[Code of Federal Regulations]
[Title 36, Volume 2]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 36CFR251]
[Page 315-326]
TITLE 36--PARKS, FORESTS, AND PUBLIC PROPERTY
CHAPTER II--FOREST SERVICE, DEPARTMENT OF AGRICULTURE
PART 251--LAND USES--Table of Contents
Subpart C--Appeal of Decisions Relating to Occupancy and Use of National
Forest System Lands
Authority: 7 U.S.C. 5101-5106; 16 U.S.C. 472, 551.
Source: 54 FR 3362, Jan. 23, 1989, unless otherwise noted.
Sec. 251.80 Purpose and scope.
(a) This subpart provides a process by which those who hold or, in
certain instances, those who apply for written authorizations to occupy
and use National Forest System lands, may appeal a written decision by
an authorized Forest Service line officer with regard to issuance,
approval, or administration of the written instrument. The rules in the
subpart establish who may appeal under these rules, the kinds of
decisions that can and cannot be appealed, the responsibilities of
parties to the appeal, and the various procedures and timeframes that
will govern the conduct of appeals under this subpart.
(b) The rules in this subpart seek to offer appellants a fair and
deliberate process for appealing and obtaining administrative review of
decisions regarding written instruments that authorize the occupancy and
use of National Forest System lands.
Sec. 251.81 Definitions and terminology.
For the purposes of this subpart, the following terms are defined:
Appeal. A request to a higher ranking officer for relief from a
written decision filed under this subpart by an applicant for or a
holder of a written instrument issued or approved by a Forest Service
line officer.
Appeal decision. The written decision rendered by the Reviewing
Officer on an appeal for relief under this subpart. The use of this term
is limited to the final decision of a Reviewing Officer and does not
refer to a stay decision or to any other determinations or procedural
orders made on the conduct of an appeal (Sec. 251.99).
Appeal record. The documents submitted to the Reviewing Officer by
an appellant, intervenor, or Deciding Officer (Sec. 251.98).
Appellant. An eligible applicant for or holder of a written
instrument issued for the occupancy and use of National Forest System
land (or their authorized agent or representative) who files an appeal
pursuant to the provisions of this subpart (Sec. 251.86).
Deciding officer. The Forest Service line officer who makes a
decision related to issuance, approval, or administration of an
authorization to occupancy and use National Forest System lands that is
appealed under this subpart.
Decisions regarding a written instrument or authorization to occupy
and use National Forest System lands. A broad, all inclusive phrase used
throughout this subpart to connote the full range of actions and
decisions a forest officer takes to issue written instruments, or to
manage authorized uses of National Forest System lands, including, but
not limited to, enforcement of terms and conditions, and suspension,
cancellation, and/or termination of an authorization.
Forest Service line officer. The Chief of the Forest Service or a
Forest Service official who serves in a direct line of command from the
Chief and who has the delegated authority to make and execute decisions
under this subpart. Specifically, for the purposes of this subpart, a
Forest Service employee who holds one of the following offices and
titles: District Ranger, Forest Supervisor, Deputy Forest Supervisor,
Regional Forester, Deputy Regional Forester, Deputy Chief, Associate
Deputy Chief, Associate Chief, or the Chief of the Forest Service.
Intervenor. An individual who, or organization that, is an applicant
for or holder of the written instrument, or a
[[Page 316]]
similar instrument, issued by the Forest Service that is the subject of
an appeal, and who has an interest that could be affected by an appeal,
and who has made a timely request to intervene in that appeal, and who
has been granted intervenor status by the Reviewing Officer
(Sec. 251.96).
Issuance of a written instrument of authorization. Applies both to
decisions to grant and to deny a written instrument or authorization.
Notice of appeal. The document prepared and filed by an appellant to
dispute a decision subject to review under this subpart (Sec. 251.90).
Oral presentation. An informal meeting (in person or by telephone)
at which an appellant, intervenor, and/or Deciding Officer may present
information related to an appeal to the Reviewing Officer (Sec. 251.97).
Parties to an appeal. The appellant(s), intervenor(s), and the
Deciding Officer.
Responsive statement. A written document prepared by a Deciding
Officer that responds to the notice of appeal record by an appellant
(Sec. 251.94).
Reviewing Officer. The officer at the next administrative level
above that of the Deciding Officer who conducts appeal proceedings,
makes all necessary rulings regarding conduct of an appeal, and issues
the appeal decision.
Written instrument or authorization. Any of those kinds of documents
listed in Sec. 251.82 of this subpart issued or approved by the Forest
Service authorizing an individual, organization or other entity to
occupy and use National Forest System lands and resources.
[54 FR 3362, Jan. 23, 1989; 54 FR 13807, Apr. 5, 1989]
Sec. 251.82 Appealable decisions.
(a) The rules of this subpart govern appeal of written decisions of
Forest Service line officers related to issuance, denial, or
administration of the following written instruments to occupy and use
National Forest System lands, including but not limited to:
(1) Permits for ingress and egress to intermingled and adjacent
private lands across National Forest System lands, 36 CFR 212.8 and
212.10.
