NWMA USFS Roadless Rule Draft Comments

 (1. Address block & salutation)

 (2. Opening boilerplate follows below)

The Northwest Mining Association (NWMA) is a 105-year-old, non-profit, non-partisan trade association based in Spokane, Washington with a membership base of 2,500.  NWMA’s purpose is to support and advance the mineral resource and related industries.  We do this by both representing and informing our members on technical, legislative and regulatory issues, and by disseminating educational materials related to mining.  NWMA is committed to fostering sustainable economic opportunities and promoting environmentally responsible mining.

NWMA members reside in 42 states and are actively involved in exploration and mining operations on U. S. Forest Service (USFS) administered lands, especially in the West.  Our diverse membership includes every facet of the mining industry including geology, exploration, mining, engineering, equipment manufacturing, technical services, and sales of equipment and supplies.  NWMA’s broad membership represents a true cross-section of the American mining community from small miners and exploration geologists to full-scale mining companies.  We boast the highest individual membership of any mining association in the U. S., with more than 90% of our members being small businesses or working for small businesses.

The public lands, including National Forest Service lands, provide a major source of domestic mineral production, and allow the U.S. to be less dependent on uncertain foreign sources of raw materials.  Mining on federal lands provides the nation’s highest-paid, non-supervisory wage jobs.  These jobs are one of the cornerstones of western rural economies and are the foundation for the creation of much non-mining service and support businesses found on or near federal lands in the West.

Mining on these federal lands provides substantial local and state tax revenues for infrastructure and services, as well as federal tax revenues.  This is because development of fuel and non-fuel minerals creates new wealth, which is distributed throughout the U.S. economy and society. 

(3. Insert: Revamped NWMA oral testimony as “summary comment statement”)

(4. Insert: Revamped mining industry testimony complied by National Mining Association)

(5. Begin: Reg Flex discussion as follows below)

I.       The Proposed Rule on Roadless Areas Conservation Must be Considered in Context with Other Recent and Concurrent Rulemaking Initiatives

In recent months, President Clinton and the USFS have announced numerous major rulemaking initiatives and large-scale planned amendments, in addition to the Proposed Rule on Roadless Areas.  As touched upon earlier in this set of comments, these include efforts to revise forest planning regulations, the development of a national road management policy, a new policy on watershed approaches to land management, together with regional planning efforts for the Interior Columbia Basin and the Sierra Nevadas.  Each one of these new initiatives is, in itself, damaging to small businesses and the economic health of rural communities.  Taken together, the impact is devastating and will result in the demise of numerous small businesses and untold hardships on rural, resource-dependent communities.

It is our position that these rulemakings are merely subparts of a single, major federal action led by the USFS.  Our view is strongly supported by the unprecedented degree of linkage and overlap among the various proposals.  Ironically, Mike Dombeck, Chief of the Forest Service, shares our view.  In a letter dated June 30, 2000 to USFS employees, he stated, “Both the roads and roadless proposals dovetail with the proposed planning rules …,” and, “These proposals and policies are reflected in our Strategic Plan and flow directly from the Forest Service Natural Resource Agenda.”  (This letter is attached to this testimony as Exhibit 1).

Thus, It is our contention that the USFS has purposely divided this very significant action into several parts to avoid its legal responsibilities under the National Environmental Policy Act (NEPA) and the Regulatory Flexibility Act (RFA)/Small Business Regulatory Enforcement Fairness Act (SBREFA).  By separating what is, de facto, a single action into subparts and then refusing to properly document the resultant cumulative impacts in an adequately prepared Draft Environmental Impact Statement (DEIS), the USFS has made it impossible for the public to provide meaningful comments on either the overall proposal or any portion thereof.  If the USFS proceeds to take final action under any of the referenced proposals without analyzing adequately the impacts on small entities, NWMA is prepared to challenge the final rule in court.

