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Variations and Timelines in the Federal Appeals Process

Variations and Timelines in the Federal Appeals Process. Robert Mathes, Bjork Lindley Little PC. Categories of Appeals. BLM Resource Management Plans and Forest Service Land and Resource Management Plans. Oil and Gas Leasing. Oil and Gas Development Projects and APD.

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Variations and Timelines in the Federal Appeals Process

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  1. Variations and Timelinesin theFederal Appeals Process Robert Mathes, Bjork Lindley Little PC

  2. Categories of Appeals • BLM Resource Management Plans and Forest Service Land and Resource Management Plans. • Oil and Gas Leasing. • Oil and Gas Development Projects and APD.

  3. Bureau of Land ManagementResource Management Plans • Development of RMP requires EIS. C.F.R. § 1601.0-6. • Notice of Intent. • Scoping meetings. • Draft EIS with plan alternatives. • Final EIS with Proposed Plan. • Record of Decision and Approved RMP.

  4. Bureau of Land ManagementResource Management Plans Administrative Review of RMP • Protest to BLM Director. 43 C.F.R. § 1610.5-2. • Standing. • Protestant must have participated in planning. • Must have interest which may be adversely affected. • May only raise issues submitted during planning process. • Critical to participate in planning process – submit comments on Draft EIS.

  5. Bureau of Land ManagementResource Management Plans Administrative Review – Time Frames • Must file protest within 30 days of EPA Publication of Notice for the Final EIS. 43 C.F.R. § 1610.5-2(a)(1).

  6. Bureau of Land ManagementResource Management Plans Administrative Review – Resolution • BLM Director shall resolve protests promptly. 43 C.F.R. § 1610.5-2(3). • Jack Morrow Hills CAP (2006) – 24 months. • Casper RMP (2007) – 6 months. • Roan Plateau RMP (2007) – 10 months.

  7. Bureau of Land ManagementResource Management Plans Judicial Review Challenge in Federal Court – available in limited situations. • Standing • Ripeness • Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004). • Six year statute of limitations. 28 U.S.C. § 2401.

  8. Forest Service Planning Regulations • National Forest Management Act – 1976. • 1982 Planning Regulations – September 1982. • 2000 Planning Regulations – November 2000. • Interim Rules delay 2000 Planning Regulations – January 2000 – September 2004. • 2005 Planning Regulations – January 2005. • 2005 Planning Regulations struck down – March 2007. • 2008 Planning Regulations – April 2008.

  9. Forest Service Land and Resource Management Plans (1982 Planning Rules) Administrative Review • Appeal filed with next higher line officer within the Forest Service or Department of Agriculture. 36 C.F.R § 217.7. • Chief of the Forest Service → Secretary of Agriculture • Forest Supervisor → Regional Forester

  10. Forest Service Land and Resource Management Plans Administrative Review(1982 Planning Rules) Time Frames • Land and Resource Management Plans – Must file appeal within 90 days of date specified in published legal notice. 36 C.F.R. § 217.8(3). • Non-significant plan amendments – must file appeal within 45 days of date specified in published legal notice. 36 C.F.R. § 217.8(2). • Forest Service Appeal Deciding officer must decide appeal within 160 days of date of appeal. 36 C.F.R. § 217.8(f).

  11. Forest ServiceLand and Resource Management Plans (2008 Planning Regulations) Administrative Review • Objection filed with the supervisor of the official overseeing the planning process. 36 C.F.R. § 219.13(a). • Objector must have participated in the planning process. • No administrative review if decision is made by Department official higher than Chief of the Forest Service. • Project level amendments use appeal procedures under Parts 215 or 251. • Forest Service may use other review procedures in multi-agency processes.

  12. Forest ServiceLand and Resource Management Plans (2008 Planning Regulations) Administrative Review • Objections must be filed within 30 day public review period. 36 C.F.R. § 219.13.(b). • Reviewing Officer will promptly render a written decision on the objection. 36 C.F.R. § 219.13(c).

  13. Type of Challenge Challenge in Federal Court generally not available. Standing Ripeness Ohio Forestry v. Sierra Club, 523 U.S. 726 (1998). Time Frames Six year statute of limitations. 28 U.S.C. § 2401. Forest ServiceLand and Resource Management Plans Judicial Review

  14. BLM/Forest ServiceLand and Resource Management Plans – When Do you Appeal? • Infringe upon valid existing rights. • Restrictions unclear/or vague. • VRM • ROW Avoidance Areas • RFD Scenario • Changes from Draft EIS to Final EIS. • New limitations on development • New ACEC

  15. Bureau of Land ManagementLeasing Decisions Administrative Review • Prior to lease sale opponents must file protest with State Director. 43 C.F.R. § 4.450-2. • State Director must resolve protest before lease issues. • State Director Decision may be appealed to Interior Board of Land Appeals. 43 C.F.R. § 4.410.

