Administrative rulemaking and public lands conflict: The forest service's roadless rule

Natural Resources Journal

Volumn 44, Issue 3, 2004, Pages 687-742

  Nie, Martin ^a  

^a UNIVERSITY OF MONTANA   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ADMINISTRATION; COMMON LAND; FOREST MANAGEMENT; LAND MANAGEMENT; LEGISLATION;

NORTH AMERICA; UNITED STATES; WESTERN HEMISPHERE; WORLD;

EID: 13644281820     PISSN: 00280739     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (326)

1. Nat'l Park Serv., 1 Winter Use Plans: Final Supplemental Environmental Impact Statement (2003), available at http://www.nps.gov/yell/ technical/planning/winteruse/plan/index.htm (last visited May 28, 2004).
2. U.S.C.§§ 473-482,551(2000).
3. Alan G. McQuillan, Is National Forest Planning Incompatible with a Land Ethic?, 88 J. Forestry 31, 33 (May 1990) (discussing the contested purposes of the forest reserves and how preservationist John Muir would have emphasized the "improve and protect the forest" provision, while FS Chief Gifford Pinchot would more likely have stressed the "furnish a continuous supply of timber" provision).
4. U.S.C. § 528 (2000).
5. I b i d.
6. U.S.C.§ 531(a)(2000).
7. See generally Michael C. Blumm, Public Choice Theory and Public Lands: Why "Multiple Use" Failed, 18 Harv. Envtl. L. Rev. 405, 407 (1994) ("Since multiple use is founded upon a standardless delegation of authority to managers of public lands and waters, congressional endorsement of multiple use has created the archetypal 'special interest' legislation.").
8. U.S.C. § 531(b) (2000).
9. U.S.C. § 529 (2000).
10. A Society of American Foresters review, for example, recommends that "Congress should clearly articulate in new legislation that the concept of multiple use is not necessarily appropriate on every management unit, but may be better applied in the aggregate across the national forests and public lands." In Forest of Discord: Options for Governing Our National Forests and Federal Public Lands 54-55 (Donald W. Floyd ed., 2002) [hereinafter Forest of Discord].
11. David A. Clary, Timber and the Forest Service xii (1986) (providing a critical history of the FS and its unique bureaucratic timber-oriented culture as "a case of public service wherein the servant believed firmly that it knew better than the public what the public really wanted").
12. Sierra Club v. Hardin, 325 F. Supp. 99, 122-24 (D. Ala. 1971).
13. See generally Paul W. Hirt, A Conspiracy of Optimism: Management of the National Forests Since World War II (1994).
14. The "Bolle Report," a major milestone in FS history and requested by Senator Lee Metcalf of Montana, aptly summarized the situation: "Multiple use management, in fact, does not exist as the governing principle on the Bitterroot National Forest." See A University View of the Forest Service, A Select Committee of the University of Montana Presents Its Report on the Bitterroot National Forest, Cong. Rec. 1 (daily ed. Nov. 18, 1970) (on file with author).
15. 16 U.S.C. §§ 1600-1614 (1976). For an overview, Michael J. Gippert & Vincent L. DeWitte, The Nature of Land and Resource Management Planning Under the National Forest Management Act, 3 Envtl. L. 149 (1996).
16. 16 U.S.C, § 1604(g)(3)(b) (1976).
17. R.W. Behan, The RPA/NFMA: Solution to a Nonexistent Problem, 88 J. Forestry 20,22 (1990).
18. The famous Monongahela decision by the Fourth Circuit ruled that the 1897 Organic Act effectively prohibited clearcutting in national forests, and this eventually led to the passage of the NFMA. W. Va. Div. of the Izaak Walton League of Am., Inc. v. Butz, 522 F.2d 945 (4th Cir. 1975). See Charles F. Wilkinson & H. Michael Anderson, Land and Resource Planning in the National Forests 41-42, 73-74, 138, 154-55 (1987).
19. Richard Behan, Plundered Promise: Capitalism, Politics, and the Fate of the Federal Lands (2001).
20. Federico Cheever, Four Failed Forest Standards: What We Can Learn from the History of the National Forest Management Act's Substantive Timber Management Provisions, 77 Or. L. Rev. 601, 605 (1998).
21. Id. at 606.
22. Michael J. Mortimer, The Delegation of Law-Making Authority to the United States Forest Service: Implications in the Struggle for National Forest Management, 54 Admin. L. Rev. 907, 912 (2002).
23. Id. at 910.
24. Jack Tuholske & Beth Brennan, The National Forest Management Act: Judicial Interpretation of a Substantive Environmental Statute, 15 Pub. Land L. Rev. 53 (1994).
