23G

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

DISCUSSION
A. EXHAUSTION OF ADMINISTRATIVE REMEDIES
Section 10(c) of the Administrative Procedure Act (APA), 5 U.S.C. § 704(c), requires
exhaustion of administrative appeals where mandated either by statute or agency rule. The Forest
Service regulations expressly require administrative appeal of a decision documented in a Record
of Decision before judicial review may occur. 36 C.F.R. § 215.7 (1994). Under these
regulations, an appellant must file a written appeal which provides sufficient written evidence
and rationale to show why the decision should be remanded or reversed. 36 C.F.R. § 215.14(a)
(1994) The regulations require an appellant to both identify the specific changes in the decision
that the appellant seeks, or portion of the decision to which the appellant objects, and state how
the appellant believes the decision violates the law, regulation or policy. 36 C.F.R. §
215.14(b)(4) & (b)(5) (1994). "[T]he claims raised in the administrative appeal and in the federal
complaint must be so similar that the district court can ascertain that the agency was on notice of,
and had an opportunity to consider and decide, the same claims now raised in federal court."
Kleissler v US Forest Serv., 183 F.3d 196, 202 (3` Cir. 1999). Other courts have applied the
APA's statutory exhaustion requirement based on the part 215 regulations to dismiss claims.
See, e g, Wilderness Society v Bosworth, 118 F.Supp.2d 1082, 1099 -1101 (D. Mont. 2000);
Shenandoah Ecosystems Defense v U.S Forest Sery , 144 F.Supp.2d 542, 556 -57 (W.D. Va.
2001); Friends of the Earth v U.S. Forest Sery , 114 F.Supp.2d 288, 291 (D. Vt. 2000).
On September 13, 1994, Plaintiffs submitted a Notice of Appeal and Statement of
Reasons regarding the land -use authorization issued for Long Draw Dam and Reservoir. That
Notice spanned 27 pages of text. (AR -LD 5114 -41.) Plaintiffs' Second Claim for Relief alleges
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