Last week a federal district court in California issued a nationwide injunction that may have significant impacts on exploration activities within National Forests. For years activities that were categorically excluded from review under the National Environmental Policy Act (NEPA) were also exempt from U.S. Forest Service regulations concerning public notice, comment, and administrative appeals (36 C.F.R. Part 215). This exemption covered a wide variety of activities including mineral exploration that was categorically excluded from NEPA review. Last week, though, in Sequoia ForestKeeper v. Tidwell, the court held this exemption from public notice, comment, and administrative appeals requirements violated Section 322(a) of the Department of the Interior and Related Agencies Appropriation Act for Fiscal Year 1993, Pub. L. No. 102-381 (aka Forest Service Decisionmaking and Appeals Reform Act).
As a result of this decision, activities within National Forests that were categorically excluded from NEPA review will now be subject to 36 C.F.R. Part 215’s public notice, comment, and administrative appeals provisions. This will add a new layer of procedure to the permitting process that could significantly delay implementation of these activities. The U.S. Forest Service must now give notice of the proposed exploration activity and provide a 30-day comment period. Anyone who submits substantive comments then has 45 days after the U.S. Forest Service approves the activity to file an administrative appeal. The U.S. Forest Service then has 45 days to decide the appeal, and assuming the original decision is affirmed, exploration can begin 15 business days after the appeal decision is issued. All told, this could add approximately 140 days to the permitting process.
The U.S. Forest Service is in the process of drafting revisions to 36 C.F.R. Part 215 in response to Section 428 of the Consolidated Appropriations Act of 2012, Pub. L. No. 112-74, which requires that the U.S. Forest Service provide a pre-decisional objection process rather than the current post-decision administrative appeal process. However, it is unclear whether the changes mandated by the Consolidated Appropriations Act of 2012 extend to activities that are categorically excluded from NEPA review. Regardless, mineral exploration within National Forests that is categorically excluded from NEPA review will be subject to additional process and delay going forward.