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CHAPTER 30 - APPEAL PROCESSING
Table of Contents
30.1 - Appeal Numbering Format ............................................................................................... 2
30.2 - Numbering Convention .................................................................................................... 2
30.3 - Applying Numbering Convention .................................................................................... 2
31 - NOT PROCESSING AN APPEAL REQUEST ......................................................... 2
31.1 - General Provisions............................................................................................................ 3
31.2 - Electronic Submissions .................................................................................................... 5
31.3 - Appeals Submitted in a Foreign Language ...................................................................... 5
32 - DISMISSAL OF APPEAL WITHOUT REVIEW ....................................................... 5
32.1 - Cause for Dismissal .......................................................................................................... 5
32.11 - Requested Change Cannot Be Granted....................................................................... 5
32.12 - Non-Substantive Comments ....................................................................................... 5
32.13 - Insufficient Information .............................................................................................. 6
32.2 - Notification of Dismissal Without Review ...................................................................... 6
33 - INFORMAL DISPOSITION ...................................................................................... 8
33.1 - Purpose ............................................................................................................................. 8
33.2 - Offer to Meet .................................................................................................................... 8
33.3 - Meeting ............................................................................................................................. 8
33.31 - Location and Participants ........................................................................................... 8
33.32 - Meeting Recording or Transcript................................................................................ 8
33.4 - Outcome ........................................................................................................................... 9
34 - TRANSMITTAL OF DECISION DOCUMENTATION ............................................. 11
35 - FORMAL DISPOSITION ........................................................................................ 15
35.1 - Multiple Appeals from Individual Appellants ................................................................ 15
35.2 - Single Appeal with Multiple Appellants ........................................................................ 15
35.3 - Appeal Reviewing Officer .............................................................................................. 15
35.31 - Appeal Reviewing Officer Recommendation ........................................................... 16
35.32 - Appeal Reviewing Officer Review of Issues............................................................ 21
35.32a - Scope ....................................................................................................................... 21
35.32b - Process .................................................................................................................... 21
35.33 - Issue Analysis ........................................................................................................... 21
35.34 - Other Considerations When Reviewing Appeals ..................................................... 22
35.4 - Appeal Deciding Officer ................................................................................................ 23
35.5 - Appeal Disposition and Notification .............................................................................. 24
35.51 - Appeal Decision ....................................................................................................... 24
35.51a - Reverse a Decision.................................................................................................. 24
35.51b - Affirm a Decision ................................................................................................... 25
35.51c - Affirm with Instructions ......................................................................................... 25
35.52 - No Appeal Decision.................................................................................................. 27
35.53 - Appeal Disposition Notification ............................................................................... 27
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DURATION: This amendment is effective until superseded or removed.
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CHAPTER 30 - APPEAL PROCESSING
30.1 - Appeal Numbering Format
30.2 - Numbering Convention
A unique number must be assigned to each appeal processed using the following numerical
convention:
FY-REGION-NF-SEQUENTIAL NUMBER-REGULATION NUMBER
1. Fiscal Year (FY). Use the fiscal year in which the appeal is received. Use the format
of “05” (2005), “06” (2006), and so forth.
2. Region. Use the established two digit numbering system Regions 01-06, 08-10, and
13 (Washington Office).
3. National Forest (NF). Use the Forest numbering system maintained by the Regional
Office.
4. Sequential Number. Start with the number 0001 for the first appeal received in the
fiscal year (FY).
5. Regulation Number. Cite the regulation under which the appeal is filed as either Title
36, Code of Federal Regulations, part 215 (36 CFR part 215) “215,” 36 CFR part 217 “217,” or
36 CFR part 251, subpart C “251.”
30.3 - Applying Numbering Convention
1. Forest Level Coding. When the Forest Supervisor is the appeal deciding officer,
include the NF number as the third set of numbers in the numbering sequence. For example,
05-06-04-0001-215.
2. Regional Level Coding. When the Regional Forester is the appeal deciding officer,
Code the NF place in the numbering sequence with double-zeros. For example, 04-06-00-0010215.
3. National Level Coding. When the Chief is the appeal deciding officer, code the
Region block with 13 and the NF block with double-zeros. For example, 04-13-00-0005-215.
Do not assign an appeal number to an appeal request that has not yet been processed and
accepted as a valid appeal.
31 - NOT PROCESSING AN APPEAL REQUEST
(See 36 CFR 215.14(c) for additional direction.)
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CHAPTER 30 - APPEAL PROCESSING
31.1 - General Provisions
The appeal deciding officer shall not process an appeal request when any of the following
conditions exist:
1. There is a question of appellant identity.
2. The appellant has not provided a reasonable means of contact.
3. The decision being appealed cannot be identified.
4. The appeal is illegible.
When the appeal deciding officer determines that an appeal request will not be processed, the
appeal deciding officer may notify the submitter in writing (if an address is available). The letter
(ex. 01) should not include evidence that the appeal procedures have been exhausted.
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31.1 - Exhibit 01
Appeal Request Will Not Be Processed
File Code:
Date:
Ms. June Jackson
P.O. Box 12345
Anytown, SS 99999
1570-1
September 6, 2003
CERTIFIED MAIL - RETURN
RECEIPT REQUESTED
Dear Ms. Jackson:
[Information about the appeal request] On August 20, 2003 we received your letter concerning
District Ranger Samuel Jones’s July 15, 2003 decision on the Springs Integrated Resource
Project, Walker Ranger District, Cass National Forest.
[Discussion of why it cannot be processed – tie to rule] Your appeal request was received
electronically. However, the electronic format used is not compatible with our computer system.
[If you tried to contact, say so] We tried contacting you but were unsuccessful.
Your e-mail was sent in a timely manner, however, in accordance with 36 CFR 215.14(c), it will
not be processed. [This closing sentence is required.] This determination does not constitute a
formal appeal disposition pursuant to 36 CFR 215.18(c).
Sincerely,
/s/ Jane Smith
JANE SMITH
Appeal Deciding Officer [Appeal Position]
Forest Supervisor [Position Title]
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CHAPTER 30 - APPEAL PROCESSING
31.2 - Electronic Submissions
The legal notice provides the acceptable format for submitting electronic appeals (36 CFR
215.7(b)(2)(i)). An appeal not filed in the proper format is an example of illegibility (36 CFR
215.14(c)(4)). If possible, contact the sender within the appeal filing period and ask them to
resubmit the appeal in the proper format before deciding not to process the appeal for illegibility.
31.3 - Appeals Submitted in a Foreign Language
Appeals are not required to be written in English. Therefore, make a reasonable attempt to
translate an appeal written in a foreign language before deciding not to process it.
32 - DISMISSAL OF APPEAL WITHOUT REVIEW
(See 36 CFR 215.16 for additional direction.)
32.1 - Cause for Dismissal
The appeal deciding officer shall dismiss an appeal without review when one or more of the
conditions listed in Title 36, Code of Federal Regulations, section 215.16(a) (36 CFR 215.16(a)),
exist.