Throughout the Initial Regulatory Flexibility Analysis  (IRFA) for the Proposed Rule, the Cost-Benefit Analysis and the Draft Environmental Impact Statement, references are made to the other recent or concurrent rulemaking initiatives described above.  Again, the USFS is acknowledging the inter-relation of these initiatives and their cumulative impact. 

II.    The Regulatory Flexibility Act Applies to the Proposed Rule

It is interesting to note that in each of the rulemaking initiatives mentioned above, the USFS has taken the position that either the RFA does not apply “Because the proposed rule does not directly regulate small entities,” or that the Forest Service is engaged in planning – not regulating, or that the proposed rule will not have a significant economic impact on a substantial number of small entities.   It appears that the USFS has spent its time thinking of reasons why they do not have to comply with the RFA rather than honestly analyzing the impacts of their proposed rules on small entities.  This very attitude raises serious questions about the USFS’s ability, or desire, to make a good-faith effort to inform the public about potential adverse impacts on small entities.  It also is apparent from examining the IRFA that the USFS made little or no effort to identify less harmful alternatives.

The USFS either does not understand the requirements of the RFA and SBREFA, or is consciously ignoring those requirements.  This is not surprising.  The original RFA exempted an agency from these requirements if the agency certified that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.  Note that this was the exception, not the rule.  However, Congress found that many agencies simply ignored the RFA by relying on the certification of “no significant economic impact” in order to avoid a full regulatory flexibility analysis.   Since agency compliance with the RFA was not judicially reviewable, agencies could not be held accountable for their non-compliance with the statute. 

As a result, recognizing widespread agency indifference, Congress amended the RFA by enacting SBREFA in 1996.  SBREFA requires agencies to provide a statement of the factual basis for a certification of “no significant economic impact.”  It is clear that Congress intended that the factual basis requirement would provide a record upon which a court may review the agency’s actions.  Thus, an analysis is required in order to provide a factual basis.  The judicial review provisions of the RFA now include review by a court of the certification by the head of an agency that the final rule will not, if promulgated, have a significant impact on a substantial number of small entities.  SBREFA also provides for judicial review of an agency’s final decision under the RFA.  

The RFA requires federal agencies to prepare and publish a regulatory flexibility analysis “whenever an agency is required by Section 553 of this title, or any other law, to publish general notice of proposed rulemaking for any proposed rule, ….”  As mentioned above, the only exception the RFA provides to this general rule is where an agency head certifies that a proposed rule will not have a significant economic impact on a substantial number of small entities, and provides a factual basis supporting it.  The RFA also requires a final regulatory flexibility analysis when issuing a final rule for each rule that will have a significant economic impact on a substantial number of small entities. 

Thus, the “trigger” mandating an initial regulatory flexibility analysis is not, as the USFS asserts, whether the proposed rule directly regulates small entities.  Rather, the question becomes: is it a federal rule that requires public comment under the Administrative Procedure Act, Section 553 or any other provision of law, that will have a significant economic impact on a substantial number of small entities?  The answer in this case is a resounding yes.

Throughout the IRFA and Cost-Benefit Analysis, the Forest Service asserts that it does not directly regulate small entities.   In fact, the Forest Service argues that an IRFA is not required in the instant case “Because the proposed rule does not directly regulate small entities….”  Such an assertion is patently absurd.  If the Forest Service does not regulate small entities, then why are so many of our members experiencing delays in obtaining permits to mine, approval of plans of operations, or amendments to plans of operations?  Since the Forest Service is convinced that it does not regulate small entities, does that mean we can tell our members that they no longer have to comply with the 228A regulations that regulate the surface impact of hardrock mining operations on national forest lands?  Many would welcome this news, but we don’t think the USFS is ready to relinquish their regulatory role.  We bring this up to emphasize that the Forest Service has not made a good-faith effort to comply with the RFA. 

