may be desired in specific "functional hand- 

 books and guides" or the adoption of the 

 FOREST model as a working management 

 guide appear to be covered by this exemption. 



We have arrived, then, at a partial answer 

 to our first question, What are the legal re- 

 quirements for public involvement? With re- 

 spect to decisionmaking, none, beyond the 

 desire on the part of the agency to keep the 

 public informed as to its activities, and with 

 its possible exemptions, the Secretary's rule 

 described above. This conclusion should not 

 be allowed, however, to overshadow the im- 

 portant function of public involvement. The 

 discussion in a later section will indicate how 

 the FOREST model suggests the shape that 

 a prudent policy might take. 



Appeal from Agency Decisions 



The legal requirements for public involve- 

 ment in another area remain to be considered. 

 A major problem the Forest Service shares 

 with some other Federal agencies is the cur- 

 rent propensity of many individuals and inter- 

 est groups to seek court action against a deci- 

 sion by a government agency on the basis that 

 the decision is not in the public interest. In 

 the earlier review of legislation, some of the 

 relevant court interpretations have been dis- 

 cussed. There is evidence both of reluctance 

 to substitute the opinion of the court for that 

 of the agency, and of a desire to see that im- 

 portant decisions are made in compliance 

 with the intent of the legislation. 



From most indications the Forest Service 

 is not exempt from the provisions of section 

 7 01 of the Administrative Procedures Act 

 which provides that the action of "each 

 authority of the Government of the United 

 States" is subject to judicial review except 

 where there is a statutory prohibition on re- 

 view or where "agency action is committed to 

 agency discretion by law." 70 



The legal question is, just when is a deci- 

 sion by an agency to be held unlawful and set 



5 U.S.C. 701. The exception is a narrow one. 

 See Burger (1965), p. 55 ff.; also, U. S. Congr. 79, 1st 

 Sess., Senate Report No. 758, Senate Committee on 

 the Judiciary, 1945, p. 26. 



aside according to the standards set up in sec- 

 tion 706 of the Administrative Procedures 

 Act? Section 706 calls for such action if deci- 

 sions are found to be 



a. arbitrary, capricious, an abuse of dis- 

 cretion, or otherwise not in accordance 

 with law, 



b. contrary to constitutional right, power, 

 privilege, or immunity, 



c. in excess of statutory jurisdiction, 

 authority, or limitations, or short of 

 statutory rights, 



d. unsupported by substantial evidence in 

 a case subject to sections 556 and 557 

 of this title or otherwise reviewed on 

 the record of any agency hearing pro- 

 vided by statute, 



e. without observance of procedure re- 

 quired by law, or 



f. unwarranted by the facts to the extent 

 that the facts are subject to trial de 

 novo by the reviewing court. 



The implications of the act and of court in- 

 terpretation of the NEPA are fairly clear. As 

 far as possible and within the limits of pru- 

 dence, all decisions applicable to the natural 

 resources of the FOREST should be fully doc- 

 umented and should be based on a complete 

 and comprehensive multiple use — environ- 

 mental impact analysis. The likelihood that 

 the contemplated action may be raised as an 

 issue in the courts gives this precaution special 

 force, but is difficult to estimate. Adoption of 

 the FOREST model and adherence to the 

 management prescriptions implied in it will 

 adequately serve the purpose. 



The opinion has been stated by Rogers 

 (1969, p. 121, 122, 131) that the public can 

 do little to counter actions taken by the For- 

 est Service that are contrary to what they feel 

 is the public interest because the court cannot 

 define the legally directed course of action. 

 Rogers considers the "uncontrolled discretion 

 in executive decisionmaking" of the agency to 

 be guided by "statutes vague to the point of 

 license" and goes on to say that "most of the 

 statutes themselves are of such generality as 

 to afford little, if any, standards by which a 

 court could say that administrative decisions 



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