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

Letter

Background

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.

Number and Type of Decisions Involving Hazardous Fuel Reduction Activities in Fiscal Years 2006 through 2008 and the Associated Acreage

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.

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

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.

Outcomes of Appeals, Objections, and Litigation of Decisions with Hazardous Fuel Reduction Activities; Associated Time Frames; and Identities of Appellants, Objectors, and Plaintiffs

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.

Outcomes of Appeals, Time Frames, and Identities of Appellants

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.

Outcomes of Objections, Time Frames, and Identities of Objectors

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.

Outcomes of Litigation and Identities of Plaintiffs

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.

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

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.

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

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.

Concluding Observations

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.

Agency Comments and Our Evaluation

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.

Appendix I: Objectives, Scope, and Methodology

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.

Appendix II: Number of Fuel Reduction Decisions and Associated Acreage, by Forest Service Region

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.

Appendix III: Number of Appeals, Objections, and Lawsuits of Fuel Reduction Decisions, by Forest Service Region

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.

Appendix IV: Appeal Outcomes for Fuel Reduction Decisions, by Forest Service Region

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.

Appendix V: Litigation Outcomes for Fuel Reduction Decisions, by Forest Service Region

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.

Appendix VI: List of Appellants, Objectors and Litigants, by Forest Service Region

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.

Appendix VII: Fuel Reduction Treatment Methods and Number of Appeals, Objections, and Lawsuits, by Forest Service Region

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.

Appendix VIII: Contract Types and Number of Appeals, Objections, and Lawsuits, by Forest Service Region

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.

Appendix IX: Fuel Reduction Decisions in the Wildland-Urban Interface and Inventoried Roadless Areas, by Forest Service Region

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.

Appendix X: Types of Categorical Exclusions Authorized by the Forest Service and Represented in the GAO Survey

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.

Appendix XI: Major Litigation Affecting Appeal Procedures for Categorical Exclusions

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.

Appendix XII: Survey Questions to National Forests

Appendix XIII: GAO Contact and Staff Acknowledgments

Staff Acknowledgments

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.