Furthermore, the assertion that the proposed rule does not directly regulate small entities also flies in the face of the “plain language” of the proposed rule.  By its very terms, the proposed rule applies to everyone, including small entities.  As discussed later in our testimony, a prohibition on road building is, in fact, a prohibition on mining.  The proposed rule directly regulates small entities by imposing new standards, and otherwise attempting to limit valid existing rights under the General Mining Law and authorized activities under relevant forest plans.  Prohibiting road building on 43 million acres of National Forest lands, and hence prohibiting mining, is a very direct regulatory impact, particularly if your business is exploring for minerals and mining on National Forest lands.  It strains the USFS’s credibility to say that a rule of this nature will have no direct regulatory impact.  The fact that the interim rule and the Notice of Intent to Prepare an Environmental Impact Statement have generated more than 119,000 comments belies the argument that the Proposed Rule does not regulate or affect small entities.

The Administrative Procedure Act (APA) defines “rule” as an “agency statement of general … applicability and future effect designed to implement, interpret or prescribe law or policy.”  

5 USC § 551(4).  A review of the Proposed Rule shows clearly that it meets the APA definition of a “rule” quoted above.  It prescribes the manner or the policy of the USFS for managing all National Forest lands for the future.  The various management prescriptions and land use designations (roadless, etc.), when read together, set out what type of activities may or may not occur in various sections of our National Forests.   The Proposed Rule is clearly of general applicability for it affects many parties, both private and government, concerning the use of National Forest lands, has a future effect, and purports to implement, interpret and prescribe law and USFS policy.

In 1997, the USFS argued that an amendment to the Tongass National Forest Land and Resource Management Plan was not a “rule” that required an analysis under SBREFA.  In a letter dated July 3, 1997 (attached as Exhibit 2), the Comptroller General reached the conclusion that Land Resource Management Plans and amendments to those plans were “rules” under SBREFA because it prescribed the manner of the policy for managing the Tongass National Forest for the next 10-15 years, set out what type of activities may occur in various sections of the forest, was of general applicability, future effect, and that it implemented, interpreted and prescribed law and policy.

Thus, despite the USFS’s assertions to the contrary, there is no question that the Proposed Rule meets this standard and that the USFS must prepare an initial regulatory flexibility analysis and a final regulatory flexibility analysis.

III. The USFS has no statutory authority to prevent access for mineral exploration and development

While the Proposed Rule gives “lip service” to the Mining Law’s statutory right of access, it is clear that the USFS does not acknowledge that this right could result in the building of new roads in “roadless” areas that do not currently contain operating mines or staked claims.  The proposed rule threatens to eliminate the possibility of any road construction or repair, materially interfering with a miner’s statutory right to maintain and develop reasonable access necessary for current or future mining operations.

The USFS Organic Act (the Organic Administration Act of 1897) does not provide the agency with the authority to deny access of qualified persons to enter public lands open to the General Mining Law for exploration and development of locatable minerals.  In the pertinent section, the Act provides that: nor shall anything herein prohibit any person from entering upon such national forests for all proper and lawful purposes, including that of prospecting, locating and developing the mineral resources thereof.  Such persons must comply with the rules and regulations covering such national forests.  16 U.S.C. § 478. 

The General Mining Law is, in effect, an invitation by the government for qualified persons to enter the open and unappropriated public lands – including National Forests – for the purpose of exploration and development of the mineral resources.  There is no requirement in the Mining Law that a mining claim must be located prior to enjoyment of that invitation.  Except where the USFS has legally withdrawn the lands pursuant to the limited withdrawal authority granted by the Federal Land Policy and Management Act (FLPMA), these lands remain open to mineral entry. 

Modern methods of exploration require that a geologist have motor vehicle access to potentially mineralized areas for purposes of geological, geochemical and geophysical testing.  Once a mineral target has been identified, mechanized drilling becomes necessary.  The USFS has provided for mineral entry and drilling in Wilderness Areas, Wilderness Study Areas and Roadless Areas in the past, by approving limited road construction or improvements which included reclamation stipulations.  Many of these projects have been completed and successfully reclaimed by NWMA members.   In fact, one of our members supervised a drilling project in a designated Wilderness Area in the 1970’s.  Thus, the USFS has the experience and the means to provide for limited road construction in roadless areas while avoiding significant environmental impacts.   The RFA requires that the USFS consider such an alternative and analyze adequately the impact on small entities.

