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Friday, December 14, 2012

Administrative Appeals in the Bureau of Land Management and the Forest Service



Kristina Alexander
Legislative Attorney

Congress has expressed an interest in the appeals processes of the Bureau of Land Management (BLM) and the Forest Service because of its complexity, and because of allegations that the appeals processes have restricted the ability of the agencies to manage the resources under their care. In 2011, Congress changed the project review process from one that provided for automatic stays and multiple levels of review to a pre-decisional objection process (P.L. 112-74 § 428). In amending the 1992 Forest Service Decisionmaking and Appeals Reform Act process, Congress aimed to expedite agency review. This change, however, will not take effect until final regulations are issued. Proposed regulations were issued in August 2012.

Administrative appeals are challenges to agency actions that agencies attempt to resolve themselves. Agencies set up hearing processes and regulations to meet the requirements guaranteed by the Fifth Amendment of the U.S. Constitution—that no person will be deprived of property without the due process of the law. This report describes the appeals processes of the BLM of the Department of the Interior (DOI), and the Forest Service of the Department of Agriculture. These appeals are not all formal adjudicatory proceedings under the Administrative Procedure Act (although some have similar procedures), but are defined primarily by agency regulation.

BLM has many different types of administrative appeals. The type of appeal depends, in large part, on the type of action taken by BLM. Decisions regarding land use plans have one type of review that differs slightly for challenges by governors. Decisions regarding minerals, oil and gas, forests, and grazing have different appeals processes, sometimes even having different processes within those categories. Many, but not all, BLM decisions have a final agency review by an appeals board under the Department of the Interior. Sometimes the final review is completed by an Administrative Law Judge.

The Forest Service also has multiple types of reviews, although it does not have an appeals board or Administrative Law Judges. For the most part, Forest Service administrative appeals are based on the type of decision being challenged. Forest plans have one process. However, projects implementing those plans have different types of administrative appeals depending on the underlying statute from which the project was authorized. Decisions regarding use and occupancy of forests have another appeals process, which differs depending on the level of employee who made the decision being challenged.



Date of Report: December 7, 2012
Number of Pages: 22
Order Number: R40131
Price: $29.95

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