COMMENTS on kLINTON'S ROADLESS INITIATIVE
Forest Products Industry National
Labor Management Committee
Fact Sheet
Forest Service Roadless Areas
And Transportation Policy Decisions
On January 5, 2001, President klinton
announced a National Forest Roadless Area decision that overrides local level
land use decisions on nearly 60 million acres of national forest lands in the
United States. The Forest Service, under the National Environmental Policy Act (NEPA),
bases the Record of Decision on a flawed process and analysis.
Concurrently, the Forest Service issued
new regulations on the transportation/ roads management policy that encompasses
management and stewardship of the entire national forest system, not just
the roadless areas. The Forest Service released on January 4, 2001, final
revisions to the transportation regulations, a revision to the recently adopted
forest planning regulations and revisions to the Forest Service manual on road
and trail management and planning.
Issues and Concerns:
These regulations embody the fact that
politicians instead of forest managers, are dictating the management of our
national forests. in spite of rhetoric about collaborative stewardship, these
regulations take forest management away from the professionals and local
communities most impacted by national forest decisions.
The combination of changes will make it
extremely difficult, if not impossible, for local level forest managers to
reconstruct or construct roads for resource management. This may have serious
implications to the ability to accomplish long-term wildfire risk reduction on
the 39 million acres of high risk national forest lands.
Millions of tax dollars are wasted in
years of planning and management of the national forests. The roadless area
decision will override millions of dollars in planning and public involvement
regarding national forest land management. In fact, this decision will override
and negate $13 million dollars spent on the Tongass Alaska land management plan
alone. There are 151 national forests, all of which have prepared forest plans
over the last 25 years.
The restrictions impact more acres than
announced by President Clinton. These new regulations create new categories of
lands with restrictions regarding roads and trails, which each have special
application of restrictions and processes. Many of these areas are yet unmapped
and unidentified, creating chaos for planning and land use decisions.
The documents provided to the Public,
including the final environmental impact statement, include erroneous maps and
incomplete information about the impacts of the regulations regarding roadless
areas. Site-specific information about resource values in individual roadless
areas and the impacts of maintaining roadless areas are not provided in the
final EIS.
The roadless decision disregards the
forest health crisis currently existing on over 50+ million acres of national
forest lands and endangers these lands, as well as adjacent private lands, by
potentially restricting needed treatments to reduce the risk of catastrophic
wildfires. During the 2000 wildfire season, more acres burned in roadless areas
than roaded areas in the intermountain west. This decision threatens the Forest
Service's ability to meet its basic land stewardship responsibilities.
Many communities located near national
forests depend on using their natural resources to keep Communities and schools
stable. An additional 50/60 million acres of defacto wildemess will only add to
their decline.
The decision significantly reduces the
ability of the agency to tailor resource management decisions to the needs of
specific sites and their conditions. It is a one-size-fits-all approach to lands
that vary dramatically from northern sub alpine firs to southern pines.
This decision will negatively impact
wildlife and their habitat as noted by five State Wildlife Resource agencies in
their comments on the proposal. The decision limits local level managers from
efficiently or cost-effectively doing vegetation management needed to maintain
wildlife habitat.
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The New U.S. Forest Service
According to clinton/gore/dombeck Regime:
The following article appeared in the Montana Logging Assoc.
monthly newsletter. It was written by MLA's Staff Forester,
Patrick Heffernan with added comments by Chuck Samuelson of MFMU.
It is worthy of further distribution. Thanks to MLA for their
endless research of the mountains of documents in the year gone
by. A horrendous task.
It’s official; a triad of federal rules are now in place that
will completely change the mission and operation of the U.S.
Forest Service.
With action this first week of the 21st Century, the
Clinton administration has finalized the Roadless Area
Conservation rules, the Road
Management Policy and the new Forest Planning Regulations. Here,
briefly, is how it works:
The Roadless Area Conservation rule will remove vast
tracts from consideration for multiple use management. Nationwide,
nearly 60 million acres will be retired from active
management as de facto wilderness areas. You can bet your
bottom dollar that enviro-lobby groups will now try and formalize
many of these roadless areas as Congressionally-designated
Wilderness.