  16. Bureau of Land ManagementLeasing Decisions Administrative Review -Time Frame • State Director must issue leases 60 days following payment by successful bidder. 30 U.S.C. § 226(b)(1)(A). • Must file Notice of Appeal in office where decision was made within 30 days of receipt of decision. 43 C.F.R. § 4.411. • Statement of Reasons due 30 days after Notice of Appeal. 43 C.F.R. § 4.412.

  17. Bureau of Land ManagementLeasing Decisions Petition for Stay • May file Petition for Stay with Notice of Appeal. 43 C.F.R. § 4.21(b). • Response to Petition for Stay due 10 days after service. 43 C.F.R. § 4.21(b)(3). • IBLA must issue decision on Petition for Stay within 45 days. 43 C.F.R. § 4.21(b)(4).

  18. Type of Challenge Challenge in Federal Court Standing Ripeness Wyoming Outdoor Council v. Bosworth, 284 F. Supp 2d 81 (2003). Time Frame Six year statute of limitations. 28 U.S.C. § 2401. Bureau of Land ManagementLeasing Decisions – Judicial Review

  19. Forest ServiceLeasing Decisions Administrative Review • Appeal to next higher line officer. 36 C.F.R. § 215.8 • Appeal must be filed 45 days after legal notice of decision is published. 36 C.F.R. § 215.15(a). • Forest Service Official must issue a decision 45 days after close of appeal period. 36 C.F.R. § 215.18(b).

  20. Forest Service – Potential for Dispute • Ambiguity created by 2000 and 2005 Planning Regulations. • 36 C.F.R. § 228.103 states that appeals regarding leasing decisions shall be resolved under 36 C.F.R. Part 217, but 36 C.F.R. Part 217 was abrogated in 2000 and was not replaced in 2005 or 2008 rules. • IBLA has indicated that it may review the Forest Service’s Leasing decisions in situations where no other administrative review is available. Colorado Environmental Coalition, 125 IBLA 210, 220 n.11 (1993).

  21. Type of Challenge Challenge in Federal Court Standing Ripeness Wyoming Outdoor Council v. Bosworth, 284 F. Supp 2d 81 (2003). Time Frame Six year statute of limitations. 28 U.S.C. § 2401. Forest ServiceLeasing Decisions – Judicial Review

  22. Bureau of Land ManagementOil and Gas Exploration Administrative Review • State Director Review. 43 C.F.R. § 3165.3(b). • Appeals from Field Office. • APD’s, PODS, Small development projects.

  23. Bureau of Land ManagementOil and Gas Exploration Administrative Review - Time Frame • Request for State Director Review (SDR) filed within 20 business days of decision. 43 C.F.R. § 3165.3(b). • State Director must issue decision in 10 business days of receipt of Administrative Record or hearing. 43 C.F.R. § 3165.3(d). • State Director review intended to be “quick review.” SUWA, 122 IBLA 283, 287 n.3 (1992).

  24. Bureau of Land ManagementOil and Gas Exploration Administrative Review • Appeal State Director decision to IBLA. 43 C.F.R. § 3165.4(a). • Must file Notice of Appeal in the office where the decision was made within 30 days of receipt of decision. 43 C.F.R. § 4.411. • Statement of Reasons due 30 days after Notice of Appeal. 43 C.F.R. § 4.412. • No time frame for IBLA to resolve appeal.

  25. Bureau of Land ManagementOil and Gas Exploration Petition for Stay • May file Petition for Stay with Notice of Appeal. 43 C.F.R. § 4.21(b). • Response to Petition for Stay due 10 days after service. 43 C.F.R. § 4.21(b)(3). • IBLA must issue decision on Petition for Stay within 45 days of filing. 43 C.F.R. § 4.21(b)(4).

  26. Type of Challenge Challenge in Federal Court Time Frame Six year statute of limitations. 28 U.S.C. § 2401. Bureau of Land ManagementOil and Gas Exploration – Judicial Review

  27. Forest ServiceOil and Gas Exploration Administrative Review • Appeal to next higher line officer. 36 C.F.R. § 215.8. • May Appeal only if Decision Notice or Record of Decision is issued. 36 C.F.R. § 215.11(a). • No Appeal allowed for categorical exclusions or decisions not requiring new NEPA analysis. 36 C.F.R. § 215.4(a); 36 C.F.R. § 215.11. • Regulations prohibiting appeal or opportunity to comment enjoined. Earth Island Institute v. Ruthenbeck, 490 F.3d 687 (9th Cir. 2007).

  28. Forest ServiceOil and Gas Exploration Administrative Review - Time Frame • Appeal must be filed 45 days after legal notice of decision is published. 36 C.F.R. § 215.15(a). • Forest Service official must issue a decision 45 days after close of appeal period. 36 C.F.R. § 215.18(b). • If no appeal filed, project can be implemented 5 business days after close of 45 day appeal period. 36 C.F.R. § 215.9(a). • If appeal filed, project can be implemented 15 business days after final decision of Forest Service Officer. 36 C.F.R. § 215.9(b).

  29. Type of Challenge Challenge in Federal Court. Time Frame Six year statute of limitations. 28 U.S.C. § 2401. Forest ServiceOil and Gas Exploration – Administrative Review

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