Forest Service: Information on Appeals and Litigation Involving Fuels Reduction Activities
Released: 2003-10-29T00:00:00

Letter

Background

The 2000 and 2002 wildland fire seasons proved to be two of the worst in over 50 years. During the 2000 fire season, almost 123,000 fires burned more than 8.4 million acres and cost the federal government over $1.3 billion. In 2002, almost 89,000 fires burned about 7 million acres, an area larger than the states of Maryland and Rhode Island combined. For decades, the federal wildland fire community pursued a policy of suppressing all fires as soon as possible. Over the years, suppressing fire in areas where it naturally occurred has caused an increase in the volume of brush, small trees, and other vegetation. The increase in such “forest fuels,” combined with a severe drought in much of the nation over the past few years, has increased the severity of wildland fires. The result in some instances has been catastrophic. In 2002, the Rodeo-Chediski fire in Arizona, the Hayman fire in Colorado, and the Biscuit fire in Oregon and California became the largest fires in those states in more than a century.

To deal with this threat, the administration asked the Forest Service and Interior to recommend how best to respond and how to reduce the impacts of such fires in the future. The resulting report and the associated implementation documents became known as the National Fire Plan. This blueprint recommended that the Congress substantially increase funding for several key activities, such as suppressing wildland fires and reducing the buildup of unwanted hazardous forest fuels. Of the federal agencies involved with helping to reduce the threat posed by wildland fires, the Forest Service is by far the most significant in terms of the broad range of forest activities that it is responsible for and the public attention it receives. Compared with the other federal land management agencies in fiscal years 2001 and 2002, the Forest Service received more than half of all funding provided for forest fuels reduction activities. For these fiscal years, the Congress provided the Forest Service with $414 million for reducing hazardous fuels—the other land management agencies received $381 million combined.

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). Figure 1 shows a map of the national forests and Forest Service regions.

The National Environmental Policy Act requires the Forest Service, and all other federal agencies, to assess and report on the likely environmental impacts of any land management activities they propose that significantly impact environmental quality. For example, certain proposed Forest Service activities, such as fuels reduction projects, timber sales, and grazing allotments, may require such environmental analysis and reporting. More specifically, if a proposed activity is expected to significantly impact the environment, the Forest Service is required to prepare an environmental impact statement. If, however, a proposed activity is unlikely to have a significant effect on the environment, the Forest Service is not required to prepare an environmental impact statement—such activities are classified as categorical exclusions. When the Forest Service is not sure whether an activity will have a significant impact on the environment, the agency prepares an intermediate-level analysis called an environmental assessment. If an environmental assessment determines that the activity will significantly affect the environment, the Forest Service prepares an environmental impact statement. (See fig. 2).

Under certain circumstances, the public has a right to administratively appeal Forest Service decisions.These appeals must be evaluated by the Forest Service within prescribed time frames and could result in decisions being reversed and the associated land management activities being substantially revised or even cancelled. Generally, the public can appeal decisions associated with environmental impact statements or environmental assessments. Decisions associated with categorical exclusions are generally not appealable. Further, as a general rule, once the administrative appeals process is complete, the public can litigate any decision, including categorical exclusions, in federal court.

Controversy has surrounded this issue for some time. On the one hand, critics have asserted that administrative appeals and litigation are stopping or unnecessarily slowing the decision-making processes of the Forest Service and their efforts to reduce forest fuels on federal lands. They expressed the view that many appeals are “frivolous” and brought for the purpose of frustrating, rather than improving, land management actions, and that they greatly increase the costs of managing the national forests. Supporters of the current process, on the other hand, have responded that appeals have not been excessive or unwarranted, that few appeals are frivolous, and that the current process for handling appeals is adequate. Supporters further assert that the 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 impacting the environmental health of the nation’s lands.

Recent administrative rule changes and legislative proposals modify or would modify the current appeals process and exempt certain projects from the process. In August 2002, the administration announced the Healthy Forest Initiative, which has been controversial as well; some regarding it as an effort to reduce unnecessary red tape and needless delays and others considering it a tool to increase logging activity. The initiative is intended to help reduce the threat of catastrophic wildfires and improve the health of the national forests by, among other things, streamlining the planning and appeals processes. In particular, recent administrative rule changes modify the appeal procedures and establish new categorical exclusions for certain fuels reduction projects. The Congress is also considering legislation to, among other things, exempt certain fuels reduction activities from the existing appeal requirements. The bill would require the Secretary of Agriculture to issue regulations establishing a separate administrative process to address disputes concerning these projects.

The debate surrounding the Healthy Forest Initiative centers on the extent and frequency of appeals and litigation of fuels reduction activities. However, because the Forest Service does not have a national database to track both its decisions involving forest fuels reduction activities and the extent to which they were appealed or litigated, we were asked to develop this information. The information in this report provides these data for fiscal years 2001 and 2002.

The Number of Decisions Involving Forest Fuels Reduction Activities and the Number of Acres Affected

For fiscal years 2001 and 2002, the national forest managers reported that there were 818 decisions involving forest fuels reduction activities. These decisions affected almost 4.8 million acres of national forest land. Most of these decisions were excluded from detailed environmental impact analysis because the Forest Service determined that they had little or no significant impact on the land.

