from fiscal years 2006 through  2008,    38 objections resulted in no change to the final decision.    31 objections resulted in a change to the final decision.    4 objections resulted in the Forest Service having to conduct additional  analysis.    15 objections were set aside from review.    13 objections were addressed some other way; for example, several  agency respondents explained that they addressed objector’s concerns by  both agreeing to make a change to the final decision and by setting the  objection aside from review. Rather than setting it aside from review for  procedural reasons, however, the decisions were set aside because the  objector withdrew the objection after the Forest Service agreed to make  changes to the final decisions.
For objections that the Forest Service does not set aside, the Forest  Service reviewing officer is required to respond in writing. Prior to issuing  a written response, the objector or reviewing officer may request a  meeting to discuss the issues that were raised in the objection and a  possible resolution. According to some Forest Service officials we spoke  with, these meetings have been used to further satisfy public concerns;  however, because meetings are at the discretion of the reviewer, objectors  with whom the reviewer decides not to meet may feel that their concerns  were not adequately addressed, regardless of the outcome. For example,  the Forest Service received 22 objections to the Middle East Fork  Hazardous Fuel Reduction decision on the Bitterroot National Forest in  west central Montana and east central Idaho, one of the first and,  according to Forest Service officials, most contentious decisions  authorized under HFRA authority in the Northern Region. One objector  requested a meeting with the Forest Service and others expressed a  willingness to meet, but the reviewing officer chose not to hold meetings,  stating that their objections did not require additional clarification and  that a private consultant with whom the forest contracted had determined  that additional discussions would not resolve the objector’s concerns. The  decision was ultimately litigated. In other cases, however, respondents  reported that such meetings successfully addressed objectors’ concerns,  sometimes resulting in objectors withdrawing their objections.
However, we also determined that different regions follow different  approaches in addressing objectors’ concerns. For example, an official in  the Pacific Southwest Region told us that officials generally meet with the  objectors associated with valid objections (those that are not set aside for  procedural reasons), with the goal of informally resolving the objections  and having them subsequently withdrawn by the objectors. In contrast, an  official in the Northern Region told us that while the region seeks to  resolve objections informally, unlike the Pacific Southwest Region, it does  not seek to have objectors subsequently withdraw their objections, and  none have done so. Seeking to have objectors withdraw their objections,  as the Pacific Southwest Region has done, may have important  implications for subsequent litigation because, according to Forest Service  officials, under HFRA and its implementing regulations, an objector that  withdraws an objection has no standing to obtain judicial review of the  Forest Service’s final decision.
According to time frame information provided by survey respondents, the  final decisions for all proposals subject to the objection process from  fiscal year 2006 through 2008 were signed in accordance with the time  frames set forth by applicable laws and regulations. However, while  officials are required to respond to objections within certain time frames,  there is no limitation on the amount of time allowed to make a final  decision. Of the 49 decisions for which objections were filed, 25 were  signed between 35 days and 3 months of legal publication date of the  proposed action. The remaining 24 were signed more than 3 months after  the legal publication date, including 3 cases in which the final decision was  signed more than a year after the legal publication date of the proposed  action.
The 101 objections were filed by 37 organizations and 41 individuals. Of  the 37 organizations, 3—the Center for Biological Diversity, the Idaho  Conservation League, and the WildWest Institute— each objected to 5 or  more decisions. Appendix VI lists each group that filed objections in fiscal  years 2006 through 2008 and the number of decisions for which objections  were filed in each region. As with appeals, in appendix VI we do not list  the names of individual objectors, but do show the number of proposed  decisions objected to by individuals in each region.
section_title: Outcomes of Litigation and Identities of Plaintiffs
paragraphs: Of the 29 decisions that were litigated from fiscal years 2006 through 2008,  we are able to report the outcome for 21 of the lawsuits because they had  been resolved at the time of our review. According to regional officials,  lawsuits for 3 of these 21 decisions were dismissed because the plaintiffs  and the Forest Service agreed to settle their claims. District courts reached  an outcome on the 18 additional decisions, with 8 decided favorably to the  plaintiffs and 10 decided favorably to the Forest Service. Lawsuits on the  remaining 8 decisions were continuing at the time of our review.
