USFS Denies Redacted Appeal Of Heli-Ski Permit Selection Decision

Your Government counsel.™

The Forest Service recently denied an appeal of a decision to select a party for the potential award of a heli-skiing permit in the Chugach National Forest, finding that the appeal “largely boils down to a disagreement in judgment between the Forest Service evaluation panel and an unsuccessful permit applicant.”  Agreeing with the arguments made by the selected party, the Forest Supervisor concluded that the evaluation panel had “appropriately and reliably applied its expertise and experience with helicopter skiing to select the best qualified applicants,” thus the Forest Supervisor saw “no reason to reverse” the decision.  The decision reiterates the difficulty in prevailing on an appeal that essentially asserts the agency exercised bad judgment as opposed to having clearly violated the explicit terms or procedures set out in the prospectus.  In addition, the decision also re-emphasized the importance of preparing a very thorough and detailed proposal, noting that the selected party “obviously put serious thought and effort into their operations and safety plan” while the appellant’s proposal “seemed brief and lacked detail.”  As we advise our clients, if it is not in your proposal, it does not exist.

The appeal process was notable for allowing the appellant to attach a copy of its proposal to its appeal, reference the substance of that proposal in its appeal but withhold the proposal from the intervening parties.  The agency accepted the appeal and subsequently issued a redacted version of the proposal to the intervenor which blacked out 45 of the 57 pages in the proposal.  As a result, the intervenor was not able to fully address the assertions set out in the appeal.  Nonetheless, the agency permitted the appeal to proceed in this manner.  While the agency’s appeal procedures make no provision for protective orders that would permit submitting sealed documents, the ability to do so can factor into the strategy of appellants and intervenors.

The selected party which intervened was represented by The Garden Law Firm PC.

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