Number of Decisions

Of the 818 decisions involving forest fuels reduction activities, the forest managers reported that 52 of the decisions (about 6 percent) were expected to have significant environmental impacts, thus requiring the preparation of environmental impact statements. About 280 of the decisions (about 34 percent) initially had the potential for some environmental impact and required the preparation of environmental assessments. All of the remaining decisions (486 or about 59 percent) involved activities that had no or only minor environmental impacts and, as such, were categorically excluded from documentation in an environmental assessment or an environmental impact statement.

In reporting these data, it is important to emphasize that the Forest Service does not have a uniform definition of a fuels reduction activity. The lack of a uniform definition is an important limitation because it could affect the consistency of the data reported to us by the national forests in terms of which activities are identified as fuels reduction projects. Accordingly, if the supporting Forest Service decision documents explicitly stated that the purpose of the activities was fuels reduction, we accepted the decision. However, if the decision documents did not include an explicit discussion of fuels reduction, we did not accept the decision. Many activities have the practical effect of reducing forest fuels, but the purpose may be for something other than fuels reduction. For example, a tree thinning activity may reduce fuels, but the stated purpose of the project may be to treat an insect infestation. If so, fuels reduction would not be a designated purpose of the activity, and the decision was not included in our analysis. In addition, a commercial timber harvest will reduce fuels by removing trees, but the stated purpose may be commodity production. If so, the decision was not included in our analysis. If the commercial timber sale or thinning activities included a stated purpose of reducing fuels, the decision was included in our analysis.

Amount of Acreage Affected The forest fuels reduction decisions for fiscal years 2001 and 2002 covered almost 4.8 million acres of national forest land. Of the 4.8 million acres, the forest managers reported that 0.3 million acres (about 7 percent) involved activities that were expected to have significant environmental impacts, thus requiring the preparation of environmental impact statements. About 1.5 million acres (about 31 percent) involved activities that initially had the potential for some environmental impact and required the preparation of environmental assessments. All of the remaining acreage (3.0 million or about 62 percent) involved activities that had no or only minor environmental impacts and, as such, were categorically excluded from preparation of a detailed environmental impact analysis.

There are a few limitations to the acreage data. The 4.8 million acres does not correspond to the number of acres actually treated in fiscal years 2001 and 2002. Once a decision is made and documented, there are many reasons that activities covered by decision may be delayed or not implemented, including funding availability, personnel availability, weather conditions, and administrative appeals or litigation. In addition, the national forests may have submitted more than one decision with activities on the same area of land. Therefore, the 4.8 million acres may include overlapping acreage. Further, the national forest managers reported decisions involving personal firewood activities, including one large project from the Tonto National Forest in Arizona that could potentially skew the acreage data. Under the personal firewood program, forest managers designate areas where the public can obtain a wood cutting permit and gather firewood for personal use. Forest managers can identify all of the acreage available for firewood removal under this program as fuels reduction activities. However, it is possible that the public may collect only firewood that is easily accessible, such as near roads and trails, rather than covering the entire designated area. One decision from the Tonto National Forest in Arizona designates 1 million acres as eligible for firewood removal. These 1 million acres are 21 percent of the total acreage reported as treated or planned to be treated for fuels reduction activities for all national forests. According to Forest Service officials, it is unlikely that the public will remove fuels from all 1 million acres.

Table 1 shows the number of decisions with forest fuels reduction activities, the amount of acreage affected, and their environmental impact significance.

The Number of Decisions Involving Forest Fuels Reduction Activities Appealed and Litigated and the Amount of Acreage Affected

Of the 818 decisions involving forest fuels reduction activities, 24 percent were appealed. However, more than half were not subject to appeal because they were categorically excluded from documentation in an environmental impact statement or environmental assessment. Overall, of the 818 total decisions, 332 were appealable because they had environmental impacts that were either uncertain or significant and required the preparation of an environmental assessment or environmental impact statement. Of these 194 (58 percent) were appealed. These appealed decisions affected about 950,000 acres. In addition, 25 decisions (about 3 percent of all decisions) were litigated. The litigated decisions affected about 111,000 acres.

Number of Decisions and Amount of Acreage Appealed

In fiscal years 2001 and 2002, 486 (59 percent) of all decision involving fuels reduction activities were not subject to appeal. The remaining 332 decisions involved forest fuels reduction activities that were generally more controversial because they were expected to have significant environmental impact or initially had the potential for significant environmental impacts. Of the 332 appealable decisions, 194 were appealed affecting over 950,000 acres. Table 2 summarizes the number of decisions appealed by decision type and the number of acres affected.

In reviewing the appeals data in table 2, it is important to point out that many types of land management activities may be analyzed and included as part of one decision. A single decision may include activities such as timber sales, road construction, grazing permits, and habitat improvement in addition to fuels reduction activities. As a result, when an appeal is pursued, it may or may not be based on concerns about fuels reduction activities. Under the Forest Service appeal regulations, the entire decision is appealed, not the individual activities. Therefore, the public may object to only one activity in a decision but all land management activities covered by the decision will be affected by an appeal. For example, a single decision may contain activities involving commercial thinning, prescribed burning, stream improvements, road construction, and a trail closure. An appellant may object to the road construction activity but not the forest thinning activities. However, all of the activities covered by a decision will be affected until the appeal is resolved.