25. Id. at 134.
26. Charles F. Wilkinson, The National Forest Management Act: The Twenty Years Behind, The Twenty Years Ahead, 68 U. Colo. L. Rev. 659, 677-78 (1997).
27. Arnold W. Bolle, The Bitterroot Revisited: "A University [Re] View of the Forest Service," in American Forests: Nature, Culture and Politics 163 (Char Miller ed., 1997) (arguing that NFMA is not the problem, rather the problem is the "business as usual" response by the FS to NFMA).
28. The Wilderness Society, for example, interprets NFMA as Congress recognizing "the shortcomings of MUSYA's broad [grant of] discretion and [seeking] to insure that timber production would not take priority over other uses and resources." Quoted in Elizabeth Beaver et al., Seeing the Forest Service for the Trees: A Survey of Proposals For Changing National Forest Policy 13 (U. Colo. Nat. Resources L. Ctr. 2000), available at http://www.colorado.edu/law/ centers/nrlc/publications/Forestry-Reforms-Report.pdf (last visited June 5, 2004). But the Society of American Foresters contends that neither the 1974 Forest and Rangeland Renewable Resources Act nor NFMA changed management philosophy in a significant way." Id.
29. See generally Wilkinson & Anderson, supra note 18.
30. A Bill to Amend the Forest and Rangeland Resources Planning Act of 1974 and the Act of June 4, 1897, Pub. L. No. 94-588, 90 Stat. 2949 (1976).
31. National Forest Timber Management Reform Act, S. 2926, 94th Cong. 2d Sess. §§ 2216-2218 (1976). Wilkinson & Anderson, supra note 18, at 42.
32. Dennis C. Lemaster, Decade of Change: The Remaking of Forest Service Statutory Authority During The 1970s (1984).
33. National Forest Timber Management Reform Act, S. 2926, 94th Cong. 2d Sess. §§ 2216-2218 (1976).
34. Wilkinson & Anderson, supra note 18, at 292-93.
35. The provision requires the FS to "provide for diversity of plant and animal communities based on the suitability and capability of the specific land area in order to meet overall multiple-use objectives." 16 U.S.C. § 1604(g)(3)(b) (2000).
36. FS Planning Regulations on fish and wildlife resources state that habitat "shall be managed to maintain viable populations" of existing species. 36 C.F.R. § 219.19 (2002). See generally Michael A. Padilla, The Mouse That Roared: How the National Forest Management Act Diversity of Species Provision Is Changing Public Timber Harvesting, 15 UCLA J. Envtl. L. & Pol'y 113 (1996-1997).
37. Federico Cheever, The United States Forest Service and National Park Service: Paradoxical Mandates, Powerful Founders, and the Rise and Fall of Agency Discretion, 74 Denv. U. L. Rev. 625, 625-48 (1997).
38. See generally Char Miller, Gifford Pinchot and the Making of Modern Environmentalism (2001).
39. Hirt, supra note 13, at xxi.
40. See Forest of Discord, supra note 10, at xxi.
41. Id. at 50-51.
42. See generally U.S. Forest Serv., Forest Service Directives, available at http://www.fs.fed.us/im/directives/ (last visited June 5, 2004).
43. See U.S. Forest Serv., The Process Predicament: How Statutory, Regulatory, and Administrative Factors Affect National Forest Management (2002), available at http://www.fs.fed.us/projects/documents/ Process-Predicament.pdf (last visited June 5, 2004).
44. Conflicting Laws and Regulations: Gridlock on the National Forests: Hearing Before the Subcomm. on Forests and Forest Health of the House Comm, on Resources, 107th Cong. 5 (2001) (statement of Dale Bosworth, Chief, USDA Forest Service).
45. In an often-cited report, the General Accounting Office summarizes the decision-making problem facing the FS: Strengthening accountability for performance within the Forest Service and improving the efficiency and effectiveness of its decision-making is contingent on establishing long-term strategic goals that are based on clearly defined mission priorities. However, agreement does not exist on the agency's long-term strategic goals. This lack of agreement is the result of a more fundamental disagreement, both inside and outside the Forest Service, over which uses the agency is to emphasize under its broad multiple-use and sustained yield mandate and how best to ensure the long-term sustainability of these uses. Gen. Acct. Office, Forest Service Decision-Making: A Framework for Improving Performance, GAO/RCED-97-71, at 5 (Apr. 1997), available at http://www.gao.gov/archive/1997/rc97071.pdf (last visited June 5, 2004).