In the 29 litigated decisions, 24 interest groups and 11 individuals were  plaintiffs. The interest groups were primarily environmental groups, with  three groups—Alliance for the Wild Rockies, Native Ecosystems Council,  and the WildWest Institute—each acting as plaintiff in 5 or more decisions.  Of the 29 litigated decisions, plaintiff groups and individuals had  previously submitted appeals on 24 of the decisions and objections on 3 of  the decisions during the administrative process. The remaining 2 litigated  decisions were subject to appeal, but the plaintiffs did not submit an  appeal during the administrative process. Appendix VI lists each group  that acted as a plaintiff in fiscal years 2006 through 2008 and the number of  decisions for which lawsuits were filed by each group within each Forest  Service region. To protect the privacy of individual plaintiffs, we do not  list their names, but in appendix VI provide information on the number of  decisions litigated by individuals in each region.
section_title: Treatment Methods and Contract Types Associated with Fuel Reduction Decisions; the Number of Appeals, Objections, and Lawsuits by Treatment Method and Contract Type; and the Associated Acreage
paragraphs: Prescribed burning was the most frequently used treatment method  associated with the fuel reduction decisions included in our study,  followed by mechanical treatment and commercial logging. Of these three  methods, prescribed burning was the method most often challenged  through appeals and objections; however, commercial logging was  challenged at the highest rate, considering both appeals and objections.  Table 4 shows, for all treatment methods in our study, the number and  percentage of, and acreage associated with, appeals, objections, and  litigation.
Appendix VII provides additional information on fuel reduction methods  used and the number of appeals, objections and lawsuits by treatment  method, for each Forest Service region.
Commercial timber sale contracts were the most frequent contract type  used to implement the decisions included in our study, and were the type  most often challenged through appeals and objections. Decisions using  stewardship contracting, however, were challenged at a higher rate than  the other contract types, considering both appeals and objections. Table 5  shows, for all the decisions included in our study, the number and  percentage of contract types, and acreage associated with, appeals,  objections, and litigation.
Appendix VIII provides additional information on the contracting methods  used for decisions included in our study and the appeal, objection, and  litigation rates for each Forest Service region.
section_title: Decisions Involving Fuel Reduction Activities in the Wildland-Urban Interface and Inventoried Roadless Areas; the Number of Appeals, Objections, and Lawsuits on Those Decisions; and the Associated Acreage
paragraphs: Of the 1,415 decisions in our review, respondents identified 954 decisions  that included activities in the wildland-urban interface and 169 decisions  that included activities in inventoried roadless areas. Both types of  decision were appealed at about the same rate, while decisions involving  inventoried roadless areas were objected to at a slightly higher rate than  those involving the wildland-urban interface. Table 6 shows, for both  wildland-urban interface and inventoried roadless areas, the number and  percentage of, and acreage associated with, appeals, objections, and  litigation.
Regarding fuel reduction activities in inventoried roadless areas, the  majority of decisions in our study involved no road construction in the  roadless area––which is a primary concern related to hazardous fuel  reduction activities in roadless areas. About 10 percent included  temporary road construction or other road construction activity, with one  decision involving the construction of a permanent road in an inventoried  roadless area. Appendix IX provides information on the number of  decisions with fuel reduction activities in inventoried roadless areas and  the number of appeals, objections, and lawsuits for such decisions in each  Forest Service region.
section_title: Concluding Observations
paragraphs: Much has changed since we last reported on appeals and litigation of fuel  reduction activities 7 years ago. One of the most significant changes to the  process has been the passage of HFRA, which has provided a new  approach for public challenges of fuel reduction projects by allowing the  opportunity to formally object to decisions before they become final,  rather than waiting to file appeals until after the decisions are made.  Although the passage of HFRA was seen as an important new tool for  streamlining fuel reduction decisions, our review indicates that the impact  of the act appears to be limited. Most notably, fuel reduction decisions that  used HFRA authority represented less than 10 percent of decisions signed  during fiscal years 2006 through 2008. As a result, despite the  opportunities HFRA introduced for a new approach to the administrative  review process, in practice most decisions remained subject to the Forest  Service’s traditional postdecisional appeals process. In addition, although  the agency’s expectation was that HFRA would reduce litigation of fuel  reduction decisions, our review shows that HFRA and non-HFRA  decisions were litigated at about the same rate of 2 percent.