There is no limit to the number of appeals that can be filed on an individual decision. In total, appellants filed 285 appeals on the 197 appealed decisions. One hundred and thirty-four decisions had 1 appeal, 48 decisions had 2 appeals, 10 decisions had 3 appeals, 3 decisions had 4 appeals, 1 decision had 5 appeals, and 1 decision had 8 appeals.

Appendix III provides information on appeal rates for each Forest Service region.

Number of Litigated Decisions with Fuels Reduction Activities and Acreage Affected

All decisions can be litigated. In fiscal years 2001 and 2002, 25 decisions (about 3 percent) were litigated. These litigated decisions affected about 111,000 acres (about 2 percent). Not surprisingly, decisions with significant environmental impacts were litigated more often. Of the 52 decisions where the Forest Service was required to prepare environmental impact statements, 15 (29 percent) were litigated. Table 3 provides a summary of the decisions litigated and the acres affected by the litigation.

Appendix III provides information on the number of litigated decisions, by Forest Service region.

Outcomes of Appealed and Litigated Decisions and the Identities of Appellants and Plaintiffs

Of the 197 appealed decisions the Forest Service reviewed, 144 (about 73 percent) were allowed to be implemented without any changes. However, the Forest Service did not allow 38 decisions (about 19 percent) to be implemented. The Forest Service required the remaining 15 decisions (about 8 percent) to be changed prior to implementation. Of the 25 litigated decisions, 19 have been resolved and 6 were still ongoing at the time of our review. Most of the appellants and plaintiffs were interest groups.

Outcomes of the Appeals and the Identities of Appellants

Generally, appealed decisions have one of three outcomes. First, the Forest Service can allow a decision to be implemented without any changes. Second, the Forest Service can allow a decision to be implemented, but only if certain, specified changes are made. Third, the Forest Service can prevent a decision from being implemented. There are a variety of factors that can affect the disposition of an appeal and lead to these outcomes. Each of these factors is specified in Forest Service regulations. Some of these factors are procedural and have little or nothing to do with the merit of an appeal, and some are based on the merit of the appeal. Table 4 provides a brief summary of the three basic decision outcomes and an explanation of the factors that can lead to various appeal outcomes.

Figure 3 shows the disposition of each of the 197 appealed decisions for fiscal years 2001 and 2002.

Decisions proceed with changes (15)

Decisions do not proceed (38)

Appendix IV provides a summary of the appeal outcomes, by region.

Under certain circumstances, members of the public, including private individuals and interest groups, can appeal decisions of Forest Service officers.A decision can be appealed multiple times and multiple appellants can be parties to an appeal. For example, the Little Blacktail Ecosystem Restoration Project Record of Decision issued in the Kaniksu National Forest in Idaho had three appeals; the Ecology Center, Lands Council, Kootenai Environmental Alliance, and Friends of the Pond joined in one appeal; the Alliance for the Wild Rockies filed another appeal; and a private individual filed the third appeal. In these instances, each interest group and the private individual counted as appellants—6 total appellants—even though they were appealing 1 decision and had filed 3 appeals. Due to these situations, there were 285 appeals on the 197 appealed decisions. The 285 appeals had 559 appellants. The 559 appellants included 482 appeals by 85 different interest groups, mostly environmental groups, and 77 appeals by 53 private individuals. Table 10 of appendix V lists each interest group that appeared as an appellant in fiscal years 2001 and 2002 and the number times they appeared. Of the interest groups, 7 appeared as appellants 20 or more times. These groups include the Alliance for the Wild Rockies, Ecology Center, Forest Conservation Council, Lands Council, National Forest Protection Alliance, Oregon Natural Resources Council, and Sierra Club.

Outcomes of Litigated Decisions and the Identities of Plaintiffs

Following a final decision by the Forest Service on an appeal, members of the public, can file a lawsuit and seek a review of the decision from a federal district court. Plaintiffs are usually the same parties who previously appealed the decisions with the Forest Service. It may take weeks to years to resolve a case once a decision is litigated. Of the 25 litigated decisions, 6 were continuing at the time of our analysis. For the remaining 19 cases, lawsuits for 5 decisions were dismissed because the plaintiffs and the Forest Service agreed to settle their claims. District courts reached an outcome on the 14 remaining decisions—9 decisions were decided favorably to the plaintiffs, and 5 decisions were decided favorably to the Forest Service. Both plaintiffs and the Forest Service have the option of appealing the decisions of the district court to the relevant federal court of appeals. We did not collect information on whether the decisions were appealed to a higher court.

Appendix V provides information on the outcomes of litigated decisions, by region.

Multiple plaintiffs can be parties to a lawsuit. Of the 25 litigated decisions, 26 different interest groups and one private individual were plaintiffs. The interest groups were primarily environmental groups. Five groups were plaintiffs in 4 or more decisions: the Ecology Center, Sierra Club, Oregon Natural Resources Council, Hell’s Canyon Preservation Council, and Native Ecosystems Council.

The Number of Decisions That Were Processed Within Prescribed Time Frames

Most of the appeals that occurred in fiscal years 2001 and 2002 were processed within the prescribed time frames. Specifically, of the 285 appeals that were filed, about 79 percent were processed within the prescribed 90 days.

