ELR Citation: ELR 21246
No(s). 93-3261 (7th Cir. Jun 1, 1995)

The court holds that an individual's suit to enjoin a U.S. Forest Service timber sale in the Shawnee National Forest in southern Illinois is barred for failure to exhaust administrative remedies. The Forest Service had dismissed the individual's initial administrative appeal because his notice of appeal did not contain a statement of reasons for his objection to the sale, as required by U.S. Department of Agriculture (USDA) regulations. The Forest Service later rejected his renewed appeal, which he filed more than 18 months later, as untimely. The court first notes that the district court's judgment on whether to waive the federal common-law doctrine of exhaustion of administrative remedies is entitled to considerable deference, because the question of waiver is highly particularistic and case-specific. The court then holds that the district court correctly refused to condone the individual's extremely long delay in pursuing his administrative appeals. Had the individual complied with the Forest Service's reasonable requirements for filing an appeal, the district court would have had a much more informative record of the Forest Service's reasons for authorizing the timber sale. The court holds that his argument that the failure was technical and unsubstantial is unpersuasive. The court next holds that the Administrative Procedure Act, 5 U.S.C. §704, requires exhaustion of administrative remedies in this case, and that the individual failed to exhaust. USDA regulations explicitly require as a prerequisite for seeking judicial review, an appeal to the regional forester from the decision of the supervisor of a national forest to sell timber.

[A related decision is published at 25 ELR 20300.]

Counsel for Plaintiff
Dr. Joseph Glisson
Rural Rt. 2, Box 84, Creal Springs IL 60293
(618) 966-2547

Counsel for Defendants
William Coonan, Ass't U.S. Attorney
U.S. Attorney's Office
Nine Executive Dr., Ste. 300, Fairview Heights IL 62208
(618) 628-3700

Before POSNER, Chief Judge, and FAIRCHILD and KANNE, Circuit Judges.