32.11 - Requested Change Cannot Be Granted
An appeal shall be dismissed when the request is for relief or change to the project that cannot be
granted under current laws or regulations, such as requests that:
1. All projects that include cutting down timber not be allowed to go forward.
2. The Endangered Species Act be changed.
3. All livestock grazing be prohibited on National Forests.
Process an appeal that does not articulate the specific change(s) in the decision the appellant
seeks (36 CFR 215.14(b)(6)) but the desired changes can be discerned from the appeal points.
32.12 - Non-Substantive Comments
(See sec. 21 for direction on evaluating who may file an appeal.)
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When an appellant provides comments that the responsible official deems non-substantive, the
appeal deciding officer shall review that decision and shall dismiss the appeal without review if
the appeal deciding officer concurs that the individual or organization did not submit a
substantive comment(s) (36 CFR 215.16(a)(6)). The appeal shall be processed if the appeal
deciding officer finds that the comment(s) was substantive.
32.13 - Insufficient Information
36 CFR 215.14(a) requires appellants to provide sufficient project- or activity-specific evidence
and rationale to show why the responsible official’s decision should be reversed. In addition,
36 CFR 215.14 (b) lists nine items that a written appeal must include. Incomplete responses to
items (6) through (9) could make a review of an appeal difficult and are conditions under which
the appeal deciding officer can dismiss the appeal (36 CFR 215.16(a)(8)).
32.2 - Notification of Dismissal Without Review
The appeal deciding officer is responsible for notifying the appellant(s) and the responsible
official of the reasons for dismissal of an appeal without review (36 CFR 215.16(c)). Appeals
with multiple names must identify the lead appellant (36 CFR 215.14(b)(3)). When the lead
appellant is not identified, the appeal deciding officer may appoint the first name listed on the
appeal as the lead appellant (36 CFR 215.8(b)(2)(ii)). Exhibit 01 is an example of a dismissal
letter.
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32.2 - Exhibit 01
Appeal Will Be Dismissed
File Code:
Date:
Appeal #:
Ms. June Jackson
Interested Organization
P.O. Box 12345
Anytown, ST 99999
1570-1
September 6, 2003
03-07-02-0004-215
CERTIFIED MAIL – RETURN
RECEIPT REQUESTED
Dear Ms. Jackson:
[Information about the appeal] On August 20, 2003, we received your appeal of District Ranger
Samuel Jones’s July 15, 2003 decision on the Springs Integrated Resource Project, Walker
Ranger District, Cass National Forest. Your appeal was filed on behalf of Interested
Organization. Your appeal was postmarked on August 14, 2003; the appeal filing period closed
August 15, 2003. Your appeal was timely and is being processed under the provisions of 36
CFR 215 and is assigned control number 03-07-02-0004-215.
[Discussion of what the appeal did or did not contain as it relates to reasons to dismiss] The
only relief you requested in your appeal is that “…all power companies in the state be required to
bury their transmission lines so that predators are less likely to electrocute themselves.”
[Discussion of the appropriate section of 36 CFR 215.16 and why the appeal is being dismissed]
I cannot grant the relief you request because it is not in my authority; for this reason, I am
dismissing your appeal without review of the merits (36 CFR 215.16(a)(3)). This determination
does not constitute a formal appeal disposition pursuant to 36 CFR 215.18(c).
Sincerely,
/s/ Jane Smith
JANE SMITH
Appeal Deciding Officer [Appeal position]
Forest Supervisor [Position Title]
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CHAPTER 30 - APPEAL PROCESSING
33 - INFORMAL DISPOSITION
(See 36 CFR 215.17 for additional direction.)
33.1 - Purpose
The Appeals Reform Act (ARA) (Pub. L. 102-381, 106 Stat. 1419) requires that a designated
employee of the Forest Service offer to meet with each individual who files an appeal in an
attempt to informally dispose of the appeal. The focus of this meeting is to discuss resolution of
the issues raised in the appeal. The meeting provides the responsible official an opportunity to
be certain that the appellant’s concerns have been considered.
33.2 - Offer to Meet
The offer to meet and discuss resolution shall be made as soon as practicable after the
responsible official becomes aware of an appeal (36 CFR 215.17(a)). “As soon as practicable”
means there is an expectation that it will be done at the earliest possible time. If the appellant
desires an initial meeting, it must take place within 15 days of the close of the appeal period
(36 CFR 215.17(b)). Efforts to contact appellants should be documented and become part of the
appeal record.
33.3 - Meeting
33.31 - Location and Participants
The responsible official shall determine the time and place of informal disposition meetings and
may, if appropriate, consider a field meeting in the vicinity of the project. If participants cannot
be physically present at the informal disposition meeting, alternative types of meetings, such as
telephone or video conferences may be used (36 CFR 215.17(c)). The responsible official does
not have to provide public notice of the meeting, but the meetings must be open to the public
(36 CFR 215.17(c)). Information regarding a meeting shall be provided when requested. The
responsible official has maximum discretion and flexibility to hold informal disposition meetings
in a manner which will increase the chance of achieving resolution of the appeal points.
The responsible official may delegate a representative to act on their behalf; however, the
responsible official is encouraged to personally meet with appellants to resolve issues prior to
review and decision of an appeal.
33.32 - Meeting Recording or Transcript
Electronic recording or transcribing informal disposition meetings is permissible with the
knowledge of all participants. However, submitting recordings or transcripts of the meeting to
the appeal reviewing officer or to the appeal deciding officer is not permissible because it may
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provide information unavailable at the time the original decision was signed by the responsible
official. The appeal reviewing officer’s recommendation and appeal deciding officer’s appeal
disposition are based on the appeal record and decision documentation (36 CFR 215.19(b) and
215.18(a)). Therefore, transcripts or recordings submitted shall not be reviewed and should be
returned to the sender.
33.4 - Outcome
The responsible official may continue to meet with the appellant(s) during the 45-day appeal
disposition period. The responsible official is encouraged to keep the appeal reviewing officer
and appeal deciding officer apprised of progress toward resolution without discussing the merits
of the issues.
Resolution of an appeal through informal disposition is not the same as, nor should it be referred
to as, a “settlement agreement.” The responsible official has the authority to resolve issues in an
appeal, but should be cautious about withdrawing decisions and agreeing to more analysis simply
to resolve appeals. The informal disposition should work toward resolving some or all of the
issues related to the appeal and proceeding with implementation of all or part of the decision. If
informal disposition results in the need to supplement or revise the environmental document,
follow the direction in FSH 1909.15, section 18.
The responsible official shall provide the appeal deciding officer with the results of informal
disposition in writing (36 CFR 215.17(d)) and include only the date, location, attendees, and
whether there was resolution of all or parts of the appeal. Any notes, summary of the discussion,
or other information from the informal disposition should not be transmitted to the appeal
deciding officer or appeal reviewing officer because this could be construed as supplementing
the appeal record. Documentation of the informal disposition meeting (ex. 01) becomes a part of
the appeal record.