The applicable laws and regulations establish procedures for public notice of a decision and the time frames for appeal. Once the public is given notice of a decision, appellants have 45 days to file an appeal. If an appeal is filed, the Forest Service has 45 days from the close of the appeal period to determine the outcome of the appeal. In total, the Forest Service has up to 90 days to resolve an appeal once the agency notifies the public of a decision. While the agency is determining the disposition of an appeal, a Forest Service official is required to contact an appellant and offer to meet informally to dispose of the appeal. Figure 4 provides a flowchart showing the appeals process that applied during fiscal years 2001 and 2002.

Of the 285 appeals filed in fiscal years 2001 and 2002, 226 (79 percent) were processed within 90 days of the date that the decisions were made and published. In contrast, 59 appeals (about 21 percent) were not processed within 90 days. For those appeals that were not processed within the 90- day limit, the appeal processing times ranged from 91 to 240 days, with a median processing time of 119 days. The Forest Service offered several reasons for not processing the 59 appeals within the 45-day formal disposition period. These reasons included inadequate staffing, the unavailability of staff around the holiday season, and appeal backlog. We did not verify or analyze the support for the reasons that the Forest Service provided.

Further, to fully understand the appeals process, it is important to understand that under certain circumstances, appellants may have more than one opportunity to appeal a decision. Once a decision is reversed or withdrawn by the Forest Service as a result of an appeal, the agency can revise and reissue the decision. This is usually done to accommodate concerns that have been raised during an initial appeal. Moreover, the Forest Service also has the option of not reissuing the decision. In our analysis, 32 decisions had been reissued. Of those reissuances, 30 were appealed again and 2 were implemented without appeal. Once a decision is reissued, the permitted processing times for handling appeals begin again.

Appendix VII provides a summary of the appeals processing times for each Forest Service region.

The Types of Fuels Reduction Treatment Methods Identified in the Decisions, the Acreage Affected, and How Frequently These Decisions Were Appealed

Reducing the buildup of vegetation that fuels severe fires requires vegetation management, or fuels reduction. There are four basic fuels treatment methods. These are prescribed burning, mechanical thinning, the application of chemicals/herbicides, and grazing. Prescribed burning is the most frequently used method to reduce the accumulation of dangerous fuels on forested acres. Decisions involving the two main types of fuels treatment methods, prescribed burning and mechanical treatment, were appealed at about the same rate.

Frequency of Use and Scope of Treatment Methods

A prescribed fire is one that is intentionally ignited to meet specific land management objectives. In addition to reducing the risk of wildfires, prescribed fires also are used to prepare areas for reforestation or to improve wildlife habitat. How and when a prescribed fire can be successfully conducted is influenced by many conditions, such as the type and moisture levels of vegetation, topography, temperature, wind speed, and humidity. All of these factors are to be considered and documented by fire management personnel prior to initiating a prescribed burn. Figures 5 and 6 show examples of a prescribed burn.

Prescribed burning was the most frequently used fuels treatment method during fiscal years 2001 and 2002—in terms of both the number of decisions that included prescribed burning activities and the number of acres affected. Of the 818 decisions with fuels reduction activities, 570 (about 70 percent) included prescribed burns. Of the total 4.8 million acres covered by all decisions, 3.2 million acres (about 67 percent) had been or were to be treated using this method.

There is a range of mechanical treatments that can be used to reduce forest fuels. Harvesting timber and removing smaller noncommercial trees and brush can accomplish fuels reduction. In addition, thinning stands of trees to reduce competition for light, moisture, and nutrients may improve forest health. Mechanical thinning is typically done using power equipment, such as bulldozers, chain saws, chippers, and mulchers. Figures 7 and 8 show examples of mechanical thinning projects.

Mechanical thinning is the second most utilized method for reducing forest fuels. Of the 818 decisions with fuels reduction activities, 491 (about 60 percent) included mechanical treatment methods. These treatments involved 0.8 million acres—about 17 percent of all the acreage treated or planned for treatment in fiscal years 2001 and 2002.

Chemical treatments are herbicides used to control and remove the hazardous buildup of forest vegetation. Herbicides are usually applied as liquids mixed with water or oil and then sprayed on the soil surface to be absorbed by the plant roots. Generally, there are four methods of applying herbicides: (1) aerial application, using helicopters or other aircraft; (2) mechanical equipment, using truck-mounted or truck-towed wand or broom sprayers; (3) backpack equipment, generally a pressurized container with an agitation device; and (4) hand application by injection, daubing cut surfaces, or application of granular formulations to the soil.

Grazing animals, such as cattle and goats, can also be used to reduce the buildup of hazardous forest fuels. However, grazing is less utilized because it is increasingly competing with other uses of public lands, such as recreation, wildlife habitat, riparian management, endangered species management, mining, hunting, cultural resource protection, wilderness, and a wide variety of other uses.

Chemical treatments and grazing are the least utilized treatment methods. Of the 818 fuels reduction decisions reported, 3 (less than 1 percent) included chemical/herbicide treatments, and 2 (less than 1 percent) included grazing. These two types of treatment methods affected about 700 acres—less than 1 percent of the total acres treated or planned for treatment in fiscal years 2001 and 2002.

