relevant information behind that decision, 

 much controversy could be avoided. In their 

 eyes, the public is responsive and receptive to 

 the work of the agency if it is made aware of 

 the complex management considerations that 

 enter into any given decision. 



The public, if the numerous articles in the 

 news media are indicative, prefers the former 

 approach, allowing local residents actual in- 

 volvement in decisionmaking. Two questions 

 are relevant here. First, what, if any, legal re- 

 quirements exist with respect to public in- 

 volvement? Second, in the absence of any 

 legal requirements, what policy might the 

 Forest Service best adopt? 66 Answers to the 

 second question will be explored in a separate 

 discussion, but we can consider the first ques- 

 tion here. 



Program Formulation 



The Forest Service Manual (Sec. 1033-8) 

 states that it is the objective of the agency to 

 "involve the public in forestry policy and pro- 

 gram formulation." In pursuit of that objec- 

 tive the Forest Service will "seek out and ob- 

 tain local and national views in the process of 

 policy and program formulation." The agency 

 strives to discharge its "responsibilities in 

 ways that make our management processes 

 visible and our responsible people accessible." 

 Further, it will "consult with and seek coop- 

 erative actions with agencies at all levels of 

 Government and with private groups and in- 

 dividuals, in programs for resource manage- 

 ment and economic development." 



Although the statements in the Manual 

 have not as yet been deemed law (as are the 

 Secretary's rules and regulations contained in 

 the Code of Federal Regulations), there is 

 some feeling within the legal profession that 

 in the absence of exercise of the rulemaking 

 function, they will take on the coloring of 

 law. In this light, the statements just quoted 

 would seem to place the agency under com- 



66 The Forest Service is currently formulating di- 

 rectives on public involvement. The direction sug- 

 gested here should be compared with USDA Forest 

 Service, A guide to public involvement in decision- 

 making, 1971. 



pulsion to seek out public opinion in policy 

 formulation. The wording in the Manual is so 

 broad, however, that it is doubtful that an in- 

 dividual could obtain standing in court on the 

 basis of not having had access to the decision- 

 making function. In fact, the remaining por- 

 tions of applicable law seem to preclude that 

 possibility. 



A detailed discussion of such aspects of 

 rulemaking and policy formulations as notice, 

 hearings, publications, investigation, and 

 other matters is contained in American Juris- 

 prudence. 67 It states that in general, notice 

 and hearing is not a constitutional re- 

 quirement, although certain statutes call for 

 these in specific situations. In the absence of 

 statutory restrictions, 



An agency ... is no more required to give previ- 

 ous notice of an intent to make a regulation or 

 to grant a hearing on the merits of the regula- 

 tion to be adopted than is the legislature in ex- 

 ercising its lawmaking functions . . . Where a 

 rule of conduct applies to more than a few 

 people, it is impracticable that everyone should 

 have a direct voice in its adoption .... An ad- 

 ministrative agency in the exercise of legislative 

 power is not limited to hearings required or 

 provided by statute but may conduct an inde- 

 pendent investigation and survey to determine 

 facts as a basis of an order or regulation . . . 

 An administrative agency not required to 

 grant a hearing as a basis of its regulations may 

 make its rules without regard to the evidence 

 heard, and special findings of fact are not neces- 

 sary to support a regulation where the statute 

 does not require it either in terms or effect: 



With only a few exceptions there is not, 

 from a strict legal point of view, any require- 

 ment for public involvement in the decision- 

 making process of the Forest Service. Excep- 

 tions apply to such matters as certain aspects 

 of wilderness establishment, actions and ap- 

 peals under certain acts, and particular plans 

 affecting Indian lands or range allotments. 



Beyond these provisions, two additional 

 points must be considered. First, the National 

 Environmental Policy Act has been supple- 

 mented by Executive Order 11514, which in 

 Section 2, Responsibilities of Federal Agen- 

 cies, stipulates that agencies shall: 



67 2d ed., v. 2, Administrative Law, Sec. 276-283. 

 San Francisco, Bancroft-Whitney Company, 1962. 



52 