These will go nicely with the existing 104 million acres of
wilderness in the United States - some 35 million of which is
Forest Service land.
Assuming the Roadless Area Conservation rule withstands
judicial review, there will be fewer land use options within
forest planning. Forest Plans developed under the new rules will
have an overall emphasis on the conservation of biological
diversify. For those multiple use lands that are left in our
national forests, it will be a great challenge to authorize areas
suitable for timber harvest, oil and gas exploitation, motorized
recreation and camping.
Compounding the problem for forest planners will be a litany of
other considerations such as endangered species, old growth
concerns and wildlife security , leaving very little
multiple use real estate to work with.
The Road Management policy will implement new rules
applicable for all other roaded USFS lands as well as for
undesignated roadless areas outside of the RARE II inventory. This
policy will make it virtually impossible for any new roads to be
developed in the remaining multiple use lands. It will also make
road reconstruction of existing roads very difficult to authorize.
Any future road construction or reconstruction will only be
authorized if there is a compelling need for the action and such
action will have to be authorized with a full EIS (environmental
impact statement).
Compelling need will be determined by the Regional Forester,
which means that appeals end up in the Chiefs Office. (Washington)
On the other hand, Rangers and Forest Supervisors - using basic
NEPA environmental review - can make road reclamation decisions
locally. With the "right" Forest Service people in
charge, the existing road network could be dismantled in just a
few years.
Make no mistake; this triad of rules effectively implements a
Zero Cut policy an our national forests. If these rules stand, our
National Forests will become 'landscape museums" rather than
the Land of Many Uses.
I wonder what Gifford Pinchot end Teddy Roosevelt would think
of this state of affairs if they were alive today? Their vision of
multiple use and the greatest good has been
sacrificed on the altar of a political legacy. Most importantly
for future Americans, the fate of their forests hang in the
balance.
There are three alternatives for opponents of these rules:
litigation, congressional review or new rulemakirrg. Which
of these is likely?
We can be sure that litigation will be launched by a variety of
entities - recreation groups, forest management interests, states
and other government and private interests. WiII Congress have the
stomach for congressional review? And who could bear another round
of divisive rulemaking?
Whatever happens, the Clinton administration will leave a
legacy of public discord, environmental neglect and the
undermining of decades of investment in forest stewardship.
This has been a sad year; let us hope for renewed
leadership within the Forest Service and the repair of one of the
best and most respected land management agencies in the world.
Editor's Note, President Bush immediately put a hold on some
Items and issues that were about to be
entered into the federal register. Rep. James V. Hansen R-Utah is
now Chairman of the House Resources Committee. Rep. Hansen states
that under "The Congressional Review Act of 1966" and
several others, Congress has 60 legislative days to review
presidential acts of the type former President Clinton has enacted
by circumventing the U.S. Congress.
Here's hoping Congress has enough votes and the gumption to do
It.
A Congressional Review of the Development of the
klinton's Roadless Area Initiative
Committee on Resources
Subcommittee on Forests & Forest Health
Preliminary Staff Report
A Preliminary Staff Report of the
Subcommittee on Forests and Forest Health
of the House of Representatives
Committee on Resources
(February 18, 2000)
On October 28, 1999, the Committee on Resources requested documents from the
Forest Service and the White House concerning the President's initiative to
restrict use on 40 to 60 million acres of "roadless areas" on the
National Forests. Staff has to date received, and conducted a preliminary review
of, thousands of pages of documents provided by the Administration.
A preliminary review of these documents reveals that the Administration's
decision was made improperly, in apparent violation of the due process rights of
affected parties, as well as applicable statutes enacted by Congress to protect
those rights, such as the Administrative Procedures Act (APA) and the Federal
Advisory Committee Act (FACA).