36 CFR 215.17(d)(1) requires appellants who want to withdraw all or part of an appeal to do so
in writing to the appeal deciding officer within 15 days of the agreement. The appeal deciding
officer shall dismiss without review all or part of the appeal which the appellant withdraws
(36 CFR 215.16(a)(9)).
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33.4 - Exhibit 01
Informal Disposition Meeting Documentation
File Code: 1570-1
Date: September 1, 2003
Subject: Informal Disposition Meeting, Appeals #03-07-02-0004 and 03-07-02-0005
To:
Jane Smith, Appeal Deciding Officer
[Date and location] On August 30, 2003, a meeting was held at the Walker Ranger District
office with those who appealed the decision on the Springs Integrated Resource project. We also
visited the site of the project.
[Attendees] Present at the meeting were: June Jackson of Interested Organization, Karl Knuss of
Local Mill, Amy Anders, ID Team Leader, and Bob Bates, Forest Planner, and District Ranger
Samuel Jones.
[Results. Note that only the agreement is documented, not any of the discussion leading to it.]
On the issue concerning maps (appeal #03-07-02-0004, pg. 2), we agreed that the maps used
during project planning will be made available. These maps show: 1) the ecological corridor
along the Bear River and Monte Cristo Ranges, and 2) the lynx linkage habitat. The public will
be notified when the maps are posted on the web. Hardcopy maps will be made available, if
requested. We did not reach resolution on the other issues.
The appellants have been notified that they must withdraw all or part of their appeal by letter in
accordance with 36 CFR 215.17(d)(1).
/s/ Samuel Jones
SAMUEL JONES
District Ranger
cc: Appellants
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CHAPTER 30 - APPEAL PROCESSING
34 - TRANSMITTAL OF DECISION DOCUMENTATION
(See 36 CFR 215.15 (e)(1) for additional direction.)
The responsible official shall transmit the decision documentation to the appeal reviewing officer
within 15 days of the close of the appeal-filing period (36 CFR 215.15(e)(1). The decision
documentation may include an index as displayed in exhibit 01. Chapter 40 of this handbook
describes options for assembling the appeal record which can also be used for assembling the
decision documentation.
A transmittal letter is not required by regulation. However, the appeal deciding officer may
request one to aid in the review. Check with your Regional or Forest appeals coordinator for
local requirements. The responsible official may not supplement the record or respond to the
appellant’s issues in the transmittal letter. If used, a transmittal letter provides citations or a
“roadmap” to the decision documentation by identifying where the issues are addressed in the
decision documentation. If a transmittal letter containing explanatory narrative is received, it
should be returned immediately with direction to provide a proper record without the explanatory
narrative. The responsible official should provide a copy of the transmittal letter (ex. 02) to the
appellant(s).
The decision documentation must contain a list of the individuals and organizations that have
submitted substantive comments (36 CFR 215.15(e)(1)). If the responsible official believes the
appeal should be dismissed because it was untimely (36 CFR 215.16(a)(1-2)) or because the
individual or organization did not provide timely substantive comments (36 CFR 215.16(a)(6)),
the transmittal of the decision documentation must include copies of both the legal notice of the
decision and comment period from the newspaper of record and the comments, if any, submitted
by the individual or organization appealing, respectively.
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34 - Exhibit 01
Optional Decision Documentation Index
APPEAL #92-01-0-0008
DECISION DOCUMENT INDEX
No.
1.
Date
1/29/92
Type
FEIS
Pages
975
Author
USFS, TNF
Recipient
N/A
2.
2/7/91
Letter
3
A. Stein
3.
1/91
Memo
100
K.Mitchell
District Ranger
Kessler &
Associates
4.
1989
Report
59
DeMeo, T.E.
Loggy, W.D.
N/A
ACZ
Title/Description
Kensington Gold Project
Environmental Impact
Statement, Volumes I
and II.
Baseline review status,
10/25/90.
Oceanographic and
Marine Biologic and
Toxicologic Technical
Memoranda
Compendium.
Development of
Wetlands Mapping
procedures for Forest
Planning in Southeast
Alaska.
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34 - Exhibit 02
Optional Transmittal Letter
File Code:
1570-1
Date: August 25, 2003
Subject:
Springs Integrated Resource Transmittal Letter, Appeal #03-07-02-0004-215
To:
Jane Smith, Appeal Deciding Officer
In accordance with 36 CFR 215.15(e)(1) the decision documentation is hereby submitted for appeal
number 03-07-02-0004-A215 filed by June Jackson for Interested Organization.
This transmittal letter references the Springs Integrated Resource decision documentation that addresses
the issues identified in the appeal. The decision documentation is contained in two binders. All
documents are referenced by the number located on the upper right corner of the first page of the
document. An index of the decision documentation is included in the front of each binder. The decision
documentation will be delivered on August 25, 2003.
Decision Documentation Responding to Points of Appeal
ISSUE 1: (NOA, p. 2) In coming up with the purpose and need, the agency has defined the issues
to preclude a reasonable array of alternatives.
The appellant previously commented on the purpose and need, and range of alternatives.
REFERENCE
DD, Vol. II, Doc. F5
DD, Vol. II, Doc. A-1
DD, Vol. II, Doc. A-2
DD, Vol. II, Doc. A-2.1
EA, p. 1
EA, p. 9
EA, pp. 1 to 3
SUBJECT MATTER
Appellant’s comment letter on the proposed action that mentions this issue.
Alaska National Interest Lands Conservation Act, Section 1323.
36 CFR 212.8 Ingress and Egress.
36 CFR 251 Access to Non-federal Lands.
Deep Woods Timber Company requested access to their lands in 1991.
Applicable laws and regulations are identified.
Summary of applicable laws and regulations concerning access to private land in
holdings.
The purpose and need for action are described.
ISSUE 2: Cumulative Impacts/Endangered Species
Issue 2, Contention 1: (NOA, p. 5). The EA does not adequately assess the cumulative impacts on
xx endangered species, especially from the private land.
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34 - Exhibit 02--Continued
The appellant mentioned this issue in their scoping comments.
REFERENCE
SUBJECT MATTER
DD, Vol. I, Doc. C-10
Appellant’s scoping comment letter that mentions cumulative effects on wildlife.
EA, pp. 9 to 10
Forest Plan management direction and regulatory framework for wildlife.
EA, p. 18
Table shows cumulative effects on wildlife habitat, including private and (see
footnote).
EA, p 20
Cumulative effects on old growth-dependent species are discussed.
Issue 2, Contention 2: (NOA, p. 5) Page 24 under Cumulative Effects to MIS Species notes, “Planned
Forest Service management practices are not expected to measurably affect breeding or foraging
habitats within the combined analysis areas.” The combined analysis area (including Swift Creek) does
not reflect the impacts from private land on MIS species.