The Proposed Rule is completely silent on how the USFS will preserve access for exploration and mineral development activities within the roadless areas affected.  Without a clear and detailed approach to providing reasonable access to explore for minerals or to maintain mining claims, the Proposed Rule strongly implies that locatable minerals cannot be explored for or developed in inventoried roadless areas by current methods.  This was confirmed recently when USFS staff indicated to several of our members that access to their mineral project development programs in the Challis National Forest of Idaho would be delayed for the duration of the Interim Rule until ‘clarification’ can be provided by the final rule.  Such confusion about how the USFS should treat entry pursuant to the General Mining Law demands immediate attention.  Such events only serve to heighten NWMA concerns in regard to the Proposed Rule and its impacts on small businesses and resource-dependent rural communities.  In light of such USFS attitudes, designated roadless areas under the final rule will take on the functional equivalent of wilderness withdrawals without congressional oversight or involvement.

IV.   The Initial Regulatory Flexibility Analysis for the Proposed Rule on Roadless Area Conservation Fails to Comply with the Requirements of the Regulatory Flexibility Act, as amended by the Small Business Regulatory Enforcement Fairness Act

NWMA has special expertise in the area of small business and the requirements of the Regulatory Flexibility Act (RFA) and the Small Business Regulatory and Enforcement Fairness Act (SBREFA).  In addition to more than 90% of our members being small businesses or working for small businesses, the Association became very familiar with the requirements of the RFA/SBREFA when it successfully sued Secretary of Interior Bruce Babbitt and the BLM in 1997 to invalidate illegally promulgated bonding regulations.  We became well schooled in the provisions and requirements of the two acts and studied the legislative history of both the RFA and SBREFA.  Thus, we have particular knowledge with respect to the requirements of the law and their application to the Proposed Rule.  See Northwest Mining Association v. Babbitt, et al, 5 F. Supp. 2d 9 (D.D.C. 1998).

The 43 million acres being addressed by the Proposed Rule contain numerous small entities that will be affected. With few exceptions, virtually every county, city, township, village, school district or special district within, or adjacent to, the inventoried roadless areas qualify as a small governmental jurisdiction.  Furthermore, it is estimated that more than 90% of all of the businesses (including mining companies) affected by the Proposed Rule are “small businesses” as that term is defined by the Small Business Act (500 employees or less).  Given the USFS’s own admissions that several significant, access-related, beneficial uses of the lands are affected by the Proposed Rule, it is impossible for the Proposed Rule to not affect a significant and substantial number of small entities in or adjacent to roadless areas. 

Mineral activities on the National Forest System produce, by the USFS’s own accounts, between $2 billion and $4 billion annually.  Analyses by USFS personnel also indicate that exploration for, and production of, minerals on National Forest lands directly and indirectly employ over 100,000 people.  Clearly, promulgation of a rule that effectively reduces or eliminates road access to 43 million acres of the National Forest System, an area the size of the State of Florida, would have a dramatic negative effect on both minerals exploration and production as well as employment, small business viability, and rural communities. 

1. Impacts on Small Business Engaged in Exploration and Mining

According to statistics provided by the Small Business Administration, 98% of all metal/non-metal mining companies, and 97% of all coal mining companies meet the SBA definition of small business.  These small businesses directly employ more than 300,000 men and women.  Thus, there can be no dispute that many small entities currently mine on National Forest lands, and intend to do so in the future.