(2) Permits and occupancy agreements on National Grasslands and
other lands administered under the provisions of title III of Bankhead-
Jones Farm Tenant Act issued under 36 CFR 213.3.
(3) Grazing and livestock use permits issued under 36 CFR part 222,
subpart A.
(4) Mining plans of operation under 36 CFR part 228, subpart A.
(5) Mining operating plans for the Sawtooth National Recreation Area
issued under 36 CFR 292.17 and 292.18.
(6) Permits and agreements regarding mineral materials (petrified
wood and common varieties of sand, gravel, stone, pumice, pumicite,
cinder, clay and other similar materials) under 36 CFR 228, subpart C.
(7) Permits authorizing exercise of mineral rights reserved in
conveyance to the United States issued under 36 CFR part 251, subpart A.
(8) Special use authorizations issued under 36 CFR part 251, subpart
B, except, as provided in Sec. 251.60(g), for suspension or termination
of easements issued pursuant to 36 CFR 251.53(e) and (e)(1).
(9) Permits for uses in Wilderness Areas issued under 36 CFR 293.3.
(10) Permits to excavate and/or remove archaeological resources
issued under the Archaeological Resources Protection Act 1979 and 36 CFR
part 296.
(11) Approval/non-approval of Surface Use Plans of Operations
related to the authorized use and occupancy of a particular site or
area.
(12) Decisions related to the standards for the use, subdivision,
and development of privately owned property within the boundaries of the
Sawtooth National Recreation Area pursuant to 36 CFR part 292, subpart
C.
(b) Written decisions on any of the matters of the type listed in
paragraph (a) of this section issued by a Forest Service staff officer
with delegated authority to act for a Forest Service line officer are
considered to be decisions of the line officer.
[54 FR 3362, Jan. 23, 1989, as amended at 54 FR 34510, Aug. 21, 1989]
[[Page 317]]
Sec. 251.83 Decisions not appealable.
The following decisions are not appealable under this subpart:
(a) Decisions appealable to the Agriculture Board of Contract
Appeals, USDA, under 7 CFR part 24.
(b) Decisions involving Freedom of Information Act denials under 7
CFR part 1 or Privacy Act determinations under 7 CFR 1.118.
(c) Decisions for which the jurisdiction of another Government
agency, the Comptroller General, or a court to hear and settle disputes
supersedes that of the Department of Agriculture.
(d) Recommendations of Forest Service line officers to higher
ranking Forest Service line officers or to other entities having final
authority to implement the recommendation in question.
(e) Decisions appealable under separate administrative proceedings,
including, but not limited to, those under 36 CFR 223.117
(Administration of Cooperative for Federal Sustained Yield Units); 7 CFR
21.104 (Eligibility for Recreation Payment of Amount); and 4 CFR part 21
(Bid Protests).
(f) Decisions pursuant to Office of Management and Budget Circular
A-76, Performance of Commercial Activities.
(g) Decisions concerning contracts under the Federal Property and
Administrative Services Act of 1949, as amended.
(h) Decisions covered by the Contract Disputes Act.
(i) Decisions involving Agency personnel matters.
(j) Decisions where relief sought is reformation of a contract or
award of monetary damages.
(k) Decisions made during the preliminary planning process pursuant
to 36 CFR part 219 and 40 CFR parts 1500-1508 that precede decisions to
implement the proposed action.
(l) Decisions related to National Forest land and resource
management plans and projects only reviewable under 36 CFR part 217.
(m) Decisions related to rehabilitation of National Forest System
lands and recovery of forest resources resulting from natural disasters
or other natural phenomena such as wildfires, severe wind, earthquakes,
and flooding when the Regional Forester or, in situations of national
significance, the Chief of the Forest Service determines and gives
notice that good cause exists to exempt such decisions from appeal under
this subpart.
(n) Decisions imposing penalties for archaeological violations under
36 CFR 296.15 or for violations of prohibitions and orders under 36 CFR
part 261.
(o) Reaffirmation of prior decisions.
[54 FR 3362, Jan. 23, 1989, as amended at 54 FR 34510, Aug. 21, 1989]
Sec. 251.84 Obtaining notice.
(a) A Deciding Officer shall promptly give written notice of
decisions subject to appeal under this subpart to applicants and holders
defined in Sec. 251.86 of this subpart and to any holder of like
instruments who has made a written request to be notified of a specific
decision. The notice shall include a statement of the Deciding Officer's
willingness to meet with applicants or holders to hear and discuss any
concerns or issues related to the decision (Sec. 251.93). The notice
shall also specify the name of the officer to whom an appeal of the
decision may be filed, the address, and the deadline for filing an
appeal.
(b) In States with Department of Agriculture certified mediation
programs, a Deciding Officer shall also give written notice of the
opportunity for the affected term grazing permit holder to request
mediation of decisions to suspend or cancel term grazing permits, in
whole or in part, pursuant to 36 CFR 222.4(a)(2)(i), (ii), (iv), (v) and
(a)(3) through (a)(6). Such notice must inform the permit holder that,
if mediation is desired, the permit holder must request mediation as
part of the filing of an appeal.