Another area of ongoing change is the dispute over the Forest Service’s  ability to exempt categorically excluded decisions from appeal. Although  most of these decisions were subject to appeal during the years we  examined, the Supreme Court’s 2009 ruling means that the regulation  exempting categorically excluded decisions from appeal is once again in  effect. However, two factors suggest ongoing uncertainty about this issue.  First, the Supreme Court’s ruling was made on procedural grounds rather  than on the merits of the case—meaning that the court did not rule on  whether the regulation is consistent with the Appeals Reform Act,  allowing for the possibility of future challenges to the regulation. Second,  even though the regulation survived the recent lawsuit, the Forest Service  is considering changes to it in light of, among other things, the litigation it  has engendered. Thus, the ultimate fate of the regulation—and the public’s  ability to appeal categorically excluded decisions—remains uncertain.
section_title: Agency Comments and Our Evaluation
paragraphs: We provided a draft of this report to the Forest Service for comment. The  Forest Service did not provide comments, although it did provide technical  corrections which we incorporated as appropriate.
We are sending copies of this report to the Secretary of Agriculture; the  Chief of the Forest Service; appropriate congressional committees; and  other interested parties. The report also will be available at no charge on  the GAO Web site at http://www.gao.gov.
If you or your staff members have questions about this report, please  contact me at (202) 512-3841 or mittala@gao.gov. Contact points for our  Offices of Congressional Relations and Public Affairs may be found on the  last page of this report. Key contributors to this report are listed in  appendix XIII.
section_title: Appendix I: Objectives, Scope, and Methodology
paragraphs: We examined (1) the number and type of Forest Service decisions  involving hazardous fuel reduction activities signed in fiscal years 2006  through 2008; (2) the number of these decisions that were objected to,  appealed, or litigated, and the acreage associated with those decisions;   (3) the outcomes of these objections, appeals, and lawsuits, including  whether they were processed within prescribed time frames, and the  identities of the objectors, appellants, and plaintiffs; (4) the treatment  methods and contract types associated with fuel reduction decisions, and  how frequently the different methods and types were objected to,  appealed, and litigated; and (5) the number of decisions involving  hazardous fuel reduction activities in the wildland-urban interface (WUI)  and inventoried roadless areas (IRA), and how frequently these decisions  were objected to, appealed, and litigated. To address our objectives, we  implemented a nationwide, Web-based survey of Forest Service officials,  to collect information about all fuel reduction decisions signed in fiscal  years 2006 through 2008 (See appendix XII for a copy of the survey). We  supplemented the survey with a semistructured interview of officials in all  nine Forest Service regions to gather additional details about time frames,  outcomes and identities related to appeals and litigation of fuel reduction  decisions. Details about this process are described below.
To identify Forest Service decisions involving hazardous fuel reduction  activities signed in fiscal years 2006 through 2008, we asked the agency’s  Ecosystem Management Coordinator to query a Forest Service database  designed to track decision planning, appeals, and litigation for all Forest  Service decisions—-the Planning, Appeals, and Litigation System (PALS).  This official queried the PALS database using the following criteria:   (1) decisions signed in fiscal years 2006 through 2008, and (2) decisions  that included fuels management as a purpose and/or one or more fuel  treatment activities. This initial query identified 1,437 decisions in 108  national forest system units.
Because PALS was not designed to include all information we sought as  part of our review—including information on the number of acres treated,  treatment methods and contract types used, and decisions involving  activities in the wildland-urban interface or in inventoried roadless areas— we determined that a nationwide survey would be necessary. We began  our survey effort by ensuring that we had identified the correct universe of  fuel reduction decisions. After reviewing the list of fuel reduction  decisions from PALS and correcting for any obvious duplication and other  errors, we sent a list of each national forest’s fuel reduction decisions to  the corresponding forest supervisor’s office. We asked the supervisor or  cognizant official to verify the accuracy of our list, removing any decisions  that did not meet our criteria (i.e, that were not signed in fiscal years 2006  through 2008, or that did not involve any hazardous fuel reduction  activities), and adding decisions that met our criteria but did not appear in  PALS. At this time, we also asked the supervisor or cognizant official to  identify Forest Service employees most knowledgeable about these  decisions. A total of 1,415 decisions, issued by 108 national forests, were  determined to fit our criteria. We gave recipients 3 weeks to respond to  our request for information and granted extensions as needed. We  obtained a 100 percent response rate from the national forests.