Appellant mentioned this issue in their scoping comments letter.
REFERENCE
SUBJECT MATTER
Appellant’s scoping comment letter that mentions effects to MIS species.
Affected environment for MIS species is discussed
Cumulative effects to MIS species are discussed, including “timber harvest on
adjoining privately owned timber lands.”
DD, Vol. I, Doc. H-13
Fish and Wildlife Service concurrence letter on lynx.
DD, Vol. I, Doc. B-38
Specialist Report on pileated woodpecker, pine marten, and goshawk.
[Continue listing decision documentation responding to points of appeal]
DD, Vol. I, Doc. C-10
EA, pp. 20 to 29
EA, p. 24
Also included in the transmittal are:
1. Decision Documentation Index
2. List of individuals and organizations who submitted substantive comments (DD, Vol. I,
Doc. F)
3. Appellants’ comments during 30-day comment period (DD, Vol. I, Doc. C)
4. Copy of the legal notice of decision from the newspaper of record (DD, Vol. I, Doc B).
/s/ Samuel Jones
SAMUEL JONES
District Ranger
cc: June Jackson
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35 - FORMAL DISPOSITION
(See 36 CFR 215.8, 215.14(c) and 215.19 for additional direction.)
35.1 - Multiple Appeals from Individual Appellants
Multiple appeals from individual appellants of the same decision may be consolidated by the
appeal reviewing officer or the appeal deciding officer on a case-by-case basis. When appeals
are consolidated, each appellant shall receive either an appeal decision letter and the appeal
reviewing officer’s recommendation or the written notification that an appeal decision will not
be issued (36 CFR 215.18(b)).
35.2 - Single Appeal with Multiple Appellants
36 CFR 215.14(b)(3)) requires that an appeal with multiple names identify a lead appellant.
When a lead appellant is not identified, the appeal deciding officer may appoint the first name
listed as the lead appellant (36 CFR 215.8(b)(2)(ii)). When there are multiple appellants listed
on one appeal, the appeal deciding officer must determine each appellant’s eligibility to appeal
(36 CFR 215.13(b)). Each lead appellant shall receive either an appeal decision letter and the
appeal reviewing officer’s recommendation or the written notification that an appeal decision
will not be issued (36 CFR 215.18(b)).
35.3 - Appeal Reviewing Officer
The Appeal Reform Act (ARA) (Pub. L. 102-381, 106 Stat. 1419) requires that an appeal
reviewing officer:
1. Review and recommend in writing to the official responsible for deciding the appeal,
the appropriate disposition of the appeal.
2. Be a line officer at least at the level of the agency official who made the initial
decision on the project or activity that is under appeal.
3. Not have participated in the initial decision.
4. Not be responsible for implementation of the initial decision after the appeal is
decided.
Using these guidelines, all Forest Service line officers are designated appeal reviewing officers
(FSM 1571). Persons acting in a line officer position, such as an Acting District Ranger, are
only an appeal reviewing officer when they are filling vacant positions with full delegated acting
authority for the position. There is no required format for assigning an appeal reviewing officer
to a particular appeal. Regions and Forests have the discretion to assist appeal deciding officers
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in assigning appeal reviewing officers to specific appeals. The appeal reviewing officer does not
have to be from the same administrative unit as the appeal deciding officer, nor do they have to
be at the same grade as the responsible official, but must be from the same organizational level
or higher.
The intent of the appeal review is for a fair and objective review. For this reason, there must not
be private discussions of the merits of the appeal between the appeal reviewing officer and the
responsible official, or between the appeal reviewing officer and the appellant (68 FR 3359333594; June 4, 2003). Similarly, any staff assisting the appeal reviewing officers in their review
should not be closely involved with the project.
The appeal reviewing officer’s recommendation is an independent review, must be in writing,
and reflect a thoughtful review of the issues in the appeal, taking into consideration whether
those issues were addressed in an appropriate manner in the decision documentation. The level
of review focuses on how the decision being appealed adheres to law, regulation, policy, and
consistency with the overall mission of the Forest Service.
35.31 - Appeal Reviewing Officer Recommendation
The written recommendation letter (ex. 01) from the appeal reviewing officer is based on the
appeal and the decision documentation (36 CFR 215.19(b)) and must be sent to the appeal
deciding officer (36 CFR 215.18(a)). The timeframe for the recommendation is not specified in
the ARA or regulation. However, the appeal deciding officer shall have the recommendation
before making a decision. Check with your Regional or Forest appeals coordinator for local
requirements.
A recommendation is required on all appeals, except those not processed (36 CFR 215.14(c)) and
those dismissed (36 CFR 215.16). When an appeal decision letter is issued, the appeal
recommendation should be attached. The appeal recommendation is releasable upon request
when an appeal notification letter is issued (36 CFR 215.18(b)(2)). The recommendation is
considered deliberative information under the Freedom of Information Act (FOIA) and shall not
be released earlier than the notification letter or appeal decision (36 CFR 215.19(b)).
The recommendation should be well reasoned, written in plain English, use the appellant’s own
words (when possible), accurately present citations and references, and generally included the
following components:
1. A statement containing the appeal reviewing officer’s recommendation.
2. Identification of the appeal regulation that applies.
3. The identity of the appellant(s).
4. The decision being appealed.
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5. The identity of the responsible official.
6. The date the decision was signed.
7. The date the legal notice of decision was published in the newspaper of record.
8. Where the project is located (Forest, District, and other identifying location
description).
9. The issues raised in the appeal and responses.
10. A recommendation with rationale.
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35.31 - Exhibit 01
Appeal Reviewing Officer’s Recommendation
File Code: 1570-1
Date: September 15, 2003
Subject: ARO Recommendation - Spring Integrated Resource
#03-07-02-0004-215 and 03-07-02-0005-215
Walker Ranger District, Cass National Forest
To:
Jane Smith, Appeal Deciding Officer
As the designated Appeal Reviewing Officer, this is my recommendation on disposition of the
appeal filed by June Jackson for the Interested Organization under the regulations at 36 CFR
215. District Ranger Samuel Jones signed the Decision Notice (DN) authorizing the Spring
Integrated Resource project on July 15, 2003 and the legal notice of the decision was published
on the same day.
DECISION BEING APPEALED
The Spring Integrated Resource project would thin about 2,077 acres of overstocked forest
stands to: remove ladder fuels and reduce the likelihood of stand replacing crown fire; improve
tree vigor by providing space for retained trees to grow; provide merchantable wood in an
economic offering; and, maintain stand growth toward late-successional condition in the Late
Successional Reserves (LSR) and Riparian Reserve. An estimated 10.4 million board feet of
timber would be removed (average of about 5,000 board feet per acre) from the project area
using tractor (1,782 ac.), cable (101 ac.), and helicopter (193 ac.) yarding systems. Harvest
related fuels would be “treated on site” (1,638 ac.) by mastication, chipping, or burning, tractor
piled (128 ac.), handpiled (294 ac.), or whole tree yarded (17 ac.). Other activities include
reopening 2.0 miles of decommissioned road, construction of 2.1 miles of new road, and
reconstruction of about 6.0 miles of existing road.