[54 FR 3362, Jan. 23, 1989, as amended at 64 FR 37846, July 14, 1999]
Sec. 251.85 Election of appeal process.
(a) No decision can be appealed by the same person under both this
subpart and part 217 of this chapter.
(b) Should a decision be reviewable under this subpart as well as
part 217 of this chapter, a party who qualifies to bring an appeal under
this subpart can elect which process to use for obtaining review of a
decision, but in so doing, the appellant thereby forfeits all right to
appeal the same decision under the
[[Page 318]]
other review process. However, a holder who waives the right to appeal
under the provisions of 36 CFR part 217 may intervene pursuant to 36 CFR
217.6(b).
Sec. 251.86 Parties.
Only the following may participate in the appeals process provided
under this subpart:
(a) An applicant who, in response to a prospectus or written
solicitation or other notice by the Forest Service, files a formal
written request for a written authorization to occupy and use National
Forest System land covered under Sec. 251.82 of this subpart and
(1) Was denied the authorization, or
(2) Was offered an authorization subject to terms and conditions
that the applicant finds unreasonable or impracticable.
(b) The signatory(ies) or holder(s) of a written authorization to
occupy and use National Forest System land covered under Sec. 251.82 of
this subpart who seeks relief from a written decision related to that
authorization.
(c) An intervenor as defined in Sec. 251.81 of this subpart.
(d) The Deciding Officer who made the decision being appealed under
this subpart.
Sec. 251.87 Levels of appeal.
(a) Decisions made by the Chief. If the Chief of the Forest Service
is the Deciding Officer, the appeal is to the Secretary of Agriculture.
Review by the Secretary is discretionary. Within 15 calendar days of
receipt of a timely notice of appeal, the Secretary shall determine
whether or not to review the decision. If the Secretary has not decided
to review the Chief's decision by the expiration of the 15-day period,
the requester(s) shall be notified by the Secretary's office that the
Chief's decision is the final administrative decision of the Department
of Agriculture. When the Secretary elects to review an initial decision
made by the Chief, the Secretary shall conduct the review in accordance
with the first level appeal procedures outlined in this rule.
(b) Decisions made By Forest Supervisors and Regional Foresters.
Only one level of appeal is available on written decisions by Forest
Service line officers below the level of the Chief and above the level
of the District Ranger. The levels of available appeal are as follows:
(1) If the decision is made by a Forest Supervisor, the appeal is
filed with the Regional Forester;
(2) If the decision is made by a Regional Forester, the appeal is
filed with the Chief of the Forest Service.
(c) Decisions made by the District Ranger. Two levels of appeal are
available for written decisions by District Rangers.
(1) The appeal for initial review is filed with the Forest
Supervisor.
(2) The appeal for a second level of review is filed with the
Regional Forester within 15 days of the first level appeal decision.
Upon receiving such a request, the Regional Forester shall promptly
request the first level file from the Forest Supervisor. The review
shall be conducted on the existing record and no additional information
shall be added to the file.
(d) Discretionary review of dismissal decisions. Dismissal decisions
rendered by Forest Service line officers pursuant to this part
(Sec. 251.92) are subject to only one level of discretionary review
(Sec. 251.100) as follows:
(1) If the Reviewing Officer was the Forest Supervisor, the Regional
Forester has discretion to review.
(2) If the Reviewing Officer was the Regional Forester, the Chief
has discretion to review.
(3) If the Reviewing Officer was the Chief, the Secretary of
Agriculture has discretion to review.
(e) Discretionary review of appeal decisions. Appeal decisions
rendered by Regional Foresters and the Chief pursuant to this part are
subject to only one level of discretionary review as follows:
(1) If the Reviewing Officer is the Regional Forester, the Chief of
the Forest Service has discretion to review.
(2) If the Reviewing Officer is Chief, the Secretary of Agriculture
has discretion to review.
(3) A Regional Forester's decision on a second-level appeal
constitutes the final administrative determination of the Department of
Agriculture on the
[[Page 319]]
appeal and is not subject to further review by a higher level officer
under this subpart.
[54 FR 3362, Jan. 23, 1989, as amended at 54 FR 34510, Aug. 21, 1989]
Sec. 251.88 Filing procedures.
(a) Filing procedures. In order to appeal a decision under this
subpart, an appellant must:
(1) File a notice of appeal in accordance with Sec. 251.90 of this
subpart with the next higher line officer as identified in Sec. 251.87.
(2) File the notice of appeal within 45 days of the date on the
notice of the written decision being appealed (Sec. 251.84); and
(3) Simultaneously send a copy of the notice of appeal to the
Deciding Officer.
(b) Evidence of timely filing. It is the responsibility of those
filing an appeal to file the notice of appeal by the end of the filing
period. In the event of questions, legible postmarks will be considered
evidence of timely filing. Where postmarks are illegible, the Reviewing
Officer shall rule on the timeliness of the notice of appeal. Untimely
submissions are subject to dismissal as provided for in
Sec. 251.92(a)(2).