In addition to the four basic hazardous fuels treatment methods, there are other methods that are sometimes used. These other methods include activities such as cutting underbrush by hand or the public’s removal of firewood by hand. One hundred and twelve (14 percent) of all fuels reduction decisions in fiscal years 2001 and 2002 included these other kinds of treatments. However, while the use of the other methods was relatively infrequent, the amount of acreage affected was considerable—mostly due to the 1 million acre personal fire wood removal program from the Tonto National Forest in Arizona. There are two important points that need to be highlighted regarding this fire wood removal program. First, while the project covers 1 million acres, it does not necessarily mean that firewood will be removed from all of these acres. It simply means that these acres are available for the removal of firewood. Accordingly, the extent of fuels reduction on these acres is not clear. It is possible that the number of acres actually reported for the project can be significantly overstated. Second, even though officials at the Tonto National Forest reported this as part of the forest fuels reduction program, Forest Service headquarters officials questioned the merit of including it in our report because they believed it skewed the data by increasing the amount of acreage having fuels reduction activities. In the final analysis, we reported this project as a fuels reduction activity because the Tonto forest officials identified it as such in their decision documents. Table 5 summarizes the fuels reduction methods used by the Forest Service in fiscal years 2001 and 2002.

The columns in the table 5 do not add to the total number of decisions (818) or the total amount of acreage affected (4.8 million). This occurs for two reasons. First, a decision can include prescribed burning on some acreage and another treatment method on other acreage. Second, the same acreage can be treated by more than one method. For example, an area can be thinned using prescribed burning and then be further thinned using mechanical means. Forest managers reported that 280 decisions with fuels reduction activities included acres treated or planned for treatment by both prescribed burning and mechanical methods.

Rate of Appeals for Each Type of Fuels Treatment Method

Appeal rates for the two main types of treatments, prescribed burning and mechanical, were about the same. Appealable decisions with a mechanical treatment component were appealed about 64 percent of the time. Appealable decisions with prescribed burning activities were appealed at about the same rate—63 percent of the time. Similarly, 34 percent of all decisions with mechanical treatment methods were appealed, and 29 percent of all decisions with prescribed burning activities were appealed. Table 6 provides a summary of the appeal rates for decisions with the different treatment methods.

An analysis of the data shown in table 7, on the basis of the amount of acreage affected, shows that decisions with prescribed burning covered the most acreage appealed.

Appendix VIII provides data on treatment methods and appeal rates, by Forest Service region.

Types of Contracts Used in Decisions with Fuels Reduction Activities and How Frequently Decisions Involving the Contract Types Were Appealed

Typically, the Forest Service contracts with other organizations to carry out fuels reduction activities in the national forests. In doing this, the agency generally uses three types of contracting mechanisms—timber sale contracts, service contracts, and stewardship contracts. A decision can use more than one type of contract to carry out fuels reduction activities. The Forest Service awards timber sale contracts to individuals or companies to harvest and remove trees from federal lands under its jurisdiction. Service contracts are awarded to contractors by the Forest Service to perform specific tasks to reduce forest fuels, such as thinning trees or clearing underbrush. Stewardship contracts are used by the Forest Service to conduct on-the-ground restoration and enhancement of landscapes with public and private entities. Service contracts are the most frequent contracting method used. Decisions using timber sale contracts and stewardship contracts are the most frequently appealed.

Types of Contracts Used in Decisions with Fuels Reduction Activities

Forest Service timber sale contracts set forth specific terms and provisions of a sale, including the estimated volume of timber to be removed, the time period of the removal, the price to be paid to the government, and the environmental protection measures to be taken. Of the 818 total fuels reduction decisions, 278 (34 percent) involved timber sale contracts.

The Forest Service also uses traditional service contracts to reduce the accumulation of fuel loads. Typically, a service contract identifies the tasks to be performed, such as removing and treating the unmarketable, cut materials. The cut materials affect the fuel loads and can be left as is, piled and burned, lopped and scattered to accelerate rotting, or removed from the site. Of the 818 total fuels reduction projects, 356 (44 percent) of the decisions involved service contracts.

Stewardship contracts use a combination of service contracts and timber sale contracts to care for national forest system land. In 1998, the Forest Service was given stewardship contracting authority so that the agency could work with private and public entities to achieve federal management goals. For example, this authority provided the Forest Service with the ability to trade goods for services (such as timber in exchange for road maintenance). A stewardship contract might include prescribed burning to improve wildlife habitat or reduce forest fuels in conjunction with the sale of forest products off the same piece of land. Of the 818 total fuels reduction decisions, 41 (5 percent) of the decisions involved stewardship contracts.

Figure 9 shows the frequency of service, timber sale, and stewardship contracts used in decisions with fuels reduction activities.

The total number of decisions in figure 9 does not total 818 because there are also other means used to implement fuels reduction activities. Forest Service personnel are frequently used to perform the needed work. Typically, Forest Service personnel are used in conjunction with different contract types. Of the 818 decisions, 673 (82 percent) involved some work by Forest Service personnel. Further, other means, such as contracts that utilize prison labor and contracts that collaborate with other federal agencies like the Bureau of Land Management, are also used to help reduce forest fuels. Eighty-three (10 percent) of all 818 decisions with fuels reduction activities used these other mechanisms.