APPEAL SUMMARY
The legal notice beginning the 30-day comment period was published June 5, 2003. Ms.
Johnson submitted substantive comments for Interested Organization during the 30-day comment
period and has eligibility to appeal. The 45-day appeal period ended on August 15, 2003; the
appeal was postmarked August 14, 2003 and is timely. Ms. Jackson requested reversal in whole
of the DN/FONSI and a requirement the District prepares an Environmental Impact Statement
(EIS) for the project.
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35.31 - Exhibit 01--Continued
ISSUES AND RESPONSES
ISSUE 1: “Analysis and disclosure of effects to wildlife is inadequate.” (Appeal, p. 6).
Contention A: “The EA fails to provide any documentation that 100 acres of the best suitable
habitat around NSO activity centers has been protected.” (Appeal, p. 6).
RESPONSE: The Forest Land and Resource Management Plan (LRMP) specifies protection of
100 acres of owl habitat around all known owl activity centers within the range of the northern
spotted owl (NSO) when operating in LSR and that management of stands in the Matrix
surrounding these areas will be designed to reduce risks of natural disturbance. (LRMP 4-63).
The EA summarizes the effects to threatened, endangered, sensitive (TES), and proposed species
in Section III-29 and states there would be no adverse affects on NSO critical habitat within the
analysis area. The Forest consulted informally with U.S. Fish and Wildlife Service (FWS) in
February 2002 and requested a letter of concurrence on the above stated determinations. FWS
concurred with the may affect, not likely to adversely affect determinations. (FWS Letter of
Concurrence, March 26, 2003)
NSO activity centers will be protected and enhanced through implementation of guidelines
consistent with recovery of this species (EA Section III-29). Measures will be implemented to
avoid and minimize impacts to NSO and its critical habitat. (FWS Letter of Concurrence,
March 26, 2003).
I find the District Ranger provided sufficient documentation that habitat around NSO activity
centers will be protected in compliance with the LRMP.
Contention B: “The EA fails to adequately analyze and disclose direct, indirect and cumulative
impacts to TES and MIS wildlife species within the project area.” (Appeal, pp. 7-8).
RESPONSE: Analysis and disclosure of effects (including direct, indirect, and cumulative
effects) on TES fisheries, plants, and wildlife including management indicator species (MIS)
have been disclosed in the EA in Section III pages10-13 and pages 19-29.
I find the District Ranger provided sufficient documentation that discloses the direct, indirect,
and cumulative impacts to TES and MIS.
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35.31 - Exhibit 01--Continued
ISSUE 2: “The EA fails to demonstrate that the proposed actions will improve the fire resistance or
resilience of the project area.” (Appeal, pp. 11-13).
RESPONSE: This issue was raised in comments on the EA (EA, Section III, pp. 5-7). The EA clearly
documents, through narrative description and tabular data display, the difference in environmental
consequences between the No Action and Proposed Action alternatives: tree “crown scorch volume” and
“percent mortality” are both predicted to be significantly reduced following implementation of the
Proposed Action (EA, Section III, pp. 5-7).
I find The EA adequately demonstrates the Proposed Action will improve fire resistance.
ISSUE 3: “The EA fails to specifically evaluate the effectiveness of BMPs and mitigation measures.”
(Appeal, p. 13).
RESPONSE: This issue was raised in EA comments and addressed in the EA, Appendix A, pg. 6,
Comment 20. Best Management Practices (BMPs) (USFS, R-7, 1986) were developed by the Forest
Service, certified by the State Water Resources Control Board, and approved by the U.S. Environmental
Protection Agency as the most effective means of controlling non-point sources of pollution (USFS,
1981). The Forest Service in Region 7 employs a BMP Evaluation Program to monitor implementation
and effectiveness (USFS, R-7, 1992). An evaluation of the effectiveness of BMPs is beyond the scope of
this project.
Mitigation measures for this project are included in the proposed action and expressed as components of
the action. These resource protection provisions are assessed in the analysis of environmental effects as a
component of the proposed action. (EA, Section III). The appellant did not identify specific instances
where the effectiveness of protection provisions is in question.
I find the protection provisions incorporated as components of the proposed action and DN are reasonable
and consist of common or standard applications to avoid or limit resource impacts. Protection provisions
are also accounted for in the analysis of consequences.
RECOMMENDATION
A review was conducted pursuant to and in accordance with 36 CFR 215.19. The review included the
comments received during the comment period, how the District Ranger considered this information, the
appellant's objections, and recommended changes.
Based on review of the record, it is recommended that the District Ranger's decision be affirmed.
/s/ Susan James
SUSAN JAMES
Appeal Reviewing Officer [Appeal Position]
District Ranger [Position Title]
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35.32 - Appeal Reviewing Officer Review of Issues
35.32a - Scope
Only issues that are within the scope of the decision can be addressed (36 CFR 215.14(b)(6)-(9)).
Requests for relief that involve decisions which are not connected to the decision being reviewed
are considered beyond the scope of the project decision.
Allegations that challenge decisions made in land management plans are not reviewed in project
level appeals (36 CFR 215.14(b)(6)). However, if an appellant can clearly demonstrate why, in
the context of the project decision under appeal, a change in the land management plan should be
considered, the appeal recommendation should respond to this issue.
Each issue may be addressed. However, when there is a common thread or allegation, issues can
be combined. If there are some over-arching issues, it is also acceptable for the review to focus
on just those issues.
35.32b - Process
There are several options available in conducting the review of the issues in an appeal. The
following examples are for illustrative purposes only, since 36 CFR 215 does not specify any
particular method to use. Check with your Regional or Forest appeals coordinator for assistance
with local requirements.
1. Technical Staff Working Directly with the Appeal Reviewing Officer, Either as a
Team or Individually. This option maintains quality and consistent appeal responses when the
same technical staff is used repeatedly.
2. Pre-established Teams Drawing on the Expertise of Forest Service Employees from a
Region, Zone, Forest, or Other Geographic Area. This option provides appeal review assistance
while fostering continuous improvement in environmental planning and decision-making at the
field level, but necessitates active involvement by the local appeals staff to aid in developing
consistent high quality appeal responses.
3. Appeal Reviewing Officer. The appeal reviewing officer may do the entire review
alone.
35.33 - Issue Analysis
When identifying and analyzing an appeal, the appeal reviewing officer should focus the review
on the four following components:
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1. The Issue. Identify what the appellant is concerned about. An issue is an alleged
violation of law, regulation, or policy made by an appellant. The appeal reviewing officer’s
recommendation responds to the appeal issues. Original issue wording can be refined or issues
regrouped.
2. The Rule. Identify the law, regulation, policy or other direction that applies to the
issue. The rule describes the authority that has allegedly been violated. The rule can be any
legal authority or authorities, for example a law, regulation, or agency policy. Agency policy is
found in the Forest Service Manual and the Forest Service Handbook.