To determine the characteristics of each fuel reduction decision, we  subsequently administered a Web-based survey to those Forest Service  employees identified by each forest supervisor or cognizant official as  most knowledgeable about the decisions at all 108 national forests that  issued decisions with hazardous fuel reduction activities in fiscal years  2006 through 2008. Appendix XII contains a copy of the survey used to  gather these data. The survey asked respondents to provide information  about each of the decisions, including the type of environmental analysis  used, acres involved, treatment methods and contract types used, the  extent to which the decisions included activities in the wildland-urban  interface and inventoried roadless areas, and detailed information about  the outcomes of those decisions subject to the predecisional objection  process.
The Forest Service does not have a uniform definition of a hazardous fuel  reduction activity, a fact that could affect the information that forest  managers reported to us. Many activities have the practical effect of  reducing fuels, but their stated purpose may be for something other than,  or in addition to, fuel reduction. For example, the cutting and gathering of  firewood or forest products to provide a product to the public may have  the additional benefit of reducing hazardous fuels. Some forest managers  may have included such projects among the decisions they reported in  their responses to our survey, while other forest managers with similar  decisions may not have included them.
Similarly, there are a number of limitations to the acreage data. The data  reported by forest managers include a mixture of planned, estimated, and  actual treatment acres for decisions included in our review. In our survey,  we did not limit responses to acres actually treated because once a  decision is made and documented, there are many reasons that activities  covered by the decision may be delayed or not implemented, including  availability of funding or personnel, weather conditions, and  administrative appeals or litigation. In addition, national forests may have  submitted more than one decision with activities on the same area of land,  or may have planned to use a series of different treatments on the same  land. Therefore, the 10.5 million acres covered by decisions in our review  may include overlapping acreage.
Because this was not a sample survey, there are no sampling errors.  However, the practical difficulties of conducting any survey may introduce  errors, commonly referred to as nonsampling errors. For example,  differences in how a particular question is interpreted, in the sources of  information that are available to respondents, or in how the data are  entered into a database or were analyzed can introduce unwanted  variability into the survey results. We took steps in the development of the  survey, the data collection, and data analysis to minimize these  nonsampling errors. For example, prior to developing the data collection  instruments, we met with Forest Service personnel at the headquarters,  regional, and national forest levels to discuss the Forest Service decision- making, appeal, objection, and litigation processes. We also reviewed  current policies, legislation, and court cases that are relevant to our  questions and the analysis of the survey responses. Survey specialists  designed the questionnaire in conjunction with GAO staff with subject  matter expertise. The draft survey was then pretested with officials from  four national forests in four different regions to ensure that the questions  were relevant, clearly stated, and easy to comprehend.
Upon receiving survey responses, we verified the accuracy of 5 percent of  the surveys by comparing the responses to three survey questions against  the decision documents used to complete the surveys, which were  provided by respondents at our request. Using this approach, we verified  70 randomly selected decisions. Discrepancies between the survey  responses and our data verification were discussed and resolved with the  responsible forest official. In addition, we conducted follow-up to clarify  ambiguous or incomplete responses that were identified through an  internal logic test of all submitted responses. Through our data verification  process, we determined that the data submitted were generally reliable.
To gather specific details about the outcomes of appeals and litigation, we  conducted semistructured interviews with regional appeals and litigation  officials in each of the Forest Service’s nine regions. The semistructured  interviews were used to gather information about each of the decisions  that were appealed or litigated, including related dates, status and  outcomes of administrative and court decisions, and the identities of the  appellants and litigants. Information collected through these  semistructured interviews was also verified for a randomly selected  sample of decisions. We verified the accuracy of about 10 percent of the  appealed decisions and about 50 percent of the litigated decisions by  comparing the information provided in response to several interview  questions against the administrative and court decision documents  provided to us by interviewees at our request. Any discrepancies between  the interview responses and the documents provided were discussed and  resolved with the responsible regional official. Through our data  verification process, we determined that the data gathered during the  semistructured interviews were generally reliable.
There are some limitations to the data we gathered. As with any survey,  the information obtained from the national forests was self-reported, and  we were not able to ensure that all decisions meeting our criteria were  identified. In particular, we had no way to determine whether forests were  fully reporting their hazardous fuel reduction activities. To get some  indication of the completeness and accuracy of the data provided by  Forest Service, we contacted several interest groups that, according to our  data collection efforts, often appealed and objected to decisions or  determinations. We asked these groups to verify the data pertaining to  their appeals, objections, and litigation of Forest Service fiscal year 2006  through 2008 fuel reduction decisions and to identify any missing data.  The groups generally agreed that the data provided by the agency were  complete and accurate. In addition, during these interviews, we asked the  groups for their perspectives on the administrative process for challenging  decisions, including the objection process authorized under the Healthy  Forests Restoration Act. The interviewees’ comments and perspectives are  incorporated in this report.