Information received in response to the document request indicates that the
Administration's roadless area initiative was developed in an environmental
vacuum - with virtually all input coming from a select few in the
environmentalist community, primarily: Ken Rait of the Heritage Forest Campaign
Mike Francis, Bill Meadows and Charles Wilkinson of The Wilderness Society, Niel
Lawrence of the Natural Resources Defense Council, Gene Karpinski of USPIRG,
Marty Hayden of the Earth Justice Legal Defense Fund, Dan Beard of the Audubon
Society; and Carl Pope of the Sierra Club.
These individuals had continuous communication with, and access to, the
Federal employees that were directly involved in the creation of the
rule-making, primarily: Chris Wood of the Forest Service, Jim Lyons and Anne
Kennedy of the U.S. Department of Agriculture, Dinah Bear and George Frampton of
the Council on Environmental Quality, and John Podesta, Chief of Staff to the
President. This access was not limited to meetings, which were numerous, but
included the providing of draft language, legal memoranda, and survey research
data to the Administration which was then used to
justify and frame the roadless area rule. For example, Niel Lawrence provided
an extensive legal analysis on the "Executive Branch's Authority to Protect
National Forest Roadless Areas," and Charles Wilkinson provided George
Frampton a memo, "Roadless Area Policy - What's Feasible."
This structured relationship between the Administration and environmentalists
is of serious concern, but more significant is the lack of any evidence of even
a token effort by the Administration to involve other interested parties. This
disregard for any balance in the advice being solicited is evidence of both the
pretextual nature of the decision, which had clearly already been made, and of a
lack of concern for any adverse consequences on the affected users of the forest
lands in question.
Other documents reveal an additional, more casual coordinated effort between
the environmentalists and the Administration. For instance, Ken Rait shared
many, if not all, of his communications plans with the Administration before
implementing them. The documents also show that Ken Rait and the Administration
may have collaborated on paid media campaigns. Additional investigation will be
needed in this matter. Although the Administration seems to show little concern
for its exclusive arrangement with environmentalists, one internal e-mail to
John Podesta expresses dismay that the environmentalists were prematurely
offering information on the President's roadless event to the press.
The records also reveal that poor data and erroneous documents were being
developed and used, and mistakes being made as a result of efforts to move the
process too quickly in an attempt to finalize the rule-making by the end of the
year. For instance, a number of letters from Forest and Regional Offices in
response to data requests from the Washington Office express concern over the
accuracy of their numbers: "numbers less than precise," "This is
an estimate that I hope we are not held accountable for," "Data
derived from forest plans and based on questionable assumptions,"
"Some of our management prescriptions do not easily fit in the categories
provided."
In addition, a revealing Forest Service letter to the Office of the Federal
Register says, "In our haste to get the notice to the Register as quickly
as possible, we failed to notice that the document heading was missing." In
a telling internal Forest Service e-mail, dated 6-9-99 from Deputy Chief Jim
Furnish to the Chief's top assistant, Chris Wood, the desire to move quickly is
again emphasized, stating: "If we wait until the planning rules are in
place and plan revisions occur, it will be too late and the quality of the
product will be quite varied. If we're going to look at roadless separate and
apart from the roads policy issue, then we should put together a team and
address it head on, not indirectly through forest planning. That's my
advice!"
The documents also indicate a clear and troubling disregard for the role of
Congress. In a set of internal question and answers on the roadless issue
developed by Jeremy Anderson, Assistant to Undersecretary Lyons, the answer to
the question regarding what role Congress would play in reviewing the
rule-making process is: "Congress can comment, as all members of the public
can, and I assume Congress can hold oversight hearings, and request documents.
Congress can stymie the process by legislation that limits the Secretary's
authority to accomplish these proposals." In a later version the last
sentence was removed, yet it is still clear that the Administration lacks an
appreciation of the unique role of Congress under the Constitution in shaping
policy on public lands and the environment.