Use a hierarchy of authority when discussing this component. First law, then regulation, and
third policy. In some instances, case law might be helpful also. Before citing case law, check
with your Regional or Forest appeals coordinator. Remember that law and case law are not
synonymous.
3. The Analysis. Describe how the rule (component 2) applies to the relevant facts of the
project. This component is the key part of the review as it explains how the rule applies to the
project and whether the project is in compliance. Anyone reading the review should be able to
follow the analysis in applying the rule to the facts of the project. Relevant facts about the
project from the decision documentation should be referenced in this section. Other appeal
review considerations may be addressed where appropriate (sec. 35.34).
4. The Conclusion. Describe the finding(s). The conclusion is the end result of the
analysis. Conclusions should restate key points from the analysis and include a firm position on
whether the project meets the law, regulation, or policy on each specific appeal issue.
35.34 - Other Considerations When Reviewing Appeals
Appeal reviewing officers should also consider the following factors during an appeal review:
1. Activities Challenged. Look at the activities that are challenged versus the activities
the decision authorizes. Focus the review and response on those activities raised by the
appellant. For example, a decision authorized both timber harvesting and fisheries habitat
restoration projects, but the appellant only challenges the timber harvesting. In this case, the
review and response may be limited to timber harvesting.
2. Detail of Allegations. The review and response should focus on the specific
allegations made. For example, if the appellant makes general allegations regarding sensitive
species, but only provides specific evidence regarding one or more species, the response may be
limited to those species identified. If the appellant challenges the effectiveness of certain
mitigation measures, the response could discuss only those measures. If the appellant raises
cumulative effects in a general sense, the response may be equally general in nature.
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3. New Issues. When an issue raised in an appeal was not raised prior to appeal, note
and document information addressing it in the decision documentation.
4. Erroneous Information. Address an appellant’s allegation of erroneous information.
When the correct information is part of the record, briefly note it to set the record straight.
5. Scientific Documents. Scientific information offered with the appeal but not available
to the responsible official when the decision was made should be reviewed for applicability to
the decision. This consideration may lead to instructions to consider new information.
6. Changed Circumstances/New Information. Examples of events that an appeal
reviewing officer might consider under changed circumstances: a major flood subsequent to the
decision, catastrophic fire, fish kill, or other events that might alter cumulative effects. Examples
of new information may include applicable scientific documents and new Endangered Species
Act listings. These considerations may lead to an appeal decision with instructions.
7. Previously Addressed Appeal Issues. Appeal issues often recur. Check with
adjoining administrative units and the Regional Office to ensure consistency.
35.4 - Appeal Deciding Officer
(See 36 CFR 215.8, and 215.18 for additional direction.)
The appeal deciding officer is the next higher-level supervisor of the responsible official (36
CFR 215.2) and is responsible for the disposition of an appeal. This responsibility includes
affirming or reversing the responsible official’s decision or deciding not to issue an appeal
decision (36 CFR 215.8 and 215.18(b)). The intent is to foster a healthy working relationship
and oversight within the chain of command (68 FR 33591; June 4, 2003).
The desirable situation is for the line officer that supervises the responsible official to be
involved in the review of an appeal as the appeal deciding officer. Therefore, if the next higherlevel supervisor is unavailable for a short period of time, the decision should be scheduled, when
practical, for a time when the next higher-level supervisor is available. If, however, the appeal
deciding officer is unavailable for an extended period of time, a designated acting, with written
delegated authority, may assume the appeal deciding officer’s responsibilities.
The appeal deciding officer shall conduct a fair and objective review. For this reason, there must
be no private discussions of the merits of the appeal between the appeal deciding officer and the
responsible official, or between the appeal deciding officer and the appellant (68 FR 33593;
June 4, 2003). Similarly, any staff assisting an appeal deciding officer’s review should not be
closely involved with the projects.
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The review is based on the appeal record and the appeal reviewing officer’s recommendation
(36 CFR 215.18(a)). The focus of the review is on how well the decision adheres to law,
regulation, policy, and consistency with the overall mission of the Forest Service.
35.5 - Appeal Disposition and Notification
(See 36 CFR 215.18(b)(1) for additional direction.)
Appeal disposition results in one of the following actions:
1. An appeal decision is issued (36 CFR 215.18(b)(1) and sec. 35.51); or
2. An appeal decision is not issued and a notification letter is given to the appellant (36
CFR 215.18(b)(2) and sec. 35.52).
Appeals processed under the authority of 36 CFR 215 are not “denied” or “remanded,” but rather
are “affirmed” or “reversed” either in whole or in part and may include instructions for further
action.
35.51 - Appeal Decision
The appeal decision represents the last step in the appeal process and provides the public record
of reasons why the appeal deciding officer made the final administrative decision.
An appeal decision may only be issued within 45 days following the end of the appeal filing
period (36 CFR 215.15(e)(2)). When the appeal decision is not issued, a notification letter
(sec. 35.52) shall be sent to the appellant(s) (36 CFR 215.18(b)(2)).
When there are multiple appeals of a single decision, a consolidated decision may be issued
(36 CFR 215.8(b)(1)). Each appellant or lead appellant shall receive written notification of the
disposition of their appeal. A copy of the appeal reviewing officer’s recommendation must be
attached to the appeal decision letter (36 CFR 215.19(b)). When an appeal deciding officer
concurs with the recommendation, the appeal decision may briefly explain why the appeal
deciding officer concurred with the recommendation. However, when the decision is different
than the appeal reviewing officer’s recommendation, the appeal decision should clearly explain
why the decision is different from the appeal reviewing officer’s recommendation.
35.51a - Reverse a Decision
The responsible official's decision may be reversed in whole or part. Instructions for further
analysis may be included in the decision. See section 35.53, exhibit 01, for a sample letter
notifying the appellant of the reversal of the responsible official’s decision in whole or in part.
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35.51b - Affirm a Decision
The responsible official’s decision may be affirmed. See section 35.53, exhibit 02, for a sample
letter notifying the appellant that the decision is affirmed.
35.51c - Affirm with Instructions
The responsible official’s decision may be affirmed with instruction or conditions prior to
implementing a project or activity. See section 35.53, exhibit 03, for a sample letter notifying
the appellant that a decision is affirmed with instructions.
Instructions shall be used judiciously in situations where it is necessary for the responsible
official to address new information presented in the appeal, clarify the appeal record, or add a
document in existence prior to the decision to the record. For example, a document used in the
development of the decision, but overlooked in the compilation of the appeal record.
Instructions cannot be used to remedy a legally-deficient decision; these decisions must be
reversed. Instructions may include a date by which the instructed task must be completed.
Examples of reasons to affirm with instructions include:
1. A minor correction made to address an appellant's concerns. For example, a map
correction, where the project map erroneously placed a proposed road in a wilderness area or a
table that has acreage figures that do not match with the analysis narrative.