(c) Computation of time period for filing. (1) The time period for
filing a notice of appeal of a decision under this subpart begins on the
first day after the Deciding Officer's written notice of the decision.
All other time periods applicable to this subpart also will be computed
to begin on the first day following an event or action related to the
appeal.
(2) Time periods applicable to this subpart are computed using
calendar days. Saturdays, Sundays, or Federal holidays are included in
computing the time allowed for filing an appeal; however, when the
filing period would expire on a Saturday, Sunday, or Federal holiday the
filing time is extended to the end of the next Federal working day.
Sec. 251.89 Time extensions.
(a) Filing of notice of appeal. Time for filing a notice of appeal
is not extendable.
(b) All other time periods. Appellants, Intervenors, Deciding
Officers, and Reviewing Officers shall meet the time periods specified
in the rules of this subpart, unless a Reviewing Officer has extended
the time as provided in this paragraph. Except as noted in paragraph (a)
of this section and as prohibited at the discretionary review level
(Sec. 251.100), the Reviewing Officer may extend all other time periods
under this subpart.
(1) For appeals of initial written decisions by the Chief, a
Regional Forester, or a Forest Supervisor, a Reviewing Officer, where
good cause exists, may grant a written request for extension of time to
file a responsive statement or replies thereto. The Reviewing Officer
shall rule on requests for extensions within 10 days of receipt of the
request and shall provide written notice of the extension ruling to all
parties to the appeal.
(2) Except for discretionary reviews of appeal decisions as provided
in Sec. 251.100 of this subpart, a Reviewing Officer may extend the time
period for issuance of the appeal decision, including for purposes of
allowing additional time for the Deciding Officer to resolve disputed
issues, as provided in Sec. 251.93 of this subpart.
[54 FR 3362, Jan. 23, 1989, as amended at 54 FR 34510, Aug. 21, 1989]
Sec. 251.90 Content of notice of appeal.
(a) It is the responsibility of an appellant to provide a Reviewing
Officer sufficient narrative evidence and argument to show why a
decision by a lower level officer should be reversed or changed.
(b) An appellant must include the following information in a notice
of appeal:
(1) The appellant's name, mailing address, and daytime telephone
number;
(2) The title or type of written instrument involved, the date of
application for or issuance of the written instrument, and the name of
the responsible Forest Service Officer;
(3) A brief description and the date of the written decision being
appealed;
(4) A statement of how the appellant is adversely affected by the
decision being appealed;
(5) A statement of the facts of the dispute and the issue(s) raised
by the appeal;
[[Page 320]]
(6) Specific references to any law, regulation, or policy that the
appellant believes to be violated and the reason for such an allegation.
(7) A statement as to whether and how the appellant has tried to
resolve the issue(s) being appealed with the Deciding Officer, the date
of any discussion, and the outcome of that meeting or contact; and
(8) A statement of the relief the appellant seeks.
(c) An appellant may also include one or more of the following in a
notice of appeal: a request for oral presentation (Sec. 251.97); a
request for stay of implementation of the decision pending decision on
the appeal (Sec. 251.91); or, in those States with a Department of
Agriculture certified mediation program, a request for mediation of
grazing permit cancellation or suspensions pursuant to Sec. 251.103.
[54 FR 3362, Jan. 23, 1989; 54 FR 13807, Apr. 5, 1989, as amended at 54
FR 34510, Aug. 21, 1989; 64 FR 37846, July 14, 1999]
Sec. 251.91 Stays.
(a) A decision may be implemented during the appeal process, unless
the Reviewing Officer grants a stay or unless a term grazing permit
holder appeals a decision and simultaneously requests mediation pursuant
to Sec. 251.103. In the case of mediation requests, a stay is granted
automatically upon receipt of the notice of appeal for the duration of
the mediation period as provided in Sec. 251.103.
(b) An appellant or intervenor may request a stay of a decision at
any time while an appeal is pending, if the harmful effects alleged
pursuant to paragraph (c)(3) of this section would occur during pendency
of the appeal. The Reviewing Officer shall not accept any request to
stay implementation of a decision that is not scheduled to begin during
pendency of the appeal.
(c) To request a stay of decision, an appellant or intervenor must--
(1) File a written request with the Reviewing Officer;
(2) Simultaneously send a copy of the stay request to any other
appellant(s), to intervenor(s), and to the Deciding Officer.
(3) Provide a written justification of the need for a stay, which at
a minimum includes the following:
(i) A description of the specific project(s), activity(ies), or
action(s) to be stopped.
(ii) Specific reasons why the stay should be granted in sufficient
detail to permit the Reviewing Officer to evaluate and rule upon the
stay request, including at a minimum:
(A) The specific adverse effect(s) upon the requester;
(B) Harmful site-specific impacts or effects on resources in the
area affected by the activity(ies) to be stopped, and
(C) How the cited effects and impacts would prevent a meaningful
decision on the merits.
