| United States Senate
WASHINGTON, DC 20510 December 10, 1999 BY FACSIMILE/ Dear Chief Dombeck: We are writing to register our serious concerns with how the Forest Service is conducting the scoping process for the Environmental Impact Statement (EIS) to accompany the Roadless Areas rulemaking. We specifically are concerned with the schedule for, and the conduct of, the local meetings. As you know, we and 31 other Senators have written to Secretary Glickman formally requesting that you extend the comment period for this rulemaking for a variety of reasons. The need for this extension is reinforced by the Forest Service's conduct of the scoping process which appears to violate the terms and spirit of, both Council on Environmental Quality (CEQ) and Forest Service National Environmental Policy Act (NEPA) regulations and guidance. Roadless Areas Rulemaking On October 19th, the Forest Service initiated a rulemaking process on roadless areas within the National Forest System. 64 Fed. Reg. 56306 (Oct. 19, 1999). This Notice of Intent began the scoping process for the EIS and provided a 60-day public comment period on the scope of the analysis to be conducted in the EIS, alternatives to be considered in the EIS, and whether or not the rulemaking should apply to the Tongass National Forest. The Notice of Intent noted that it is important for interested members of the public to participate in the scoping process so that the Forest Service can "meaningfully consider them and respond to them in the draft environmental impact statement." Id. We wholeheartedly agree with this guidance. Unfortunately, upon close examination, the Forest Service has done little, if anything, to facilitate meaningful public involvement to date in its roadless areas rulemaking and EIS. This must be promptly corrected. NEPA and Public Participation The National Environmental Policy Act has been described as this nation's environmental charter because it established a procedure for Federal agencies to give consideration of environmental factors in their decisions. NEPA also states that "each person has a responsibility to contribute to the preservation and enhancement of the environment." 42 U.S.C. & 4321 et seq. Accordingly, public participation is an integral component of the NEPA process and Federal agencies have been directed to "develop procedures to ensure the fullest practicable provision of timely public information and understanding of Federal plans and programs with environmental impacts in order to obtain the view of interested parties" including public hearings. Protection and Enhancement of Environmental Quality, Exec. Order 11514 as amended by Exec. Order 11191, 3 C.F.R. 123 (1978). This direction is reflected in CEQ regulations implementing NEPA. NEPA procedures must insure that environmental information is available
to public officials and citizens before decisions are made and before
actions are taken . . . Accurate scientific analysis, expert agency
comments, and public scrutiny are essential to implementing NEPA 40 C.F.R.
& 1500.1 (1999) (emphasis added) Importance of Scoping Scoping is the "early and open process for determining the scope of issues to be addressed and for identifying the significant issues related to the process." 40 C.F.R. & 1501.7 (1999). The concept of scoping was one of the most commented upon innovations in the 1978 CEQ regulations. See 43 Fed. Reg. 55978 at 55982 (Nov. 29, 1978). While CEQ regulations do not set forth a required procedure for scoping, the regulations do require that scoping be an "open" process with public notice and may include public hearings when warranted. 40 C.F.R. & 1501.7 (1999). CEQ regulations further note that Federal agencies shall "make diligent efforts to involve the public in preparing and implementing their NEPA procedures." 40 C.F.R. & 1506.6 (1999). Critical to a successful scoping process is "appropriate public notice and enough information available on the proposal so that the public and relevant agencies can participate effectively." Forty Most Asked Questions concerning CEQ's National Environmental Policy Act Regulations at 46 Fed. Reg. 18026 at 18030 (March 16, 1981). In subsequent guidance on its regulations, CEQ noted "a new and significant responsibility on agencies and public alike during the scoping process to identify all significant issues and reasonable alternatives to be addressed in the EIS." Guidance Regarding NEPA Regulations, 48 Fed. Reg. 34263 (1983). The guidance also notes that public involvement during the scoping period is important because it helps identify problems early in the review process and can lead to better decisions. It also increases public confidence in NEPA, thereby reducing the number of legal challenges to the proposal when implementation of the proposed action occurs. Given the importance of scoping to the entire NEPA process, CEQ has provided detailed guidance to Federal agencies on the scoping process. CEQ Memorandum for General Counsels, NEPA Liaisons, and Participants in Scoping (April 30, 1981) (hereinafter "CEQ Scoping Memorandum"). Scoping is the appropriate time for a Federal agency to build confidence and trust on all sides of a proposal. In 1997, CEQ reiterated the importance of public involvement in the NEPA process. The success of a NEPA process heavily depends on whether an agency has systematically reached out to those who will be most affected by a proposal, gathered information and ideas from them, and responded to the input by modifying or adding alternatives, throughout the entire course of a planning process. CEQ, The National Environmental Policy Act: A Study of its Effectiveness After Twenty-Five Years at 17 (Jan. 1997) (hereinafter "NEPA Effectiveness Study"). Scoping Process Used for the Roadless Areas EIS Nonetheless, despite clear CEQ direction for scoping to be an "open" process with sufficient information for "effective" public participation, that is not how the Forest Service is conducting the scoping for the Roadless Areas EIS. Accordingly, we strongly recommend that you rethink your scoping process and start again. To do otherwise, will expose the Forest Service to endless litigation over the roadless areas rulemaking and undermine public confidence in the rulemaking. It also will make it difficult, if not impossible, for many members of the Senate to support your anticipated FY2000 reprogramming request to fund this rulemaking effort. 