The IRFA, dated April 26, 2000, discusses the effects of the Proposed Rule on the energy and non-energy mineral sectors on pages 20 through 23.  On page 23, the IRFA states,

“A final rule, as proposed, would not deny reasonable access to holders of valid claims, or the option to pursue further development.  The main effect of the proposed rule is the potential for increasing the cost of exploration and development in the future. 

Although the prohibition on road construction and re-construction would potentially increase exploration costs, little impact is expected on development of locatable minerals.  Both exploration and development options could be affected, but reasonable access would be provided according to applicable statutes.” 

The preceding section is but one of the many egregious examples of the USFS refusal to acknowledge the devastating economic ramifications of this, and the other related rulemakings.   The effect on exploration and development of locatable minerals would amount to a prohibition, regardless of how the USFS defines “reasonable access,” because road building would not be allowed.

As discussed above, the General Mining Law guarantees access to the open and unappropriated federal lands for locating mining claims and exploring and developing those mining claims into a producing mine.  Having a valid claim, per se, is irrelevant to this right of access.  The USFS states that reasonable access would be provided according to applicable statutes, but nowhere do they define or describe “reasonable access.”  This is of great concern to our membership because, quite frankly, it takes a road to build a mine.  Does the Forest Service intend to limit access to helicopters, or to walking?  While walking and helicopter access may be appropriate in some areas for early reconnaissance exploration, it is clearly inappropriate to deny roaded access for trucks and other equipment required to develop a mineral deposit into a producing mine.  Furthermore, helicopter access is cost prohibitive for most exploration geologists and small mining companies.  The result will be very serious, and wholly adverse, economic consequences for these people, as well as their contractors and suppliers.

The Proposed Rule is so vague with respect to providing access to non-discretionary mineral activities that it is impossible to determine what the USFS considers “reasonable access.”  The Proposed Rule, DEIS, IRFA and Cost-Benefit Analysis taken as a whole indicate that the purpose of the Proposed Rule is to prohibit road construction and reconstruction in roadless areas.   The Proposed Rule sends a strong message that the USFS will do everything it can to deny access for mineral exploration and development.   This message directly contradicts the assertion that “valid existing rights” will be respected.

Furthermore, even though the Proposed Rule and supporting documentation exceeds 600 pages, there is a dearth of useful information describing the areas on which road construction and reconstruction will be prohibited.  Repeated attempts by NWMA and its members to obtain lists and readable maps of areas where the proposal would apply have been unsuccessful.  We are not the only ones experiencing this situation.  Since the Forest Service apparently does not know how much area will be affected, or where those areas are, it is impossible for anyone to reasonably determine the full impact of the proposal on resource development. 

On pages 26 through 30 of the Cost-Benefit Analysis for the Proposed Rule, the USFS Forest Service has attempted to estimate the economic effects of the Proposed Rule on energy and non-energy minerals.  On page 27 the Forest Service states:

“There is not enough information available to quantitatively estimate the degree to which jobs, income and U.S. Treasury receipts and payments to states would be affected by the proposed rule.  Most likely, further reductions would occur.” 

Perhaps one of the reasons there is “not enough information available” is that the Forest Service cannot identify the areas impacted by the proposed rule.  Furthermore, it is the obligation of the USFS, as the proponent of the Proposed Rule, to gather the applicable data necessary to analyze the impacts on small entities.  And, the information is out there, if one cares enough to look.

For example, the USFS did, amazingly, attempt to estimate the effect of the proposed rule on the future development of resources that have yet to be discovered.  Utilizing U.S. Geological Survey (USGS) data, USGS maps of undiscovered resources were overlaid with the location maps of inventoried roadless areas.  The Forest Service used the quantity and value of undiscovered resources at the 50^th percentile, meaning there was an equal chance that the actual quantity could be higher or lower.  On page 28 of the Cost-Benefit Analysis, the Forest Service published a table estimating the undiscovered resources of gold, silver, copper, lead and zinc.  The estimated gross value totals approximately $400 billion.  The Forest Service also estimated the gross value of measured and indicated coal resources in the Powder River, Williston, Greater Green River and Hanna-Carbon basins of Montana, North Dakota and Wyoming to be in excess of $6.6 trillion.   Using these estimates, more than $7 trillion of coal and metal resources will be placed off limits by the Proposed Rule.  Obviously, this is a significant economic impact and these figures do not include all of the inventoried roadless areas affected by this proposal and do not include sand, gravel, crushed stone, dimension stone, phosphate, pumice or quartz crystal minerals.