(d) A Deciding Officer and other parties to an appeal may provide
the Reviewing Officer with a written response to a stay request. A copy
of any response must be sent to all parties to the appeal.
(e) Timeframe. The Reviewing Officer must rule on a stay request no
later than 10 calendar days from receipt.
(f) Criteria to consider. In deciding a stay request, a Reviewing
Officer shall consider:
(1) Information provided by the requester pursuant to paragraph (c)
of this section including the validity of any claim of adverse effect on
the requester;
(2) The effect that granting a stay would have on preserving a
meaningful appeal on the merits;
(3) Any information provided by the Deciding Officer or other party
to the appeal in response to the stay request; and
(4) Any other factors the Reviewing Officer considers relevant to
the decision.
(g) Notice of decision on a stay request. A Reviewing Officer must
issue a written decision on a stay request.
(1) If a stay is granted, the stay shall specify the specific
activities to be stopped, duration of the stay, and reasons for granting
the stay.
(2) If a stay is denied in whole or in part, the decision shall
specify the reasons for the denial.
[[Page 321]]
(3) A copy of a decision on a stay request shall be sent to all
parties to the appeal.
(h) Duration. A stay shall remain in effect for the 15-day period
for determining discretionary review (Sec. 251.100), unless changed by
the Reviewing Officer in accordance with paragraph (i) of this section.
(i) Change in a stay. A Reviewing Officer may change a stay decision
in accordance with any terms established in the stay decision itself or
at any time during pendency of an appeal that circumstances support a
change of stay. In making any changes to a stay decision, the Reviewing
Officer must issue a written notice to all parties to the appeal
explaining the reason for making the changes and setting forth any terms
or conditions that apply to the change.
(j) Petitions to change a stay. An appellant or intervenor may
petition a Reviewing Officer to change or lift a stay at any time during
the pendency of an appeal. Such petitions must be in writing, must
explain how circumstances have changed since the stay was imposed, and
must state why the change in the stay is being requested. The petitioner
must send a copy of the petition to all parties to the appeal.
(k) Appeal of stay decision or changes in stay. A Reviewing
Officer's decision to grant, deny, lift, or otherwise change a stay is
not subject to further appeal and review, except when the first-level
Reviewing Officer was the Forest Supervisor. In this instance, the
Regional Forester has discretion to review.
[54 FR 3362, Jan. 23, 1989, as amended at 54 FR 34510, Aug. 21, 1989; 64
FR 37846, July 14, 1999]
Sec. 251.92 Dismissal.
(a) The Reviewing Officer shall dismiss an appeal and close the
record without a decision on the merits when:
(1) The appellant is not eligible to appeal a decision under this
subpart.
(2) Appellant's notice of appeal is not filed within the required
time period, or the notice of appeal fails to meet the minimum
requirements of Sec. 251.90 of this subpart to such an extent that the
Reviewing Officer lacks adequate information on which to base a
decision.
(3) In cases where there is only one appellant, the appellant
withdraws the appeal.
(4) The requested relief cannot be granted under existing law, fact,
or regulation.
(5) The decision is excluded from appeal under this subpart
(Sec. 251.83).
(6) The Deciding Officer has withdrawn the decision under appeal.
(7) A request for review of the same decision has been filed by the
same person under part 217 of this chapter.
(8) A mediated agreement is reached (Sec. 251.103).
(b) The Reviewing Officer shall give written notice of dismissal
that includes an explanation of why the appeal is dismissed.
(c) A Reviewing Officer's dismissal decision is subject to
discretionary review at the next administrative level as provided for in
Sec. 251.87(d), except when a dismissal decision results from withdrawal
of an appeal by an appellant, withdrawal of the initial decision by the
Deciding Officer, or a mediated resolution of the dispute.
[54 FR 3362, Jan. 23, 1989, as amended at 55 FR 7896, Mar. 6, 1990; 64
FR 37846, July 14, 1999]
Sec. 251.93 Resolution of issues.
(a) Authorized Forest Service officers shall, to the extent
practicable and consistent with the public interest, consult and meet in
person, or by phone, with holders of written instruments prior to
issuing written decisions related to administration of a written
authorization. The purpose of such meetings is to discuss any issues or
concerns related to the authorized use and to reach a common
understanding and agreement where possible prior to issuance of a
written decision.
(b) When decisions are appealed, the Deciding Officer may discuss
the appeal with the appellant(s) and intervenor(s) together or
separately to narrow issues, agree on facts, and explore opportunities
to resolve the issues by means other than review and decision on the
appeal, including mediation pursuant to Sec. 251.103. At the request of
the Deciding Officer, the Reviewing Officer may extend the time period
to allow
[[Page 322]]
for meaningful negotiations, except for appeals under review at the
discretionary level. In the event of mediation of a grazing dispute
under Sec. 251.103, the Reviewing Officer may extend the time for
mediation only as provided in Sec. 251.103.
