Court Strikes down Portions of Forest Service's Appeal Regulations

摘要

On July 2, 2005, the U.S. District Court for the Eastern District of California struck down five separate provisions of the Forest Service's regulations regarding appeals for project level decisions. Earth Island Institute v. Pengilly, 376 F. Supp. 2d 994 (E.D. Cal. 2005), was originally filed as an appeal of the Forest Service's approval of a timber sale, and became a facial challenge to the Forest Service's appeal regulations after a settlement was reached regarding project approval. The plaintiffs originally challenged the validity of eight Forest Service regulations and argued that: (1) the regulations categorically excluding certain decisions from National Environmental Policy Act analysis are unlawfully exempted from appeal; (2) the regulations exempting decisions signed by the Secretary and Under Secretary of Agriculture from comment and appeal violate the Administrative Procedure Act; (3) the Appeals Reform Act (ARA) does not allow the Forest Service to limit appeal standing to those who had filed "substantive comments"; (4) the "most effective timing" provision for public comment violates the ARA; (5) the ARA does not permit the Forest Service to intentionally refuse to decide an appeal; (6) "emergency situations" may not be defined to include pure economic losses to the government; (7) the ARA does not permit regional foresters to make emergency stay exemption determinations; and (8) the regulations improperly shorten the stay period by five days.