Appeal Rates for Decisions with Each Contracting Mechanism

Decisions that are implemented through the use of timber sale contracts and stewardship contracts were the most frequently appealed. Because of the controversy that surrounds timber harvesting activities and their impact on the environment, it is not surprising that contracts for this type of activity would be scrutinized and challenged by the forest interest groups or other stakeholders.

Appendix IX summarizes the contracting methods used and appeal rates, by Forest Service region.

Number of Decisions with Fuels Reduction Activities in the Wildland-Urban Interface and Inventoried Roadless Areas and How Frequently the Decisions Were Appealed

Two areas of particular interest on national forest land where fuels reduction activities can occur are in the wildland-urban interface and inventoried roadless areas. The wildland-urban interface areas are those areas where federal lands surround or are adjacent to human development and communities. In contrast, inventoried roadless areas are undeveloped areas with no or few roads. Fuels reduction activities occur more on wildland-urban interface areas than in inventoried roadless areas. Of the 818 decisions involving fuels reduction activities, 462 decisions had activities in the wildland-urban interface and 76 decisions had activities in inventoried roadless areas. Decisions with fuels reduction activities in the inventoried roadless areas are appealed more frequently.

Decisions with Fuels Reduction Activities in the Wildland-Urban Interface and Appeal Rates

The Forest Service broadly defines the wildland-urban interface as areas where humans and their development meet or intermix with wildland forest fuels. There are three categories of communities that meet its definition: (1) an interface community exists where structures directly abut wildland fuels; (2) an intermix community exists where structures are scattered throughout a wildland area; and (3) an occluded community exists, often within a city, where structures abut an island of wildland fuels, such as a park or open space. Figure 10 shows an example of a community in the wildland-urban interface.

Individual forest managers may or may not use the definition of wildland- urban interface that the Forest Service provides. According to the information provided by the national forests in response to our survey, most forest managers reported that they used the Forest Service’s definition or they developed their own definition. Other managers reported that they either did not have a definition or did not know if they had a definition. The inconsistent application of these definitions by forest managers should be considered when using the information reported about whether fuels reduction activities were in the wildland-urban interface. An August 2003 GAO report highlighted the fact that agencies need to define which lands are part of the wildland-urban interface. Without doing so, the Forest Service will be constrained in its ability to prioritize locations for fuels reduction treatments and to allocate funding accordingly. We recommended in the August report that the Forest Service develop a consistent, specific definition of the wildland-urban interface so that detailed, comparable nationwide data could be collected to identify the amount and location of lands in the wildland-urban interface. Development of a consistent definition will facilitate the prioritization of fuels reduction treatments.

Of the 818 decisions with fuels reduction activities, the national forest managers reported 462 decisions (57 percent) had fuels reduction activities in the wildland-urban interface. Of these 462 decisions, 169 were appealeable—that is, they were decisions analyzed in conjunction with environmental assessments or environmental impact statements. Of the 169 appealable decisions, 89 were appealed—that is, 53 percent of appealable decisions and 19 percent of all decisions with fuels reduction activities in the wildland-urban interface.

The 462 decisions covered 1.5 million acres—that is, 31 percent of the total acreage (4.8 million) for all reported fuels reduction activities.

Decisions with Fuels Reduction Activities in Inventoried Roadless Areas and Appeal Rates

Inventoried roadless areas, as the name implies, are undeveloped areas generally without roads, which the Forest Service has specifically defined. The intent of the roadless designation is to conserve these natural areas by limiting road building and logging activities. Figure 11 shows an example of an inventoried roadless area on national forest land.

In contrast to the wildland-urban interface areas, roadless areas have specific boundaries, which make it much easier for forest managers to report on decisions with treatments in these areas. Of the 818 decisions, the national forests reported 76 decisions—about 9 percent of all decisions—with fuels reduction activities in roadless areas. Of these 76 decisions, 41 were appealable and 26 were appealed—that is, 34 percent of all decisions with treatments in roadless areas and 63 percent of appealable decisions.

The 76 decisions covered 240,000 acres—about 5 percent of all acreage treated or planned for treatment in fiscal years 2001 and 2002.

Appendix X provides information on the number of decisions involving fuels reduction activities in the wildland-urban interface and inventoried roadless areas and the frequency of appeals for each Forest Service region.

Agency Comments and Our Evaluation

We provided a draft of this report to the Forest Service for review and comment. The agency generally agreed with the information presented in the report. However, the agency did offer a few comments that it believed would help clarify some of this information. Specifically, the Forest Service believes that we should not have included information on a 1 million acre personal use firewood program at one forest because, in their opinion, doing so unnecessarily skews the data by increasing the amount of acreage with fuels reduction activities. We did not change the report to omit this information because, as the Forest Service agrees, it was reported and documented as a fuels reduction project by the agency. Nonetheless, to ensure clarity, we highlighted in the report the unique nature of the project, where appropriate.