The USFS then attempts to downplay the adverse economic effect of the Proposed Rule on future mineral development by citing low current prices and “current limited industry interest in leasable development.”  Commodity prices are cyclical and it is certain that values will again reach levels which will make exploration and development of these resources feasible and profitable.

While the Forest Service alleges that there is current limited industry interest in leasable development, the facts belie this statement.  Currently, applications for coal leases in the Powder River Basin that have been filed with the BLM and are pending sales totaled nearly 2 billion tons of mineable reserves.  The pending lease reserves represent 142% of the coal lease sales that occurred for the five years of very active coal leasing from April 1995 to June 2000.  This is the strongest interest in coal leasing in the region since the initial establishment of extensive mining operations in the late 1970s and early 1980s.  The pending lease reserves represent a volume equivalent to 81% of the total federal reserves of coal leased in the Power River Basin from 1991 through mid-2000.   All of this points to an increased, not a diminished interest in leasable development.

This brings us to another major failing of the IRFA:  It fails to consider mineral exploration and mining as distinctly different sectors of the mining industry.  Among the most glaring of the omissions is the absence of any meaningful discussion of probable economic impacts to prospectors, exploration geologists, grassroots exploration companies, junior exploration companies, and industrial mineral operations in either the IRFA or the Draft Environmental Impact Statement (DEIS).  While the DEIS touched upon these mineral industry sectors, its treatment was far from adequate. 

In addition, beyond the incomplete review of direct effects, no mention is made of direct, indirect or induced impacts on small governmental entities, regional or local economies.   For example, the lost business opportunities for motels, cafes, drugstores, hardware stores and other local businesses were not examined in the IRFA.

In addition, as previously mentioned above, closely-allied industry sectors that are expected to suffer adverse economic consequences, should the Proposed Rule be finalized, are virtually ignored for the most trivial of reasons.  These sectors include major suppliers as well as the contract personnel employed by all sectors of the mining industry, such as exploration geologists, drillers, and geophysical specialists.  Some of these individuals also own mining claims and pursue exploration activities on their own behalf with the hope of selling or leasing their claims to mining companies.  These individuals comprise a significant portion of the exploration industry sector.  The IRFA fails to quantify the impact of the Proposed Rule on any of these sectors of the mining industry.

It must be understood that exploration is the research and development arm of the mining industry, and it is critically important to the long-term future of domestic mining.  A regulatory climate that restricts exploration will ultimately cause a significant downturn in future mineral production.  Thus, the adverse economic impacts associated with the Proposed Rule have been substantially underestimated. 

While the proposal would make the production of some minerals simply uneconomic, further development of most leasable minerals, including coal, potash and phosphates would essentially be disallowed on over 43 million acres of Forest Service lands.  When combined with 43 million acres of Forest Service Wilderness areas already designated roadless, this proposal would essentially disallow coal, potash and phosphate production on over 85 million acres of Forest Service administered lands.  The proposition that one can explore for minerals and develop a mine without roads for ingress and egress defies common sense.  A prohibition on road building is a prohibition on mining.

2. Impacts To Local Governments

As mentioned earlier, both the DEIS and the IRFA are devoid of any attempt to determine the effect of this rulemaking on state and local governments (and the schools and children in those jurisdictions) that receive 50% of the federal royalties received from the mining of federally-owned minerals leased from the Forest Service.