2. New information that should be considered by the responsible official. For example,
new or updated data research results. New information may require correction, supplementation,
or revision of the environmental document, a new comment period, or a new subsequent decision
(36 CFR 215.3(d)). Exhibit 01 displays the process when an appeal decision is affirmed with
instructions concerning new information or changed circumstances.
3. The appeal decision identifies a question or lack of clarity that is easily verified by the
responsible official. For example, the decision identified that standard snag mitigation measures
would be incorporated into the project, but never clearly identified what those were. The
instruction might be to clearly identify the specific snag mitigation measures prior to
implementation.
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35.51c - Exhibit 01
Appeal Decision Affirmed with Instructions Process
CFR215.18(b)(1): Appeal decision
affirmed with instructions
concerning new information or
changed circumstances 1.
Follow FSH
1909.15, Chapter
10, Sec. 18
Determination a
Revised/Supplemented EA/EIS is
Needed.
Original Decision
Unchanged:
- EA & FONSI, no new
decision
- EIS-ROD specifies no
change in original
decision
Actions not subject to
Appeal (CFR 215.12(b)).
Determination a
Revised/Supplemented EA/EIS is
NOT needed.
Legal Notice and Comment on
EA/EIS Required (CFR 215.3(d))
Original Decision Unchanged:
No Further Action Necessary –
Actions not subject to Appeal
(CFR 215.12(b)). No legal
notice and/or opportunity to
comment issued (CFR
215.4(d))
Changed Decision
(DN/ROD) Required
New Decision Subject to
Appeal, but only portion of
decision that is changed
(CFR 215.11(b)) Individuals
or organizations must have
standing (e.g., commented on
new EA/EIS, filed within 45
day appeal period, …)
1
To affirm a decision in whole, all appeal issues
must be affirmed. A “Reversed Appeal
Decision” results in NO DECISION to
implement.
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35.52 - No Appeal Decision
The appeal deciding officer has the discretion whether or not to issue an appeal decision (36 CFR
215.18(b)(2)). When no appeal decision is issued, a notification letter must be sent to the
appellant within 5 days following the end of the appeal review period (36 CFR 215.18(b)(2)).
There is no set format for the notification letter, and neither the statute nor 36 CFR 215 specifies
that a reason must be given. Section 35.53, exhibit 04, is an example of a notification letter.
35.53 - Appeal Disposition Notification
The appeal deciding officer shall notify appellants in writing of their disposition of the appeal.
At a minimum, the appeal decision letter must include:
1. A statement that the letter is an appeal decision.
2. State what appeal regulation applies.
3. Identify the appellant(s).
4. The decision being appealed, responsible official, and the history or timeline of the
appeal. For example, the date the decision was signed and the date of the legal notice.
5. A summary of the appeal reviewing officer’s recommendations and rationale for
agreeing or disagreeing with the recommendation.
6. A summary of the findings and the appeal decision.
7. A final paragraph that advises the appellant that this is the final administrative
determination.
8. When the decision may be implemented.
Exhibit 01 is a sample letter for an appeal decision that reverses the responsible official’s
decision. Exhibit 02 is a sample letter for an appeal decision affirming the responsible official’s
decision. Exhibit 03 is a sample of a letter for an appeal decision affirming with instructions the
responsible official’s decision. Exhibit 04 is a sample of a notification letter that an appeal
decision will not be issued and that the responsible official’s decision constitutes the final agency
action.
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35.53 - Exhibit 01
Example of an Appeal Decision
Reversing the Responsible Official’s Decision
File Code:
Appeal No:
Date:
Ms. June Jackson
Interested Organization
P. O. Box 12345
Anytown, SS 99999
1570-1
03-07-02-0004-215
September 28, 2003
CERTIFIED - RETURN
RECEIPT REQUESTED
Dear Ms. Jackson:
On August 14, 2003, you filed a notice of appeal on behalf of the Interested Organization. Your
appeal was filed pursuant to 36 CFR 215. Forest Supervisor Samuel Jones signed the Record of
Decision (ROD) selecting Alternative 2 of the Sheep Basin project on July 15, 2003 and the legal
notice of the decision was published on the same day.
I have reviewed the appeal record, including your appeal, the ROD, Environmental Impact
Statement, and supporting documentation in the project record. I have weighed the
recommendation from the Appeal Reviewing Officer (ARO) and incorporated it into this
decision. A copy of the ARO’s recommendation is enclosed. This letter constitutes the appeal
decision on the specific relief requested.
FOREST ACTION BEING APPEALED
The Sheep Basin project would allow the harvest of approximately 325 acres (providing
approximately 5.2 million board feet (MMBF) of timber), the construction of 1.8 miles of road,
of which 1.2 miles would cross a medium old growth reserve, and the construction of one landto-barge log transfer facility.
APPEAL REVIEWING OFFICER’S RECOMMENDATION
Appeal Reviewing Officer James found that the Sheep Basin project EIS and project record do
not provide sufficient information to demonstrate that the Forest Supervisor was informed about
the potential direct, indirect, and cumulative effects of the Sheep Basin project and other
potential developments within and adjacent to the Bear Mountain Inventoried Roadless Area.
Therefore, he recommended that I reverse the Forest Supervisor’s decision and direct him to
prepare a supplement to the Sheep Basin project EIS to address these issues, should he decide to
proceed with the project.
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35.53 - Exhibit 01--Continued
DECISION
I concur with the ARO’s analysis as presented in the recommendation letter, and I reverse the
Forest Supervisor’s decision. The Forest Supervisor is directed to review the concerns identified
by the ARO and to take appropriate action to address them, should he decide to proceed with the
Sheep Basin project.
This decision constitutes the final administrative determination of the Department of Agriculture
(36 CFR 215.18(c)).
Sincerely,
/s/ Jane Smith
JANE SMITH
Appeal Deciding Officer [Appeal position]
Regional Forester [Position Title]
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35.53 - Exhibit 02
Example of an Appeal Decision
Affirming the Responsible Official’s Decision
File Code:
Appeal No:
Date:
Ms. June Jackson
Interested Organization
P. O. Box 12345
Anytown, SS 99999
1570-1
03-07-02-0004-215
September 28, 2003
CERTIFIED - RETURN
RECEIPT REQUESTED
Dear Ms. Jackson:
On August 14, 2003, you filed a notice of appeal on behalf of the Interested Organization. Your
appeal was filed pursuant to 36 CFR 215. District Ranger Samuel Jones signed the Decision
Notice (DN) selecting Alternative 2 of the Spring Integrated Resource project on July 15, 2003
and the legal notice of the decision was published on the same day.
I have reviewed the appeal record, including your appeal, the DN and Finding of No Significant
Impact, Environmental Assessment and supporting documentation in the project record. I have
weighed the recommendation from the Appeal Reviewing Officer and incorporated it into this
decision. A copy of the Appeal Reviewing Officer's recommendation is enclosed. This letter
constitutes the appeal decision on the specific relief requested.
