[Code of Federal Regulations] [Title 36, Volume 2] [Revised as of July 1, 2008] From the U.S. Government Printing Office via GPO Access [CITE: 36CFR251.91] [Page 337-338] TITLE 36--PARKS, FORESTS, AND PUBLIC PROPERTY CHAPTER II--FOREST SERVICE, DEPARTMENT OF AGRICULTURE PART 251_LAND USES--Table of Contents Subpart C_Appeal of Decisions Relating to Occupancy and Use of National Forest System Lands Sec. 251.91 Stays. (a) A decision may be implemented during the appeal process, unless the Reviewing Officer grants a stay or unless a term grazing permit holder appeals a decision and simultaneously requests mediation pursuant to Sec. 251.103. In the case of mediation requests, a stay is granted automatically upon receipt of the notice of appeal for the duration of the mediation period as provided in Sec. 251.103. (b) An appellant or intervenor may request a stay of a decision at any time while an appeal is pending, if the harmful effects alleged pursuant to paragraph (c)(3) of this section would occur during pendency of the appeal. The Reviewing Officer shall not accept any request to stay implementation of a decision that is not scheduled to begin during pendency of the appeal. (c) To request a stay of decision, an appellant or intervenor must-- (1) File a written request with the Reviewing Officer; (2) Simultaneously send a copy of the stay request to any other appellant(s), to intervenor(s), and to the Deciding Officer. (3) Provide a written justification of the need for a stay, which at a minimum includes the following: (i) A description of the specific project(s), activity(ies), or action(s) to be stopped. (ii) Specific reasons why the stay should be granted in sufficient detail to permit the Reviewing Officer to evaluate and rule upon the stay request, including at a minimum: (A) The specific adverse effect(s) upon the requester; (B) Harmful site-specific impacts or effects on resources in the area affected by the activity(ies) to be stopped, and (C) How the cited effects and impacts would prevent a meaningful decision on the merits. (d) A Deciding Officer and other parties to an appeal may provide the Reviewing Officer with a written response to a stay request. A copy of any response must be sent to all parties to the appeal. (e) Timeframe. The Reviewing Officer must rule on a stay request no later than 10 calendar days from receipt. (f) Criteria to consider. In deciding a stay request, a Reviewing Officer shall consider: (1) Information provided by the requester pursuant to paragraph (c) of this section including the validity of any claim of adverse effect on the requester; (2) The effect that granting a stay would have on preserving a meaningful appeal on the merits; (3) Any information provided by the Deciding Officer or other party to the appeal in response to the stay request; and (4) Any other factors the Reviewing Officer considers relevant to the decision. (g) Notice of decision on a stay request. A Reviewing Officer must issue a written decision on a stay request. (1) If a stay is granted, the stay shall specify the specific activities to be stopped, duration of the stay, and reasons for granting the stay. (2) If a stay is denied in whole or in part, the decision shall specify the reasons for the denial. (3) A copy of a decision on a stay request shall be sent to all parties to the appeal. (h) Duration. A stay shall remain in effect for the 15-day period for determining discretionary review (Sec. 251.100), unless changed by the Reviewing Officer in accordance with paragraph (i) of this section. (i) Change in a stay. A Reviewing Officer may change a stay decision in accordance with any terms established in the stay decision itself or at any time during pendency of an appeal that circumstances support a change of stay. In making any changes to a stay decision, the Reviewing Officer must issue [[Page 338]] a written notice to all parties to the appeal explaining the reason for making the changes and setting forth any terms or conditions that apply to the change. (j) Petitions to change a stay. An appellant or intervenor may petition a Reviewing Officer to change or lift a stay at any time during the pendency of an appeal. Such petitions must be in writing, must explain how circumstances have changed since the stay was imposed, and must state why the change in the stay is being requested. The petitioner must send a copy of the petition to all parties to the appeal. (k) Appeal of stay decision or changes in stay. A Reviewing Officer's decision to grant, deny, lift, or otherwise change a stay is not subject to further appeal and review, except when the first-level Reviewing Officer was the Forest Supervisor. In this instance, the Regional Forester has discretion to review. [54 FR 3362, Jan. 23, 1989, as amended at 54 FR 34510, Aug. 21, 1989; 64 FR 37846, July 14, 1999]