Mining is the leading employer in many rural western areas, which would otherwise have few or no other major sources of employment.  Mining companies contribute substantially to the economic well being of their communities, with average yearly wages of approximately $49,995 – the highest wage of any industry segment of American workers.  Mining’s average annual wages exceed by a wide margin the average of approximately $30,053 for all U.S. industries.  Furthermore, mining companies are important sources of revenue for the local communities in which they operate, in terms of employment, purchasing related directly and indirectly to mining, and payments of federal, state and local taxes.  The economic impact of the substantial decrease in the contributions to state and local communities associated with mining has not been considered by the Forest Service.   No mitigation measures are identified or discussed for either the proposed action or the alternatives.  The DEIS and the IRFA vaguely discuss impacts to mining-dependent communities from the preferred alternative.  Those impacts might be mitigated by a broader exemption for leasing activities, but the issue is not addressed.

3. Other Deficiencies

The IRFA is deficient in a number of other respects.  The RFA requires “a succinct statement of the objectives of, and legal basis for, the proposed action; a description of and, where feasible, an estimate of the number of small entities to which the proposed action will apply.”  The IRFA is devoid of any attempt to satisfy either of these statutory requirements.  The IRFA does not contain a statement of the legal basis for the proposed action.  The reason is simple:   the agency lacks statutory authority for this rulemaking and is fully aware of this fact.  Again quoting from Chief Dombeck’s June 30 letter, “We have changed the tenor of the debate.  No longer is our agenda dictated by litigation, lawsuits, and controversial appropriations riders” (emphasis added).  Apparently the USFS is not going to let court rulings or laws passed by Congress stand in their way as they attempt to turn our National Forest lands into museum dioramas without human visitors. 

If Chief Dombeck truly wants to avoid having his agenda dictated by litigation, then he needs to ensure that his agency complies with the RFA, NEPA, APA and the Federal Advisory Committee Act (FACA) when it engages in rulemaking.  The USFS’s failure to comply with these laws virtually guarantees that there will be litigation on the Proposed Rule.

Despite the USFS’ attitude on such matters, the RFA further requires that each IRFA contain a description of any significant alternatives to the Proposed Rule which accomplish the stated objectives of applicable statutes and which minimize any significant economic impact of the Proposed Rule on small entities.   Again, the IRFA prepared by the USFS is devoid of any attempt to satisfy this requirement.

The alternatives discussed in the preamble are not “alternatives that minimize any significant economic impact of the rule on small entities.”  Compliance with the RFA is not achieved by consideration of alternatives that do not meet the requirements of the Act.  Accordingly, when the USFS considers alternatives that are more burdensome to small businesses, they are not valid for RFA purposes.  In addition, the USFS did not consider several other obvious alternatives that would accomplish the objectives of the statute but would have protected small entities.   These are temporary roads; well-maintained roads; privately maintained roads; and recognized RS 2477 roads.

One of the problems cited by the agency as a justification for this rule is the fact that the USFS does not have adequate resources to properly maintain existing roads.  This problem also can be addressed by considering an alternative of requesting additional funding for roads from Congress, or allowing private road maintenance by the private sector which use them for resource development.  One of these alternatives were considered by the agency.

The USFS could be crafted so that temporary (non-paved) roads may be permitted on an as-needed basis.  Many such roads could then be allowed to reclaim naturally when the small businesses leave them unused for extended periods, or the rule could require affirmative reclamation by the user to speed up the process of revegetation in environmentally sensitive areas.  In either case, such an alternative should be considered and published for public comment.

Is the USFS avoiding the RFA mandated economic impact analysis because it knows that the impact to small businesses and rural communities will be large and devastating?  They have used an all-or-nothing approach in developing their roadless proposal, when experience and the laws written by Congress, and just plain common sense, dictate a middle ground.