FOREST ACTION BEING APPEALED
The Spring Integrated Resource project would thin about 2,077 acres of overstocked forest
stands. An estimated 10.4 million board feet of timber would be removed. Harvest related fuels
would be “treated on site”. Other activities include reopening 2.0 miles of decommissioned
road, construction of 2.1 miles of new road, and reconstruction of about 6.0 miles of existing
road.
APPEAL REVIEWING OFFICER’S RECOMMENDATION
Appeal Reviewing Officer (ARO) James found that District Ranger Jones’ decision was an
appropriate and reasonable response to direction in the Cass National Forest Land and Resource
Management Plan. The District Ranger provided information supporting the logic and rationale
in selecting Alternative 2 and described the proposed management activities. Documentation
provided by the District Ranger demonstrated compliance with applicable laws, regulations, and
policies in light of the three appeal issues raised by appellants: 1) effects to wildlife; 2) fire
resistance or resilience of the project area; and, 3) soils and watershed analyses. ARO James
recommended affirmation of the District Ranger’s decision.
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35.53 - Exhibit 02--Continued
DECISION
I agree with the ARO’s analysis as presented in the recommendation letter. The issues are not
new and the record is adequate to support the District Ranger’s decision. All appeal issues raised
have been considered. The decision is affirmed.
The project may be implemented on, but not before, the 15th business day following the date of
this letter (36 CFR 215.9(b)).
This decision constitutes the final administrative determination of the Department of Agriculture
(36 CFR 215.18(c)).
Sincerely,
/s/ Jane Smith
JANE SMITH
Appeal Deciding Officer [Appeal position]
Forest Supervisor [Position Title]
Enclosure
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35.53 - Exhibit 03
Example of an Appeal Decision
Instructions to the Responsible Official
File Code: 1570-1
Appeal No: 03-07-02-0004-215
September 28, 2003
Date:
Ms. June Jackson
Interested Organization
P. O. Box 12345
Anytown, SS 99999
CERTIFIED - RETURN
RECEIPT REQUESTED
Dear Ms. Jackson:
On August 14, 2003, you filed a notice of appeal on behalf of the Interested Organization. Your
appeal was filed pursuant to 36 CFR 215. District Ranger Samuel Jones signed the Decision
Notice (DN) selecting Alternative 2 of the Spring Integrated Resource project on July 15, 2003
and the legal notice of the decision was published on the same day.
I have reviewed the appeal record, including your appeal, the DN and Finding of No Significant
Impact, Environmental Assessment and supporting documentation in the project record. I have
weighed the recommendation from the Appeal Reviewing Officer and incorporated it into this
decision. A copy of the Appeal Reviewing Officer's recommendation is enclosed. This letter
constitutes the appeal decision on the specific relief requested.
FOREST ACTION BEING APPEALED
The Spring Integrated Resource project would thin about 2,077 acres of overstocked forest
stands. An estimated 10.4 million board feet of timber would be removed. Harvest related fuels
would be “treated on site”. Other activities include reopening 2.0 miles of decommissioned
road, construction of 2.1 miles of new road, and reconstruction of about 6.0 miles of existing
road.
APPEAL REVIEWING OFFICER’S RECOMMENDATION
Appeal Reviewing Officer (ARO) James found that District Ranger Jones’ decision was an
appropriate and reasonable response to direction in the Cass National Forest Land and Resource
Management Plan. The District Ranger provided information supporting the logic and rationale
in selecting Alternative 2 and described the proposed management activities. Documentation
provided by the District Ranger demonstrated compliance with applicable laws, regulations, and
policies in light of the three appeal issues raised by appellants: 1) effects to wildlife; 2) fire
resistance or resilience of the project area; and, 3) soils and watershed analyses. ARO James
recommended affirmation of the District Ranger’s decision.
WO AMENDMENT 1509.12-2007-1
EFFECTIVE DATE: 04/20/2007
DURATION: This amendment is effective until superseded or removed.
1509.12_30
Page 33 of 34
FSH 1509.12 - 36 CFR 215 APPEALS HANDBOOK
CHAPTER 30 - APPEAL PROCESSING
35.53 - Exhibit 03--Continued
DECISION
All appeal issues have been considered in making this decision. I agree with the Appeal
Reviewing Officer’s analysis as presented in the recommendation letter. The issues are not new
and the record supports the decision. However, there is still a concern regarding the lack of
clarity about how Best Management Practices (BMPs) were designed into the selected
alternative. The DN states that applicable BMPs will be used. In some cases, it is easy to
determine which resource protection provisions implement BMPs, but in other cases this issue
needs to be clarified. The District Ranger is instructed to send to both me and the appellants
documentation of which specific design feature implements which BMPs. The District Ranger’s
decision is affirmed with this instruction.
The project may be implemented on, but not before, the 15th business day following the
completion of the instructions (36 CFR 215.9(b)).
This decision constitutes the final administrative determination of the Department of Agriculture
(36 CFR 215.18(c)).
Sincerely,
/s/ Jane Smith
JANE SMITH
Appeal Deciding Officer [Appeal position]
Forest Supervisor [Position Title]
Enclosure
WO AMENDMENT 1509.12-2007-1
EFFECTIVE DATE: 04/20/2007
DURATION: This amendment is effective until superseded or removed.
1509.12_30
Page 34 of 34
FSH 1509.12 - 36 CFR 215 APPEALS HANDBOOK
CHAPTER 30 - APPEAL PROCESSING
35.53 - Exhibit 04
Example of a Notification
Appeal Decision Will Not be Issued
File Code:
Date:
Appeal #:
Ms. June Jackson
Interested Organization
P.O. Box 12345
Anytown, SS 99999
1570-1
October 1, 2003
03-07-02-0004-215
CERTIFIED MAIL – RETURN
RECEIPT REQUESTED
Dear Ms. Jackson:
[Information about the appeal] On August 20, 2003, we received your appeal of District Ranger
Samuel Jones’s July 15, 2003 decision on the Springs Integrated Resource Project, Walker
Ranger District, Cass National Forest. The appeal was filed on behalf of Interested
Organization. This appeal was postmarked on August 14, 2003; the appeal filing period closed
August 15, 2003. The appeal was timely. It was processed under the provisions of 36 CFR 215
and assigned control number 03-07-02-0004-215.
Pursuant to 36 CFR 215.18(b)(2), an appeal decision is not being issued. [No reasons are
required. The Appeal Deciding Officer may explain, but the rationale need not be documented.]
The project may be implemented on, but not before, the 15th business day following the date of
this letter (36 CFR 215.9(b)).
[Concluding sentence] District Ranger Jones’s decision constitutes the final agency action of the
Department of Agriculture (36 CFR 215.15(e)(3)).
Sincerely,
/s/ Jane Smith
JANE SMITH
Appeal Deciding Officer [Appeal Position]
Forest Supervisor [Position Title]