Another internal White House e-mail, dated 10-12-99 from Judy Jablow to
Janelle Erickson, indicates that the President was not the driving force behind
the initiative as represented: "This is what the Forest Service gave me to
say: The President is directing the Forest Service to develop a proposal to
protect roadless areas on national forests." In other words, the Forest
Service is telling the President to say that the President is directing the
Forest Service. This is reminiscent of the scheme used by the Administration to
create a fake paper trail, after the fact, to justify the creation of the Grand
Staircase-Escalante National Monument.
The constant reference throughout the documents to the need for
"permanent protection" of roadless areas reveals a predetermined
outcome of the rule-making. What is not consistent throughout, however, is how
many acres are to be "permanently protected," varying anywhere from 33
million to 60 million acres. This confusion is part of the reason for the
difficulty in generating viable and comparable numbers from the field. An even
more significant clue of a predetermined outcome is contained in a fax from
Dinah Bear to Chris Wood, dated 9/09/99 concerning one of the "remaining
issues" to be resolved for the roadless initiative -- "Further
refinement of the preferred alternative." This implies that a preferred
alternative was in development concurrent with the President's announcement,
well in advance of the public scoping conducted during the initial 60-day
comment period. One wonders at the sincerity of scoping and public input when a
preferred alternative already exists.
As significant as what is included in the documents, however, is what is not.
Absent from the documents are: references to the possible need to reprogram
agency funds for administering the process; concern over the dissension in the
ranks from Regional Foresters on down; any scientific documentation contrary to
the preservation point of view; problems stemming from the Washington Office
requirement to hold hundreds of public meetings at the forest level while not
giving the forests sufficient information on the initiative, greatly restricting
their ability to answer questions. These concerns are being shared by many
federal and non-federal groups and individuals but apparently not by the key
decision-makers within the Administration and the agency.
Considering the above findings and the preliminary review of other documents
received under this request it appears that the White House, the Department of
Agriculture, and the Forest Service violated various statutory standards in the
development of their rule-making. In particular:
1. The Forest Service Violated the Federal Advisory Committee Act by Relying
on Advice from an Unchartered Federal Advisory Committee.
The Federal Advisory Committee Act was enacted in 1972 to combat the secrecy,
wastefulness, and unbalanced representation typical of many committees advising
the Federal government on national policies. FACA requires groups it defines as
advisory committees to comply with formal requirements including: filing a
formal charter; keeping meetings open to the public; giving Federal Register
notice of meetings; keeping minutes; and having a designated Federal officer on
hand at every meeting. FACA controls the creation, membership and jurisdiction
of advisory committees and it creates procedural requirements intended to
increase openness and Federal control of committee proceedings.
FACA defines an advisory committee as "any committee, board, commission,
council, conference, panel, task force, or other similar group . . . which is .
. . established or utilized by one or more agencies, in the interest of
obtaining advice or recommendations for the President or one or more agencies or
officers of the Federal government." 5 U.S.C. app. § 3(2). An advisory
committee does not have to be formally established nor does it require a set
funding mechanism; rather, an advisory committee exists if a collaborative group
is used by a Federal agency for the purpose of obtaining advice or
recommendations. (1)
As stated above, the Forest Service relied on the advice of a group of
outside interests with a stake in the roadless area rule-making -- in violation
of FACA -- meeting numerous times over the course of the development of the
rule-making. All of the Federal agency employees in these meetings were actively
involved in the creation of the roadless areas review. This outside group
provided draft language, legal memoranda and survey research data on the
roadless areas issue which was used by the Forest Service as justification for
the roadless area review.
Interestingly, the National Forest Management Act (NFMA) authorizes the
Forest Service to use advisory committees:
In providing for public participation in the planning for and management of
the National Forest System, the Secretary, pursuant to [FACA] . . ., shall
establish and consult such advisory boards as he deems necessary to secure full
information and advice on the execution of his responsibilities. The membership
of such boards shall be representative of a cross section of groups interested
in the planning for and management of the National Forest System and the various
types of use and enjoyment of the lands thereof." 16 U.S.C. 1612(b).