We conducted our work from October 2008 through February 2010, in  accordance with all sections of GAO’s Quality Assurance Framework that  are relevant to our objectives. The framework requires that we plan and  perform the engagement to obtain sufficient and appropriate evidence to  meet our stated objectives and to discuss any limitations in our work. We  believe that the information and data obtained, and the analysis  conducted, provide a reasonable basis for any findings and conclusions in  this product.
section_title: Appendix II: Number of Fuel Reduction Decisions and Associated Acreage, by Forest Service Region
paragraphs: Figure 2 shows, for each of the Forest Service’s nine regions, the number  of fuel reduction decisions and the total associated acreage. As shown, the  Southern Region (Region 8) had the largest number of decisions and the  largest acreage, while the Alaska Region (Region 10) had the fewest  decisions and the smallest acreage.
section_title: Appendix III: Number of Appeals, Objections, and Lawsuits of Fuel Reduction Decisions, by Forest Service Region
paragraphs: Figure 3 shows, for each of the Forest Service’s regions, information on  appeals, objections, and litigation of fuel reduction decisions, including  the total number of appeals, objections, and litigation and the percentage  of decisions appealed, objected to, and litigated. The Southern Region  (Region 8) had the highest combined total of decisions subject to appeal  and objection; however, decisions in the Northern Region (Region 1) were  challenged at the highest rate, considering both appeals and objections.
section_title: Appendix IV: Appeal Outcomes for Fuel Reduction Decisions, by Forest Service Region
paragraphs: Figure 4 shows, for each Forest Service region, the outcomes of appeals  filed on fuel reduction decisions within the region. While six of the eight  regions reporting appeal activity allowed the majority of appealed  decisions to proceed without changes, the Southwestern Region (Region  3) had no appealed decisions that were allowed to proceed without  changes and the highest rate of reversed decisions.
section_title: Appendix V: Litigation Outcomes for Fuel Reduction Decisions, by Forest Service Region
paragraphs: Figure 5 shows, for each Forest Service region, the outcomes of litigation  filed on fuel reduction decisions within the region. Six of the nine regions  experienced litigation during the period covered by our survey. The  Northern Region (Region 1) had the highest number of decisions judicially  challenged as well as the greatest number of ongoing lawsuits.
section_title: Appendix VI: List of Appellants, Objectors and Litigants, by Forest Service Region
paragraphs: Tables 7, 8, and 9 list, by Forest Service region, the appellants, objectors,  and litigants of fuel reduction decisions. We list the identities of  organizations filing appeals, objections, and litigation, but summarize data  on individuals to protect their privacy. As shown, organizations were most  active in the Northern Region (Region 1) for appeals, objections, and  litigation. Individuals were likewise most active in the Northern Region for  objections, but were most active in the Eastern Region (Region 9) for  appeals and litigation.
section_title: Appendix VII: Fuel Reduction Treatment Methods and Number of Appeals, Objections, and Lawsuits, by Forest Service Region
paragraphs: Figure 6 shows, for each Forest Service region, the number of decisions  using various fuel reduction treatment methods and the number and  frequency of appeals, objections, and litigation by fuel reduction method.  The rate at which treatment methods were used varied by region. For  example, the Southern Region (Region 8) and the Eastern Region (Region  9) used prescribed burning more than any other treatment method,  whereas the remaining regions used mechanical treatment the most. In  addition, the Northern Region (Region 1) used commercial logging at a  higher rate than any other region.
section_title: Appendix VIII: Contract Types and Number of Appeals, Objections, and Lawsuits, by Forest Service Region
paragraphs: Figure 7 shows, for each Forest Service region, the number of decisions  using various contract types and the number and frequency of appeals,  objections, and litigation by contract type. The use of different contract  types varies among regions. The Eastern Region (Region 9) has the highest  rate of commercial timber sale contract use compared with other regions,  while the Rocky Mountain Region (Region 2) has the highest rate of  stewardship contracting use.
section_title: Appendix IX: Fuel Reduction Decisions in the Wildland-Urban Interface and Inventoried Roadless Areas, by Forest Service Region
paragraphs: In this appendix, Figures 8 and 9 provide information about appeals,  objections, and litigation of fuel reduction activities in the wildland-urban  interface and in inventoried roadless areas. Figure 8 shows, for each  Forest Service region, the number of decisions with fuel reduction  activities in the wildland-urban interface and the number and frequency of  appeals, objections, and litigation of such decisions by region. The  Southern Region (Region 8) had the most decisions in the wildland-urban  interface, while the Northern Region (Region 1) had the highest number of  appeals and objections of such decisions, and the highest rate at which  decisions were challenged, considering both appeals and objections.