One purpose of the RFA is to make sure reasonable alternatives are considered that avoid economic dislocation to small entities, while still accomplishing the stated regulatory goal.   The technical and management capabilities exist to provide for continued judicious use of both new and existing roads on those tracts of land that remain largely unroaded.  Middle-ground alternatives must be considered, and their economic impacts evaluated and compared to what amounts to a single alternative being proposed by the USFS.  This nation has the means to avoid adverse environmental impacts to the land without essentially having to stop all resource-based economic activities.  Not only is the absence of other reasonable alternatives inconsistent with RFA, but NEPA requirements as well.

Improvements in managing the Forest Service road system, including how to logically determine where and how to build new roads, appear to be needed.  But just saying “no” to all new roads is poor government policy and defies logic; unless, as we believe, the true purpose of USFS leadership is to expand the Wilderness system without the consent of Congress.  The Proposed Rule is just the USFS’ version of “instant national monuments” that is becoming so popular over at Interior.

Governors Marc Racicot of Montana and John Kitzhaber of Oregon recently stated that they believe the federal government has a special responsibility, both moral and legal, to rural communities of the American West.  They observed that the policies of the federal government for nearly 140 years encouraged development of this nation’s natural resources.  As a result, small towns sprang up and people put down deep roots that allowed them to weather market fluctuations and whims of nature.  The one thing they thought they could depend on was continued access to the National Forests and other public lands that are the source of their livelihoods.  Now, the federal government is poised to put an end to that possibility.

The Proposed Rule, coupled with the roads the USFS is proposing to close under related initiatives, will ensure that there is no road to a viable economic future for the hundreds of small rural communities in or near our National Forests.  If the federal government wishes to turn its forests into parks, then Governors Racicot and Kitzhaber believe that the people paying the economic and personal price for this policy “about-face” should be made whole.  Are we, as a nation, prepared to fairly compensate these communities for pulling the economic rug out from under them?  Or, are we going to just turn our back on them as the USFS wishes to do?  We believe that the RFA and NEPA require that the USFS include the obligation to compensate these rural communities in the IRFA and Cost-Benefit Analysis.

Summary and Conclusions

Our comments make abundantly clear that the Forest Service proposal for Roadless Area Conservation is fatally flawed.  The proposal is based on a false premise, the potential impacts are poorly or incompletely analyzed and it fails to satisfy the legal requirements of a host of statutes passed by the Congress, as well as the Forest Services’ own regulations. 

In particular, neither the Cost-Benefit Analysis nor the Initial Regulatory Flexibility Analysis meet the letter or intent of the RFA and SBRFA.  While much of the IRFA is couched in the proper terms and tone expected of an objective analysis, a knowledgeable reviewer quickly perceives that the document is seriously flawed in many respects.  The overall credibility of IRFA is seriously diminished by the notable absence of hard data or facts substantiating the many assumptions used throughout this and the other related documents, and blatant omissions. 

The USFS has failed to analyze adequately the impact of the Proposed Rule on small entities and has not fairly considered regulatory alternatives that would minimize significant economic impacts to small entities.  As the U.S. District court in Florida has keenly observed, agencies must be mindful that even commendable goals like preservation do not excuse violations of the RFA.  “Although the preservation of Atlantic shark species is a benevolent, laudatory goal, conservation does not justify government lawlessness.”  (emphasis added) Southern Offshore Fishing Association v. Daley, 55F. Supp. 2d 1336 (D. FL 1999).

The USFS must re-propose the rule for comment after preparing an IRFA that meets the statutory requirements of the RFA.  Failure to do so will subject the rule to reversal upon judicial review.   Therefore, NWMA urges the Forest Service to seriously reconsider its approach to this and related rulemakings.  We recommend that the agency take the time to engage in a truly open and collaborative process, as espoused in so many of its recent planning documents.  As NWMA has stated repeatedly throughout our comments, reasonable alternatives to the current proposal are available that could afford additional assurances that unroaded areas will remain ecologically sound, yet avoid all adverse economic impacts to the mining community, other natural resource providers, and rural communities dependent on a continued supply of raw materials from the National Forest System to survive. 

Sincerely,