1. The Forest Service Has Provided Inadequate Information on the Roadless Areas Proposal. As CEQ has noted, for effective scoping, an agency must provide sufficient information on the proposal, including alternatives, to be examined in the EIS. CEQ directs that Federal agencies: put together a brief information packet consisting of a description of the proposal, an initial list of impacts and alternatives, maps, drawings, and any other material or references that can help the interested public understand what is being proposed . . . the purpose of the information is to enable participants to make an intelligent contribution to scoping in the EIS. CEQ Scoping Memorandum at II.B.2. An information packet is especially needed when an EIS has not been preceded by an Environmental Assessment. Id. This is clearly the case with this rulemaking. The Forest Service has not provided sufficient information on the roadless areas proposal for interested parties to make an "intelligent contribution" to the process. For example, while the Forest Service has estimated the acreage which will be impacted by the roadless areas proposal, it has not indicated on a forest-by-forest basis, where those areas are located. IN the absence of this specific information, it is difficult for anyone to provide any meaningful comments to this process. All in all, in the absence of such information it is difficult for the public, other Federal agencies, state and local governments, and Congress, to assess the roadless areas proposal and its potential impacts. 2. The Public Meetings Held by the Forest Service Have Been Improperly Organized and Conducted. Initially, we commend the Forest Service for recognizing that public meetings need to be held on the roadless areas proposal. By scheduling a large number of public meetings throughout the country, the Forest Service concedes the national significance of the rulemaking and the high degree of public interest. However, the scheduling and conduct of these public meetings appear to directly undermine the purpose of holding public meetings; namely, gathering public comment on the proposal and alternatives to be analyzed in the EIS and instilling public confidence in the rulemaking and NEPA process. First, the Forest Service has provided inadequate notice to interested parties on the public meetings. CEQ has stressed that "appropriate public notice" is needed for effective public participation. Appropriate notice has not occurred for both the regional meetings, as well as for many of the local meetings. For instance, forest users from Wisconsin and Michigan had as little as four days notice to make arrangements to travel to a meeting on November 16th -- a meeting which was held several hundred miles from the nearest National Forest. Likewise, forest users in Regions One and Four had very little notice to prepare for their Regional meetings in Missoula on November 17th and in Salt Lake City on November 17th. The Alaska Regional meeting notice was only two days in advance of the meeting. At the same time, while the Forest Service has included the schedule for the local meetings on its website, that information was not available on the website until December 1st. Many of the meetings occurred before this information was generally available to the public. Local meetings were held in Regions One, Three, Four, Five, Six, Eight and Nine before the list was published on the Forest Service website. In many regions, interested parties had to call the Forest Service to find out if, and/or when, a meeting might be held in their area. There were also local meetings held in virtually every region on the same day, or the day after, the general listing for local meetings became available on the Forest Service website. Second, the Forest Service scheduled meetings on neighboring national forests for the same time and date. For example, local meetings were scheduled for the Bitteroot and Clearwater National Forests for December 8th. Some companies -- like Rocky Mountain Log Homes of Hamilton, Montana, a very small, high-quality log home fabricating company -- purchase Forest Service timber sales from fifteen to twenty different forests in Regions One, Two, Four and Six. Company representatives were expected to cover meetings on seven different forests in four separate regions on December 8th. By scheduling conflicting meetings, you have eliminated any reasonable opportunity for a rancher, timber purchase, recreationalist, or environmentalist that is interested in activities on more than one national forest to attend meetings on all of these national forests. This is completely unacceptable, and would have been avoidable with a minimum amount of planning and foresight. Third the Forest Service has been inconsistent in the number of meetings to be held on each national forest. CEQ guidance specifically notes: It is important to tailor the type, and timing and the location of public and agency comments to the proposal at hand. For example, a proposal to adopt a land management plan for a National Forest in a sparsely populated region may