(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
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
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
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
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
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
# # #