46. Paul S. Sutter, Driven Wild: How the Fight Against Automobiles Launched the Modern Wilderness Movement 3-11 (2002).
47. I b i d.
48. Id. at 3-7. The Wilderness Society was formed in 1934 and the group remains active on the roads issue. See The Wilderness Soc'y, National Forest Roadless Areas, at http:// www.wilderness.org/OurIssues/Roadless/ (last visited June 5,2004).
49. David G. Havlick, No Place Distant: Roads and Motorized Recreation on America's Public Lands 2 (2002).
50. USDA Forest Serv., 1 Forest Service Roadless Area Conservation: Final Environmental Impact Statement 3-21 (2000) [hereinafter Roadless FEIS], available at http://roadless.fs.fed.us/documents/feis/ (last visited June 5, 2004).
51. See id., 3 Roadless FEIS, Agency Responses to Public Comments.
52. I b i d.
53. The "Shovel Brigade" stemmed from closure of the South Canyon Road in Elko County, Nevada, an access route to the Jarbridge Wilderness Area and a popular campground. The FS decided not to repair the road in order to protect a threatened bull trout population, and this led to very symbolic protests in Elko County and northwestern Montana, and eventually to the resignation of Humboldt-Toiyabe National Forest Supervisor Gloria Flora. See Jon Christensen, Nevadans Drive Out Forest Supervisor, High Country News, Nov. 22, 1999, at 3.
54. See Craig W. Allin, The Politics of Wilderness Preservation 54-99 (1982).
55. John C. Hendee & Chad P. Dawson, Wilderness Management: Stewardship and Protection of Resources and Values 40 (3d ed. 2002).
56. Id. at 102-04.
57. See id. at 41
58. see also Sutter, supra note 45, at 252-55.
59. Hendee & Dawson, supra note 54, at 102-04.
60. Michael McCloskey, The Wilderness Act of 1964: Its Background and Meaning, 45 OR. L. Rev. 288 (1966).
61. 16 U.S.C. § 1131 (2000). For comprehensive history and coverage visit Wilderness.net, Wilderness Legislation, The Wilderness Act of 1964, at http://www.wilderness.net/index.cfm?fuse=NWPS&sec=legisact (last visited June 5, 2004).
62. 16 U.S.C. § 1132(b) (2000).
63. I b i d.
64. Similar to the pace of the roadless rulemaking process, some interest groups complained of the quick speed of the RARE process and argued that it was being unnecessarily rushed - but in this case conservationists were doing the complaining.
65. The final RARE II EIS (1979) called for wilderness designation of 624 areas totaling 15,008,838 acres (five million of these acres were on Alaska's Tongass National Forest), allocation to nonwilderness of 1981 areas totaling 36,151,558 acres, and further planning for 314 areas totaling 10,796,508 acres. Hendee & Dawson, supra note 54, at 136.
66. See H. Michael Anderson & Aliki Moncrief, America's Unprotected Wilderness, 76 Denv. U. L. Rev. 413, 419-22 (1999).
67. see also Hendee & Dawson, supra note 54, at 134-38.
68. California v. Bergland, 483 F. Supp. 465 (E.D. Cal. 1980), aff'd sub nom. California v. Block, 690 F.2d 753 (9th Cir. 1982).
69. Hendee & Dawson, supra note 54, at 138.
70. Allin C.W., supra note 53, at 160-66. A RARE III has not been conducted.
71. Ross W. Gorte, Wilderness Laws: Prohibited and Permitted Uses, Cong. Res. Serv., No. 98-848 ENR, Oct. 9, 1998, available at http://www.ncseonline.org/nle/crsreports/public/pub-3.cfm (last visited June 5, 2004).
72. See Michael P. Dombeck et al., From Conquest to Conservation: Our Public Lands Legacy 93-116 (2003) (reviewing the political-administrative history of the roadless rule).
73. The contradiction was not lost by the Ninth Circuit, which noted the "odd semantic twist" of including in "inventoried roadless areas" some areas with roads and found it "perhaps reminiscent of George Orwell's 'Newspeak,' the name of the artificial language used for official communications in George Orwell's novel Nineteen Eighty-Four, which is now often applied to corrupt English." Kootenai Tribe of Idaho v. Veneman, 313 F. 3d 1094, 1105 (9th Cir. 2002).
74. Special Areas, Roadless Area Conservation, Final Rule, 66 Fed. Reg. 3244, 3246 (Jan. 12, 2001) [hereinafter Roadless Rule].
