October 11, 1999
"Defendant concedes that the regulations allow immediate judicial review under the Administrative Procedure Act, 5 U.S.C. Sections 501-706, of denial of a permit application. He argues, however, that the regulations require exhaustion of a potentially lengthy administrative appeals process before an applicant or permit holder may challenge terms or conditions in federal court. Defendant is wrong. But the regulatory administrative appeals process is not available to noncommercial group use permit applicants or holders, and such person may therefore immediately go to court. "The administrative appeal process, codified at 36 C.F.R. Sections 251.80 - 251.102, is available only to a limited class of parties, a class that does not include Defendant or others like him. Only persons who are responding to a FORMAL SOLICITATION [i am adding emphasis here, not in original] from the Forest Service may invoke the regulations' administrative remedies. 36 C.F.R. Section 251.86(a)("Only the following may participate in the appeals process provided under this subpart: [a]n applicant, who, IN RESPONSE TO A PROSPECTUS OR WRITTEN SOLICITATION OR OTHER NOTICE BY THE FOREST SERVICE, [this emphasis is in the Govt memo], files a formal written request for a written authorization to occupy and use National Forest System land . . . . ")(emphasis added). [here the Govt has a footnote which follows]. The Forest Service has consistently interpreted this portion of the regulatory scheme to make administrative appeals available only when the agency formally solicits applications. See, e.g. In re Epley, #07-04-12-06-01 (May 1, 1997), discretionary review denied, #97-04-00-0024 (July 15, 1997). [a footnote here will be omitted]. The Forest Service never formally solicits applications for noncommercial group uses, and there is no evidence of such a solicitation in this case. Accordingly, Defendant and any other applicants for noncommercial group uses may go directly to court to challenge any terms or conditions the Forest Service imposes. [here is another footnote that follows]"
"Similiarly, a holder of a noncommercial group use permit is not compelled to participate in an administrative appeals process under 36 C.F.R. Section 251.86(b). That section makes administrative remedies available to a permit holder seeking 'relief from a written decision related to that authorization." Thus, a plaintiff wishing to challenge a term or condition in federal court may do so the moment he receives the permit, since at that point there is no "written decision" from which to appeal."
"If this Court finds that the application of the Forest Service's appeal regulations to noncommercial group uses prevents prompt judicial review, the severability arguments explained in part III.C of this brief suggest that this Court should simply rule that the First Amendment bars the application of the appeal regulations to noncommercial group uses. Such a ruling would prevent the Forest Service from requiring exhaustion before an applicant for or holder of a noncommercial group use authorization brings a dispute to district court. As explained above, the Forest Service does not believe that it can require exhaustion in the noncommercial group use context anyway."
251.86(b) provides that a party to the adm. appeals process includes: "The signatory(ies) or holder(s) of a written authorization to occupy and use National Forest System land covered under Section 281.82 [see above where i cite (8)] of this subpart who seeks relief from a written decision related to that authorization."
"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."
With Heart, Mind, and Spirit,