23G

• Board Meeting Date: 4/30/2004
• Description: 23G
• Board Meetings - Doc Type: Executive Session

amendment suspends standards for protecting species habitat" should have put the agency on
notice that they wished to take issue with the Madigan directive. Such references do not
expressly challenge the directive itself, nor do they suggest Plaintiffs' present claim that the
directive should have been subjected to the APA's public notice and comment procedures The
Court finds that such vague references are patently insufficient to put the Forest Service on notice
of Plaintiffs' Thirteenth Claim for Relief.
Plaintiffs also maintain that they preserved this claim for review by raising their concern
about the Madigan directive in numerous comment letters sent prior to the submission of the
Notice of Appeal. Where an issue is raised in a comment letter but not in a subsequent
administrative appeal, the logical conclusion is that the agency's response satisfactorily addresses
the issue or the appellant has otherwise decided the issue was no longer worth pursuing.
Allowing judicial review of issues raised solely in comment letters turns that logic on its head
and generates needless paperwork. Instead of being able to assume that an administrative appeal
addresses all the issues an appellant wishes to pursue, administrative agencies would have to fish
through all the appellants' comment letters for issues that might have been raised and then
address those issues in its administrative decision — even though the appellant may no longer be
interested in pursuing the issue. This Court does not countenance such a result.
Defendant - Intervenors also argue that Plaintiffs did not sufficiently raise, in their Notice
of Appeal, the issue addressed in their Tenth Claim for Relief. Plaintiffs' Tenth Claim alleges a
violation of NFMA by failing to allow public participation in amending the Forest Plan.
However, Plaintiffs stated,
Neither the notice issued regarding the Long Draw Dam and Reservoir land -use