The agency suggested that we highlight the fact that a single decision can be appealed multiple times, and that the Forest Service’s workload increases accordingly. In its comments, the agency commented that we should provide additional information on that point in the body of the report to emphasize the impact of multiple appeals on the workload of the agency. We believe this point was already addressed in the body where we noted that there were 285 appeals on the 197 appealed decisions. In addition, we also provided a breakdown of the number of appeals per decision. Nonetheless, we did add language to the Results in Brief section of the report and the Highlights section, noting that decisions can be appealed multiple times.

The Forest Service also commented that because appeal rates vary widely throughout the nation, we should add language in the narrative regarding local perceptions of appeal rates and how they can differ from the national data. The agency noted that when local groups or individuals state that many projects are held up by appeals, they are more likely referring to their experience at the local level. We believe the information needed to discern regional differences was already presented in the report; therefore, we did not make changes to the report.

The Forest Service’s written comments are presented in appendix XII.

As arranged with your offices, unless you publicly announce its contents earlier, we plan no further distribution of this report until 30 days after the date of this letter. At that time, we will send copies to the Secretary of Agriculture, the Chief of the Forest Service, and other interested parties. We will make copies available to others upon request. This report will also be available on the GAO Web site at http://www.gao.gov.

If you or your staff have any questions about this report, please contact me at (202) 512-3841. Key contributors to this report were Cliff Fowler, Curtis Groves, Richard Johnson, Roy Judy, Nicole Shivers, Patrick Sigl, and Shana Wallace.

Scope and Methodology

The Forest Service does not maintain its own database on the number of decisions or appeals throughout the national forest system. Accordingly, to address each of the objectives, we had to develop a national database. To do this, we used a Web-based survey of all 155 national forests. The survey focused on all Forest Service decisions in fiscal years 2001 and 2002 with a forest fuels reduction component, including those that were categorically excluded from preparation of an environmental impact statement, that were issued in fiscal years 2001 and 2002. The specific information we needed to satisfy our objectives was located at several organizational levels—headquarters, regional offices, individual forests, and district offices within each forest. For instance, information on the individual decisions, particularly the environmental impact statements and environmental assessments, was located at the forest-level. Information on categorical exclusions was primarily located only at the district offices. Our survey was addressed to forest supervisors. We asked forest supervisors to gather the necessary information from the other organizational units within the Forest Service, as needed, to complete the survey. We also asked each forest supervisor for a contact person at the forest who was familiar with the National Environmental Policy Act process requirements, since it guides land management decision-making and planning activities. This contact person served as our focal point at each forest and was responsible for providing us with survey responses and addressing the follow-up questions and documents that we requested.

We developed a data collection instrument to obtain the relevant information. Appendix XI contains a copy of the instrument used to gather these data. To help us understand the decision-making and appeals and litigation processes and to help us formulate the questions for our survey instrument, we met with Forest Service personnel at headquarters in Washington, D.C.; the region 5 office in Vallejo, California; the Stanislaus and Tahoe National Forests in California; and the George Washington and Jefferson National Forests in Virginia. Once we developed the questions, we pretested the instrument at the Kootenai National Forest in Montana, the Payette and Boise National Forests in Idaho, and the Monongahela National Forest in West Virginia.

We gave the forests 3 weeks to respond to the survey and granted extensions as needed. We obtained a 100 percent response rate from the forest managers. We verified the accuracy of about 10 percent of the survey responses submitted. We used a random number to identify the first decision to be verified and then selected every 10th decision submitted by the forests. After selecting a decision, we obtained the supporting decision documents, National Environmental Policy Act documents, and appeals information from the forests and verified the information submitted for the randomly selected decisions. Using this approach, we verified 85 total decisions. Any discrepancies between the survey responses and our data verification were discussed and resolved with the responsible forest official. Through our data verification process, we determined that the data submitted were generally reliable.

In addition to our verification of the information supporting the 85 randomly selected decisions, we also reviewed the data to determine whether there were any aberrations in the submitted data (e.g., illogical dates or inconsistent responses). We contacted the appropriate forest officials and corrected many aberrations in the data. As a result of our review and verification, we identified 42 decisions that were eliminated from the information provided by the forest managers. These decisions were eliminated for a variety of reasons. For example, the decisions (1) were not issued within fiscal years 2001 and 2002 or (2) lacked clear documentation that the activities had a fuels reduction purpose.

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 independently ensure that all decisions were reported. In particular, we had no way to determine if forests were underreporting their activities. To get some indication of whether this might be occurring, we contacted eight environmental groups to review the decisions submitted by selected forests in order to determine if there was any indication that the forests were underreporting decisions. These groups did not identify any instances of underreporting.

We conducted our work from September 2002 through September 2003 in accordance with generally accepted government auditing standards.

Decisions and Acres, by Forest Service Region

The Forest Service consists of nine regions. Figure 12 highlights the areas covered by each region. The Southern Region (region 8) had the largest number of decisions with fuels reduction activities (180 decisions) with the largest planned acreage—2.1 million acres. The Alaska Region (region 10) listed the least number of decisions with fuels activities (2) and the least 12 provides a summary of the amount of acreage—1,408 acres. number of decisions and acres planned in each Forest Service region.