(c) The Deciding Officer has the authority to withdraw a decision,
in whole or in part, during the appeal. Where a Deciding Officer decides
to withdraw a decision, all parties to the appeal and the Reviewing
Officer must receive written notice.
[54 FR 3362, Jan. 23, 1989, as amended at 54 FR 34510, Aug. 21, 1989; 64
FR 37846, July 14, 1999]
Sec. 251.94 Responsive statement.
(a) Content. A responsive statement contains the Deciding Officer's
response to the specific facts or issues of law or regulation and the
requested relief set forth by the appellant in the notice of appeal.
(b) Timeframe. Unless the Reviewing Officer has granted an extension
or dismissed the appeal, or unless mediation has been requested under
this subpart, the Deciding Officer shall prepare a responsive statement
and send it to the Reviewing Officer and all parties to the appeal
within 30 days of receipt of the notice of appeal. Where mediation
occurs but fails to resolve the issues, the Deciding Officer shall
prepare a responsive statement and send it to the Reviewing Officer and
all parties to the appeal within 30 days of the reinstatement of the
appeal timeframes (Sec. 251.103(c)).
(c) Replies. Within 20 days of the postmarked date of the responsive
statement, the appellant(s) and any intervenor(s) may file a written
reply to the responsive statement with the Reviewing Officer. Appellants
and intervenors must send a copy of any reply to a responsive statement
to all parties to the appeal, including the Deciding Officer.
[54 FR 3362, Jan. 23, 1989, as amended at 64 FR 37846, July 14, 1999]
Sec. 251.95 Authority of reviewing officer.
(a) Discretion to establish procedures. A Reviewing Officer may
issue such procedural orders as deemed appropriate to ensure orderly,
expeditious, and fair conduct of an appeal providing they are consistent
with other provisions of this part.
(1) In appeals involving intervenors, the Reviewing Officer may
prescribe special procedures to conduct the appeal.
(2) All parties to an appeal shall receive notice of any orders or
decisions on the conduct of the appeal.
(3) Orders and determinations governing the conduct of an appeal are
not subject to appeal and further review.
(b) Consolidation of appeals. A Reviewing Officer may consolidate
multiple appeals of the same decision, or of similar decisions involving
common issues of fact or law and issue one appeal decision. Similarly, a
Reviewing Officer may issue one decision in cases involving separate
reviews filed pursuant to 36 CFR part 217 and under this part when the
decision at issue is the same decision. In such case, the Reviewing
Officer shall give notice to all parties to multiple appeals.
(1) A decision to consolidate appeals is not subject to appeal and
further review.
(2) At the discretion of the Reviewing Officer, the Deciding Officer
may prepare one responsive statement to multiple appeals.
(c) Requests for additional information. Except in discretionary
review conducted pursuant to Sec. 251.100 and second level appeals of
decisions made by the District Ranger pursuant to Sec. 251.87(c) of this
subpart, the Reviewing Officer may ask any party to an appeal for
additional information as deemed necessary to decide the appeal. Such
requests will be limited to obtaining and evaluating information needed
to clarify issues raised. The Reviewing Officer shall notify all parties
of the request for information, provide it to all parties, give
opportunity to comment, and extend time periods if necessary to allow
for submission of the information.
[54 FR 3362, Jan. 23, 1989, as amended at 54 FR 34510, Aug. 21, 1989; 55
FR 7896, Mar. 6, 1990]
Sec. 251.96 Intervention.
(a) A request to intervene in an appeal may be made at any time
prior to the closing of the appeal record
[[Page 323]]
(Sec. 251.98) at the first level of appeal (Sec. 251.87). Requests to
intervene in an appeal at the discretionary review level
(Sec. 251.87(d)) shall be denied.
(b) To request intervention in a first-level appeal under this
subpart, a party, at a minimum, must:
(1) Submit a written petition to intervene to the Reviewing Officer,
(2) Be, as defined at Sec. 251.81 of this subpart, an applicant for
or holder of a written instrument issued by the Forest Service that is
the subject of or affected by the appeal, and have an interest that
could be directly affected by a decision on the appeal, and
(3) Show, in the request for intervention, how the decision on the
appeal would directly affect petitioner's interests.
(c) The Reviewing Officer determines whether a party requesting
intervention meets the requirements of paragraph (a) of this section. In
granting intervention, the Reviewing Officer must give notice to all
other parties to the appeal.
(d) A granting or denial of intervention is not subject to appeal to
a higher level.
(e) Appellants and intervenors must concurrently furnish copies of
all submissions to each other as well as the Deciding Officer. Failure
to provide each other copies may result in removal of a submission from
the appeal record. At the discretion of the Reviewing Officer,
appellants may be given additional time to review and comment on initial
submissions by intervenors.
(f) An intervenor cannot continue an appeal if the appellant
withdraws the appeal.
[54 FR 3362, Jan. 23, 1989, as amended at 54 FR 34510, Aug. 21, 1989]
Sec. 251.97 Oral presentation.