not lend itself to calling a single meeting in a central location. CEQ Scoping Memorandum at II B.3. The obvious goal of this direction is to encourage, not discourage, public attendance at the meetings. Many national forests seem to have chosen to hold only one meeting, thereby forcing interested parties to travel to the Forest Supervisor's office to comment. We believe that the approach taken by the National Forests of Mississippi and in the Great Lake States - with multiple meetings at a variety of meeting sites - must be replicated in ALL national forests. If some national forests can schedule multiple meetings when their District Offices are less than 30 miles apart, then the Agency clearly should schedule multiple meetings on national forests where District Offices are a hundred miles or more apart. For example, when most of the Medicine Bow National Forest is centered around the towns of Saratoga and Encampment, why should the citizens of the North Platte Valley have to travel over 100 miles to either Laramie or Casper, Wyoming to participate in a public meeting? Fourth we have been told there has been insufficient time during the meetings to allow interested parties to offer public comment. In some meetings, participants' names were drawn from a hat, and only those lucky few were given a few minutes for comment. This limitation is wholly unacceptable. CEQ has warned Federal agencies, "when people are admitted to a meeting, it makes no sense to refuse their requests to speak." CEQ Scoping Memorandum at II.C.1.c. Clearly, despite this warning, the Forest Service is doing this. In Portland, Oregon, for example, participants were forced to draw names out of a hat to participate in a lottery for speaking slots. They then were limited to five minutes. Worse still, participants in some local meetings, such as those held on the Mark Twain National Forest were refused the right to give any public comments. Rather, they were told to submit written or electronic comments. It is extremely troubling to learn that the large, Regional meetings held in some of the largest urban centers, usually in University campus facilities, were public hearings where oral testimony was recorded. Yet many of the local meetings participants are reporting they were not allowed to provide oral testimony. This occurred at meetings on the Mark Twain National Forest, and in Region One. It appears that the Forest Service encouraged oral testimony in large cities where advocates of the roadless policy overwhelmed the meetings. Meanwhile, participants in the smaller, local meetings, where on would expect local opposition to the policy, where not allowed to voice opposition through oral testimony. The selection of different meeting formats that facilitate support for the policy in the urban centers, yet discourages or precludes oral testimony in the rural communities, casts a very disturbing pall over the process. If you have more people who want to speak than you can accommodate at any on meeting, then you should schedule additional meetings. In any case, you should not be limiting each speaker's time as strictly as you have been doing. CEQ clearly encourages Federal agencies to allow speakers sufficient time to comment, so long as they limit their comments to the issues to be covered in the EIS. The Forest Service Needs to Begin Again the Roadless Areas Rulemaking and EIS The scoping process the Forest Service has undertaken clearly is inconsistent with CEQ regulations and guidance. Many Senators' offices are being inundated with calls from irate constituents complaining about the lack of specific information on the impact of the proposal on the national forest or forests they use. These constituents also have complained about the entire public meeting process from inadequate notice of the meetings to an inability to speak at a public meeting they went out of their way to attend. The Forest Service appears to be ignoring every warning CEQ has given on how to do effective scoping. CEQ has noted the challenges of conducting scoping and programmatic proposals and warned "extra care should be taken in explaining the goals of the proposal and in making the information available well in advance of any meetings." CEQ Scoping Memorandum at III.C.4. The scoping process is replete with what we believe are fatal flaws. To remedy these fatal flaws, the entire EIS process must be started over and conducted from start to finish - in a manner consistent with the terms and spirit of the National Environmental Policy Act. This would include allowing all who want to participate to do so - not just those who are interested in traveling 100 or more miles to attend a meeting at which they discover there will be little chance of getting to speak and, if they are allowed to speak, it only will be for a minute or two. As CEQ has noted: NEPA provides agencies an extraordinary opportunity to respond to citizen needs and build trust in surrounding communities. Agencies that are responsive exceed legal requirements and involve communities early and often in the NEPA process, study the issues they have been asked to study, and incorporate citizens' comments and concerns." NEPA Effectiveness Study at 17. We believe it is critical, given the significance of the roadless areas rulemaking, that the public has confidence in the process - from the start. Mike, given the current approach and scoping process you have chosen to undertake, we are gravely concerned that you are placing the reputation of the United States Forest Service at a considerable risk. We urge you to step back and rethink the process upon which you have embarked, and to conform with the terms, and spirit, of CEQ regulations and guidance. Sincerely,
Bob Smith Frank H. Murkowski |