(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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