Forest Service Appeals and Litigation of Decisions with Fuels Reduction Activities, by Forest Service Region

Figure 13 summarizes the appeals and litigation information by each Forest Service region. The Northern Region (region 1) had the highest appeal rate for both all decisions and appealable decisions appealed. The Northern Region (region 1) had 48 percent of all decisions appealed and 90 percent of appealable decisions appealed. The Alaska Region (region 10) had no decisions appealed. The Southern Region (region 8) had the lowest appeal rates for regions with recorded appeals—7 percent of all decisions and 36 percent of appealable decisions. The Northern Region (region 1) had the highest number of litigated decisions with 8. The Southwestern (region 3), Southern (region 8), and Alaska (region 10) Regions did not report any litigated decisions with fuels reduction activities.

Appeal Outcomes for Decisions with Fuels Reduction Activities, by Forest Service Region

Figure 14 summarizes the appeal outcomes for decisions with fuels reduction activities by Forest Service region. All of the decisions in the Southern Region (region 8) were permitted to proceed without changes. The Eastern Region (region 9) had the lowest percentage of decisions that were allowed to proceed without changes—50 percent. hwestern Region (region 3) had the highest percentage of decisions that were not allowed to proceed due to appeals—38 percent.

Litigation Outcomes for Decisions with Fuels Reduction Activities, by Forest Service Region

Table 9 summarizes the number of litigated decisions and the outcomes for each Forest Service region. The Northern Region (region 1) had 8 litigated decisions and 3 were settled or continuing. Of those decided, 3 were in favor of plaintiffs and 2 were in favor of the Forest Service. The Pacific Northwest Region (region 6) had all 5 of its litigated decisions resolved—4 in favor of plaintiffs and 1 in favor of the Forest Service. Three regions— Southwestern (region 3), Southern (region 8), and Alaska (region 10)—had no decisions litigated.

List of Appellants and Litigants for Each Forest Service Region

Appellants, by Region

Table 10 provides a list of appellants by Forest Service region. Interest groups were most active in the Forest Service’s Northern (region 1), Pacific Southwest (region 5), and Pacific Northwest (region 6) Regions. Private individuals were most active in the Rocky Mountain (region 2) and Pacific Southwest (region 5) Regions. Interest groups were the least active in the Alaska (region 10), Southern (region 8), and the Southwestern (region 3) Regions.

Litigants, by Region

Table 11 provides a list of litigants by Forest Service region. Interest groups were most active in the Forest Service’s Northern (region 1), Intermountain (region 4), Pacific Southwest (region 5), and Pacific Northwest (region 6) Regions. The Southwestern (region 3), Southern (region 8), and Alaska (region 10) Regions did not have any decisions litigated.

Appeal Processing Time Frames for Decisions with Fuels Reduction Activities, by Region

Figure 15 summarizes the processing time frames for appeals of decisions for each Forest Service region. ntain Region (region 2) had The Rocky Mou the highest rate of appeals processed within the 90-day prescribed time frame at a rate of 100 percent. he Pacific Northwest Region (region 6) had T a rate below 50 percent by processing 17 of 49 appeals (about 35 percent) within the 90-day prescribed time frame.

Fuels Reduction Methods and Appeals, by Forest Service Region

Figure 16 summarizes the fuels reduction methods used and how frequently decisions with those methods were appealed by Forest Service region. The Southern Region (region 8) had the most decisions (166) with prescribed burn activities. The Pacific Southwest Region (region 5) had the most decisions (126) with mechanical treatments. The Northern Region (region 1) experienced the highest appeal rates for decisions with prescribed burning and mechanical treatment activities—95 percent of appealable decisions and 55 percent of all decisions for prescribed burning; and 93 percent of appealable decisions and 63 percent of all decisions for mechanical treatment.

Types of Contracts Used in Decisions with Fuels Reduction Activities and How Frequently They Were Appealed, by Region

Figure 17 shows a summary of the types of contracts used for implementing fuels reduction activities and how frequently decisions involving the contract types were appealed by region. The Pacific Northwest Region (region 6) had the most decisions (75) that included service contracts. The Pacific Southwest Region (region 5) issued the most decisions (65) with timber sale contracts. The Northern Region (region 1) had the most decisions (14) with stewardship contracts. The Intermountain (region 4), Pacific Southwest (region 5), and Eastern (region 9) Regions had all of their decisions with stewardship contracts appealed— totaling 4 decisions for all three regions.

Decisions in Wildland-Urban Interface and Inventoried Roadless Areas

Figure 18 summarizes the number of decisions with fuels reduction activities in the wildland-urban interface (WUI) and frequency of appeals by region. The Southern Region (region 8) had the most decisions (125) in the WUI. The Northern Region (region 1) had the most decisions (23) that were appealed. The highest appeal rate for all decisions (50 percent) was the Eastern Region (region 9). The highest rate for appealable decisions (88 percent) was the Northern Region (region 1).

Figure 19 summarizes the number of decisions with fuels reduction activities in inventoried roadless areas (IRA) and frequency of appeals by region. The Northern Region (region 1) had the most decisions (21) in IRAs. e Intermountain Region (region 4) had the most appealed Th decisions (8). The highest appeal rate for all decisions (50 percent) was in the Eastern Region (region 9). The highest appeal rate for appealable decisions (100 percent) was in the Eastern Region (region 9).

Survey Questions to National Forests

Comments from the U.S. Department of Agriculture

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