(a) Purpose. An oral presentation provides an additional opportunity
for an appellant, and other parties to an appeal, to present their
viewpoints to the Reviewing Officer. The purpose is to restate,
emphasize, and/or clarify information related to an appeal. Oral
presentations are to be conducted in an informal manner and shall not be
subject to formal rules of procedure such as those applicable to
judicial proceedings.
(b) Requests. Only an appellant may request and be granted an oral
presentation. An appellant may request an oral presentation at any time
prior to closing of the appeal record (Sec. 251.98). A Reviewing Officer
shall automatically grant an oral presentation if the appellant
requested the presentation as part of the notice of appeal.
(c) Participation. At the discretion of the Reviewing Officer, oral
presentations may be open to public attendance, but participation is
limited to parties to the appeal. The Reviewing Officer shall advise all
parties to the appeal, including the Deciding Officer, of the place,
time, and date of the oral presentation, and how the oral presentation
will be conducted. All parties to an appeal shall be invited to
participate. Appellants and intervenors must bear any expense involved
in making an oral presentation in person or by telephone.
(d) Limitation. Oral presentations shall be held only at the first
level of appeal (Sec. 251.87(b)).
Sec. 251.98 Appeal record.
The following rules apply only to the appeal record for appeals at
the first level (Sec. 251.87 (a), (b)):
(a) It is the responsibility of the Reviewing Officer to maintain in
one location the documents related to the appeal.
(b) The record consists of the documents filed with the Reviewing
Officer including, but not limited to, the notice of appeal, responsive
statement, replies to submissions by various parties to the appeal,
orders and determinations made on the conduct of the appeal, and
correspondence.
(c) The Reviewing Officer has discretion to remove from the record
documents that were not sent to all parties to an appeal.
(d) Unless the Reviewing Officer has ordered otherwise, the appeal
record closes with the expiration of the time period for filing of the
reply(ies) to the responsive statement, or at the conclusion of an oral
presentation, if there is one. The Reviewing Officer shall notify all
parties to an appeal of the closure of the record.
(e) The appeal record is open to public inspection.
[[Page 324]]
(f) In appeals involving initial decisions of the Chief
(Sec. 251.87(a)), the establishment of an administrative record as
defined in paragrapn (a) of this section shall not begin unless the
Secretary elects to review the appeal. Except for the initial notice of
appeal, any filings made previous to the Secretary's election to review
will not be accepted.
[54 FR 3362, Jan. 23, 1989, as amended at 54 FR 34510, Aug. 21, 1989]
Sec. 251.99 Appeal decision.
(a) The Reviewing Officer shall base the appeal decision on the
appeal record and applicable laws, regulations, orders, policies, and
procedures.
(b) The Reviewing Officer shall affirm or reverse the original
decision whole or in part and include the reason(s) for the decision.
The Reviewing Officer may also include in the appeal decision
instructions for further action by the Deciding Officer.
(c) At the first level of appeal, the Reviewing Officer shall make
and issue an appeal decision within 30 days of the date the record is
closed.
(d) At the second level of appeal provided in Sec. 251.87(c), the
Reviewing Officer shall make and issue an appeal decision within 30 days
of the date the record is received from the first level Reviewing
Officer.
(e) The Reviewing Officer shall send a copy of all appeal decisions
to all participants.
(f) Unless the next higher officer exercises the discretion to
review an appeal decision as provided in Secs. 251.87(e) and 251.100 of
this subpart, the appeal decision is the final administrative decision
of the Department of Agriculture and is not subject to further review
under this subpart or part 217 of this chapter.
[54 FR 3362, Jan. 23, 1989, as amended at 54 FR 34510, Aug. 21, 1989]
Sec. 251.100 Discretionary review.
(a) Petitions or requests for discretionary review shall not, in and
of themselves, give rise to a decision to exercise discretionary review.
In electing to exercise discretion, a Reviewing Officer should consider,
but is not limited to, such factors as controversy surrounding the
decision, the potential for litigation, and whether the appeal decision
is precedential in nature or establishes new policy.
(b) As provided for in Secs. 251.87(d) and (e), 251.91(k), and
251.92, stay decisions rendered by a Forest Supervisor, certain
dismissal decisions rendered by Forest Service line officers, and first-
level appeal decisions rendered by Regional Foresters and the Chief
(Sec. 251.99), are subject to discretionary review at the next highest
administrative level. Within one day following the date of a decision
subject to such discretionary review, the Reviewing Officer shall
forward a copy of the decision and the initial decision upon which the
appeal is predicated to the next higher officer.
(c) The next higher level officer shall have 15 calendar days from
date of receipt to decide whether or not to review an appeal decision
and may call for or use the appeal record in deciding whether or not to
review the appeal decision. If the record is requested, the 15-day
period is suspended at that point. The lower level Reviewing Officer
shall forward it within 5 days of the request. Upon receipt, the higher
level officer shall have 15 days to decide whether or not to review the
lower level decision. If that officer takes no action by the expiration
of the discretionary review period, appellants shall be notified by the
discretionary level officer that the appeal decision of the Reviewing
Officer stands as the final administrative review decision of the
Department of Agriculture.
