News: Judge blocks Bush admin rule limiting appeals of timber sales

	Judge blocks Bush admin rule limiting appeals of timber sales DAN BERMAN, GREENWIRE, 04/26/06 A federal judge issued a nationwide injunction this week against a provision of President Bush's Healthy Forests Initiative that limits the public's right to appeal timber sale projects and other Forest Service decisions. At issue is a 2003 rule that limits the right to appeal Forest Service projects to members of the public and interest groups that submit "substantive" written or oral comments during public comment periods. Chief Judge Donald Molloy of the U.S. District Court in Missoula, Mont., agreed with environmentalists who said the rule violated the 1992 Appeals Reform Act, a law drafted by Congress in direct response to a previous agency proposal to limit appeals of timber projects. "The substantive comment requirement was a serious problem because under these rules members of the public might not even know that a project threatened their interests until after the Forest Service deadline for public comment," said Earthjustice lawyer Doug Honnold, representing the Wilderness Society, American Wildlands and Pacific Rivers Council in the lawsuit. Previously, any citizen could file an appeal within 45 days of a Forest Service decision, so long as they provide some notice to the Forest Service that they're interested in the project, Honnold said. "It's the difference between having the courthouse door and administrative door slammed in your face," he said. The Bush administration and timber industry said the rule forcing interested parties to file substantive comments at the beginning of the planning process, rather than waiting to file appeals, helps the Forest Service plan better projects and speeds up decisions, a key goal of the Healthy Forests Initiative. "It's all about time and getting these projects out on a consistent basis," said American Forest Resource Council President Tom Partin. "Any opportunity it seems the environmentalists have to stall these things and slow them down obviously hurts the flow of the marketplace to get these forests treated." The Forest Service is still reviewing Molloy's order, said agency spokesman Dan Jiron. Categorical exclusions Molloy also sided with the environmentalists in ruling against two other Bush administration rules limiting public comment and appeal, echoing a controversial ruling by an Alaska judge last year. Last year, Judge James Singleton of the U.S. District Court in Anchorage ruled the Forest Service violated Appeals Reform Act by not allowing public comment on projects that are "categorically excluded" under the National Environmental Policy Act, including forest thinning, prescribed burns and off-road vehicle use permits. In his Earth Island Institute v. Ruthenbeck decision, Singleton also struck down a provision that allowed projects signed by the secretary or undersecretary of the Agriculture Department to bypass the appeals process. The Bush administration had argued that while the 1992 law mandated an appeals process for Forest Service actions, that did not apply to USDA actions or decisions. Using slightly different reasoning, Molloy declared both rules unlawful. "Now we have two district court judges saying those provisions are illegal," Honnold said. The Bush administration and the environmentalist plaintiffs in the Earth Island Institute case have appealed aspects of Singleton's decision to the 9th U.S. Circuit Court of Appeals (Greenwire, Dec. 2, 2005). House Resources Committee Chairman Richard Pombo (R-Calif.) and Agriculture Committee Chairman Bob Goodlatte (R-Va.) last year proposed legislation intended to clarify that projects conducted under categorical exemptions are not subject to administrative appeals. A House GOP aide today said that Molloy's ruling could spur new interest in the bill. Ironically, Singleton last year upheld the rule mandating that members of the public file substantive comments before being allowed to file administrative appeals. Molloy's first ruling on this case came April 3. On Monday, he issued the nationwide injunction.