75. A number of issues, such as old growth, road building, clearcutting, and below-cost timber sales, have continually mired the FS in conflict. One way to deal with these issues is to remove them from the debate. Similar to Dombeck's pro-active move on road building, for example, he and former Chief Jack Ward Thomas support the idea of declaring old-growth off limits to logging in national forests, partially because it is a way to deal with the divisive conflicts surrounding this practice. Mike Dombeck & Jack Ward Thomas, P-I Focus: Declare Harvest of Old-Growth Forests Off-Limits and Move On, SEATTLE Post-Intelligencer, Aug. 24, 2004, available at http:// seattlepi.nwsource.com/opinion/135891_oldgrowth24.html (last visited June 5, 2004).
76. See infra notes 101-103 and accompanying text.
77. Administration of the Forest Development Transportation System, Temporary Suspension of Road Construction and Reconstruction in Unroaded Areas, Interim Rule, 36 C.F.R. § 212; 64 Fed. Reg. 7290 (Feb. 12,1999).
78. "As a result of the considerable science and public involvement in formulating these plans and considering the disruption to management that could result by applying suspensions to these forests, the Department has decided to retain the exemption[s]." Id. at 7300. See Northwest Forest Plan Accomplishments, at http:/ /www.fs.fed.us/r6/nwfp.htm (last visited June 5, 2004).
79. see also Tongass Plan Documents, at http://www.fs.fed.us/ r10/tongass/management%20news/tlmp/tlmp.shtml (last visited June 5, 2004 ).
80. President Bill Clinton, Remarks at "Roadless" Lands Event, Reddish Knob Overlook, George Washington and Jefferson National Forest, Va. (Oct. 13, 1999), available at http://www.roadless.fs.fed.us/ documents/clinton_remarks.htm (last visited Aug. 29, 2003).
81. Memorandum from The White House, Office of the Press Secretary to the Secretary of Agriculture, Protection of Forest "Roadless" Areas (Oct. 13, 1999), available at http:// www.roadless.fs.fed.us/documents/chief-memorandum.htm (last visited June 5, 2003).
82. National Forest System Roadless Areas, 64 Fed. Reg. 56,306 (Oct. 19, 1999).
83. See 1 Roadless FEIS, supra note 49.
84. Dombeck et al., supra note 69, at 111.
85. See National Environmental Protection Act (NEPA), 42 U.S.C. § 4332(C)(3) (2000) (requiring "alternatives to the proposed action").
86. 1 Roadless FEIS, supra note 49, at 2-6.
87. I b i d.
88. Id. at 2-7.
89. Id. at 2-8.
90. Id. at 1-7.
91. I b i d.
92. I b i d.
93. Roadless Rule, supra note 71, at 3263 (referring to Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act Regulations, 46 Fed. Reg. 18,026 (Mar. 23, 1981)).
94. 1 Roadless FEIS, supra note 49, at ES-9.
95. Id. at ES-1.
96. Roadless Rule, supra note 71, at 3246.
97. Id. The Record of Decision, required by Council on Environmental Quality regulations (40 C.F.R. § 1505.2 (2002)), provides the reasons and logic for adopting rules.
98. Roadless Rule, supra note 71, at 3246.
99. I b i d.
100. I b i d.
101. Mike Dombeck, Introduction, in Rick Bass, The Roadless Yaak: Reflections and Observations About One of Our Last Great Wilderness Areas 1 (2002).
102. I b i d.
103. I b i d.
104. Id. at 1-2.
105. Roadless Rule, supra note 71, at 3245.
106. Id. at 3246.
107. I b i d.
108. Pamela Baldwin, The National Forest System Roadless Areas Initiative (Cong. Res. Serv., No. 30647) (Dec. 19, 2002, updated June 26, 2003), at http://www.ncseonline.org/nle/crsreports/03Jul/RL30647.pdf (last visited June 1, 2004) (providing a comprehensive chronology of administrative actions and litigation over the roadless rule). Among these cases, in Idaho v. United States Forest Service, No. CV01-11-N-EJL, 2001 U.S. Dist. LEXIS 21,990 (D. Idaho 2001), the State of Idaho sued for a declaratory judgment and to enjoin implementation of the rule for violation of NEPA, NFMA, and the APA. Colorado and Alaska joined the Idaho suit, and Utah also filed suit. Id. at 15.
109. Kootenai Tribe of Idaho v. Veneman, 142 F. Supp. 2d 1231 (D. Idaho 2001 . Other plaintiffs include Boise and Valley Counties, Idaho, Blue Ribbon Coalition, Idaho State Snowmobile Association, Illinois Association of Snowmobile Clubs, American Council of Snowmobile Associations, Little Cattle Co. Limited Partnership, Highland Livestock and Land Co., and Boise Cascade Corp.