The Forest Service has often cited the need for the transportation policy to
effectuate the management of national forests. With an issue of this magnitude,
the Forest Service should have availed itself of this authority and formally
chartered an advisory committee which would have ensured balanced representation
of outside interest groups and public notification of all proceedings. Instead,
the Forest Service relied on the advice and recommendation of only
representatives of the environmental community provided behind close doors.
The Forest Service's FACA violation in this instance is all the more
astonishing because of the Forest Service's extensive guidance on FACA's
applicability to meetings between Forest Service employees and outside groups.
As the most recent memorandum on FACA from the Chief warns, "no group can
become a preferred source of advice for the agency without sparking FACA
concerns." Memorandum from Chief to All Employees re: Recent Federal
Advisory Committee Act Interpretations (Oct. 2, 1995). The Memorandum continues
that "federal control would be inferred if the Federal Government [directly
or indirectly] funds, selects members, or sets the agenda of the group."
Groups controlled even in part by the Forest Service may trigger the
requirements of FACA. "If the Federal Government organizes or controls even
in part a group containing private citizens or organizations, there is a high
probability that it violates the committee-formation requirements of FACA."
In this case, it is clear that this select group of environmentalists became
the "preferred source of advice" for the Forest Service, and the
Clinton Administration, in the development of the roadless policy.
2. The Forest Service Violated the Administrative Procedure Act
Prohibition on Ex Parte Communications during the Development of its Roads
Policy.
The Administrative Procedure Act (APA) establishes detailed procedures for
agency rule-makings, including requirements on how public hearings held in
conjunction with those rule-makings should be conducted. (5 U.S.C. 553, 556). In
addition, when an agency conducts a rule-making with public hearings, the APA
places a prohibition on "ex parte communication relevant to the merits of
the proceeds" between interested persons outside the agency and agency
employees who are or may reasonably be expected to be involved in the decision.
(5 U.S.C. 557). Further, if such ex parte communication occurs, agency employees
must include in the public record "all such written communication;
memoranda stating the substance of all such oral communications; and all written
responses, and memoranda stating the substance of all oral responses." Id.
The prohibition on ex parte communications "shall apply beginning at
such time as the agency may designate, but in no case shall they begin to apply
later than the time at which a proceeding is noticed for hearing."Id.
In conjunction with the roadless areas review, in early 1998 the Forest
Service commenced two associated rule-makings: an advanced notice of proposed
rule-making on a transportation plan and a proposed interim rule prohibiting
road construction. In conjunction with these rule-makings, the Forest Service
held meetings and otherwise solicited public comments on the proposals. The
interim rule on roadless areas was finalized a year later and the transportation
rule is still pending. However it is now clear that while the Forest Service was
receiving written comments on its proposals and holding public meetings on its
proposals, it was meeting - in secret - with a small, select group of
environmentalists with a direct interest in the outcome of the roadless area
review and transportation policy. Yet, the public record for the rule-makings
does not show that these ex parte communications ever occurred.
Staff will continue to review and analyze the documents to determine further
the legality and appropriateness of the Administration's actions in making this
decision. Staff recommends an aggressive follow-up with more hearings, further
document requests, and staff interviews.
U.S. House of Representatives
Committee on Resources
Subcommittee on Forests and Forest Health
1337 Longworth House Office Building
Washington, D.C. 20515
(202) 225-0691
Staff Contact: Doug Crandall
1. In 1995, Congress specifically
exempted from the Act's definition of an "advisory committee"
"meetings held exclusively between federal officials and elected officials
of State, local, and tribal governments (or their designated employees with
authority to act on their behalf) acting in their official capacity."
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http://www.house.gov/resources/106cong/forests/staffreportroadlessinfluence.htm
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