According to survey respondents, over half of these decisions (696)  contained definitions of wildland-urban interface that were based on the  definition provided in the January 4, 2001, Federal Register as refined by  HFRA. HFRA Section 101 (16) defines wildland-urban interface as an area  within or adjacent to a community that is identified as at risk in a  community wildfire protection plan. In addition, for areas for which a  community wildfire protection plan is not in effect, the definition in HFRA  includes areas (1) extending 1/2 mile from the boundary of an at-risk  community, or (2) within 1 1/2 miles of the boundary of an at-risk  community, including any land that has for example, a sustained steep  slope, a geographic feature that could help when creating an effective  firebreak, or Condition Class 3 land, or (3) is adjacent to an evacuation  route. Further, while many additional survey respondents who did not  select this definition provided their own definition of wildland-urban  interface, we found that 36 such respondents had definitions very similar  to that contained in HFRA.
Other respondents said they defined wildland-urban interface as it is  referenced in their forests’ National Forest Land Management Plans. Others  said they used a combination of definitions from multiple sources. For  example, in the Pacific Southwest Region, several wildland-urban interface  definitions were based on both the Federal Register and their forests’  National Forest Land Management Plans. Still others defined wildland-urban  interface as an area within some distance from private land, or private lands  with structures. The remaining respondents either said they did not have a  definition for wildland-urban interface (14) or did not know the definition  they used to identify the wildland-urban interface (49).
Figure 9 shows, for each Forest Service region, the number of decisions  with fuel reduction activities in inventoried roadless areas and the number  and frequency of appeals, objections, and litigation of such decisions by  region. The Intermountain Region (Region 4) had the most decisions with  activities occurring in inventoried roadless areas and also the highest  number of appeals, objections, and cases litigated. However, the Pacific  Northwest Region (Region 6) had the highest rate at which decisions were  challenged, considering both appeals and objections.
section_title: Appendix X: Types of Categorical Exclusions Authorized by the Forest Service and Represented in the GAO Survey
paragraphs: A categorical exclusion (CE) is a category of actions for which neither an  environmental assessment nor an environmental impact statement is  required because the agency has determined that it does not individually  or cumulatively have a significant effect on the quality of the human  environment. Agencies develop a list of categorical exclusions specific to  their operations when they develop or revise their implementing  procedures for the National Environmental Policy Act (NEPA), in  accordance with the Council on Environmental Quality’s NEPA  regulations.
When the Forest Service determines that activities of a proposed decision  fall within a category of activities the agency has already determined have  no significant environmental impact, it approves it using one of the  predetermined categorical exclusions established by the Secretary of  Agriculture or the Chief of the Forest Service. Table 10 shows the types  and frequency of categorical exclusions reported in our survey. They are  divided into two types: those that require the agency to prepare a decision  memo for each action approved using a categorical exclusion, and those  that do not require such documentation.
section_title: Appendix XI: Major Litigation Affecting Appeal Procedures for Categorical Exclusions
paragraphs: A summary of the major litigation that affected the exemption of  categorical exclusions from the requirements of the National  Environmental Policy Act process is shown in table 11. Starting in late  2003, these exemptions were challenged in court and were the subject of a  Supreme Court ruling. Table 12 summarizes the litigation centered  specifically on the validity of the Hazardous Fuel Reduction categorical  exclusion, or Fuels CE, also known as CE #10.
section_title: Appendix XII: Survey Questions to National Forests
section_title: Appendix XIII: GAO Contact and Staff Acknowledgments
subsections: section_title: Staff Acknowledgments
paragraphs: In addition to the individual named above, Steve Gaty (Assistant Director),  Ulana Bihun, Sandra Davis, Justin Fisher, Cathy Hurley, Richard P.  Johnson, Stuart Kaufman, Armetha Liles, Diane Lund, Robin Nazzaro,  Alison O’Neill, and Shana Wallace made key contributions to this report.