(d) When an official exercises the discretion in Sec. 251.87(d) or
Sec. 251.87(e) of this subpart to review a dismissal or appeal decision,
the discretionary review shall be made on the existing appeal record and
the lower level Reviewing Officer's appeal decision. The record shall
not be reopened to accept additional submissions from any source,
including the Reviewing Officer whose appeal decision is being reviewed.
(e) When an official exercises discretion to review an appeal
decision, a Reviewing Officer may extend a stay, in whole or in part,
during pendency of the discretionary review.
(f) The second level Reviewing Officer shall conclude the review
within 30 days of the date of notice issued to an
[[Page 325]]
appellant that the lower level decision will be reviewed.
(g) If a discretionary review decision is not issued by the end of
the 30-day review period, appellants and intervenors shall be deemed to
have exhausted their administrative remedies for purposes of judicial
review. In such case, appellants, intervenors, and the lower level
Reviewing Officer shall be notified by the discretionary level officer.
(h) The Reviewing Officer shall provide a copy of the decision to
all appellants, intervenors, the Deciding Officer, and the lower level
Reviewing Officer.
[54 FR 3362, Jan. 23, 1989, as amended at 54 FR 34510, Aug. 21, 1989; 55
FR 7896, Mar. 6, 1990]
Sec. 251.101 Policy in event of judicial proceedings.
It is the position of the Department of Agriculture that any filing
for Federal judicial review of and relief from a decision appealable
under this subpart is premature and inappropriate, unless the appellant
has first sought to resolve the dispute by invoking and exhausting the
procedures of this subpart. This position may be waived only upon a
written finding by the Chief.
Sec. 251.102 Applicability and effective date.
(a) Except where applicants or holders elect the decision review
procedures of part 217 of this chapter, appealable decisions arising
from the issuance, approval, and administration of written instruments
authorizing occupancy and use of National Forest System lands made on or
after February 22, 1989, shall be subject to the procedures of this
part.
(b) Decisions made before February 22, 1989, arising from the
issuance, approval, and administration of written instruments
authorizing occupancy and use of National Forest System lands shall be
subject to appeal under the provisions of 36 CFR 211.18.
[54 FR 6892, Feb. 15, 1989]
Sec. 251.103 Mediation of term grazing permit disputes.
(a) Decisions subject to mediation. In those States with Department
of Agriculture certified mediation programs, any holder of a term
grazing permit may request mediation, if a Deciding Officer issues a
decision to suspend or cancel a term grazing permit, in whole or in
part, as authorized by 36 CFR 222.4 (a)(2)(i), (ii), (iv), (v), and
(a)(3) through (a)(6).
(b) Parties. Notwithstanding the provisions addressing parties to an
appeal at Sec. 251.86, only the following may participate in mediation
of term grazing permit disputes under this section:
(1) A mediator authorized to mediate under a Department of
Agriculture State certified mediation program:
(2) The Deciding Officer who made the decision being mediated, or
designee;
(3) The holder whose term grazing permit is the subject of the
Deciding Officer's decision and who has requested mediation in the
notice of appeal;
(4) The holder's creditors, if applicable; and
(5) Legal counsel, if applicable. The Forest Service will have legal
counsel participate only if the permittee choose to have legal counsel.
(c) Timeframe. When an appellant simultaneously requests mediation
at the time an appeal is filed (Sec. 251.84), the Reviewing Officer
shall immediately notify, by certified mail, all parties to the appeal
that, in order to allow for mediation, the appeal is suspended for 45
calendar days from the date of the Reviewing Officer's notice. If
agreement has not been reached at the end of 45 calendar days, but it
appears to the Deciding Officer that a mediated agreement may soon be
reached, the Reviewing Officer may notify, by certified mail, all
parties to the appeal that the period for mediation is extended for a
period of up to 15 calendar days from the end of the 45-day appeal
suspension period. If a mediated agreement cannot be reached under the
specified timeframes, the Reviewing Officer shall immediately notify, by
certified mail, all parties to the appeal that mediation was
unsuccessful, that the stay granted during mediation is lifted, and that
the timeframes and procedures applicable to an appeal (Sec. 251.89) are
reinstated as of the date of such notice.
(d) Confidentiality. Mediation sessions shall be confidential;
moreover, dispute
[[Page 326]]
resolution communications, as defined in 5 U.S.C. 571(5), shall be
confidential. However, the final agreement signed by the Forest Service
official and the permit holder is subject to public disclosure.
(e) Records. Notes taken or factual material received during
mediation sessions are not to be entered as part of the appeal record.
(f) Cost. The United States Government shall cover only incurred
expenses of its own employees in mediation sessions.
(g) Exparte communication. Except to request a time extension or
communicate the results of mediation pursuant to paragraph (d) of this
section, the Deciding Officer, or designee, shall not discuss mediation
and/or appeal matters with the Reviewing Officer.
[64 FR 37846, July 14, 1999