110. Id. at 1247.
111. Id. at 1244, 1247.
112. See Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 814 (9th Cir. 1999)
113. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989).
114. Idaho v. U.S. Forest Serv., No. CV01-11-N-EJL, 2001 U.S. Dist. LEXIS 21990, 5 (D. Idaho 2001). Judge Edward C. Lodge found that "there is a substantial possibility that the Roadless Rule will result in irreparable harm to the National Forests," and that "[a] band-aid approach to something this controversial may mask or obscure the symptoms for political purposes but does not address the 'hard look' analysis for a cure as required by NEPA...." Id. at 7.
115. Letter from William H. Banzhaf, Executive Vice President, Society of American Foresters, to The Honorable Ann Veneman, Secretary of Agriculture (Apr. 27, 2001) (on file with author). This is a curious argument, for projects implementing forest plans have been especially susceptible to endless litigation and judicial management.
116. Baldwin, supra note 104, at 12.
117. 66 Fed. Reg. 35,918 (July 10, 2001);
118. 36 CFR §§ 219, 294 (2002).
119. 66 Fed. Reg. 35,918 (July 10, 2001).
120. Id. at 35,919.
121. Id. Other questions related to how best to protect forests, communities, and access to property and how best to designate inventoried roadless areas, including possible wilderness designation. Value-centered questions were also asked, such as, "How can the Forest Service work effectively with individuals and groups with strongly competing views, values, and beliefs in evaluating and managing public lands and resources, recognizing that the agency can not meet all of the desires of all of the parties?" Id. at 35, 920.
122. William Snape III & John M. Carter II, Weakening the National Environmental Policy Act: How the Bush Administration Uses the Judicial System to Weaken Environmental Protections (report of the Judicial Accountability Project and Defenders of Wildlife, 2003), available at http://www.defenders.org/publications/nepareport.pdf (last visited Aug. 12, 2004).
123. Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094,1095 (9th Cir. 2002).
124. Id. at 1116. See 40 C.F.R. § 1501.7 (2002).
125. Kootenai Tribe, 313 F.3d at 1119.
126. Id. at 1120.
127. Id. at 1122.
128. The FRWG includes Wildlife Forever, Wildlife Management Institute, The Wildlife Society, Trout Unlimited, Izaak Walton League of America, International Paper, Outdoor Industry Association, and Pinchot Institute for Conservation.
129. Forest Roads Working Group, Recommendations For Protection of Roadless Areas (Mar. 26,2003),at http://www2.merid.org/roadless/ (last visited June 1, 2004).
130. Id. at 3.
131. Id. at 1.
132. I b i d.
133. Id. at 2.
134. I b i d.
135. Id. at 1.
136. Id. at 14.
137. Id. at 11.
138. See discussion infra Part V.B.4.
139. Telephone interview with David New, Vice President, Timberland Resources, Boise Cascade (June 13, 2003).
140. Roadless Area Conservation Act of 2003, S. 1200, 108th Cong. (2003).
141. National Forest Roadless Area Conservation Act, H.R. 2369, 108th Cong. (2003).
142. Undersecretary of Agriculture Mark Rey told reporters on June 4, 2003, that a temporary rule allowing some exceptions to the roadless rule would not be renewed when it expired on June 14, 2003, effectively reinstating the original roadless rule. See Mathew Daly, Bush Seeks Roadless Revisions, Missoulian, June 10, 2003, at A1, A2.
143. See News Release No. 0200.03, U.S. Dep't of Agric., USDA Retains National Forests Roadless Area Conservation Rule: DOJ and State of Alaska Reach Roadless Agreement (June 9, 2003), available at http://www.usda.gov/news/releases/2003/06/0200.htm (last visited May 30, 2004). Note that the Chugach proposal was not discussed in this release but was included in the following ANPR.
144. See National Forest System Land and Resource Management Planning, Special Areas, Roadless Area Conservation, Proposed Rules, 68 Fed. Reg. 41,864 (proposed July 15, 2003) (to be codified at 36 C.F.R. pts. 291, 294).
145. Special Areas, Roadless Area Conservation, Applicability to the Tongass National Forest, Alaska, 68 Fed. Reg. 41,865 (proposed July 15, 2003) (to be codified at 36 C.F.R. pt. 294).
146. In an arguably misleading news release-"USDA Retains National Forests Roadless Area Conservation Rule" -Agriculture Secretary Ann Veneman explained how the proposed changes are consistent with the five principles announced in the ANPR and the types of exemptions that can be requested by governors, including protecting human health and safety, reducing hazardous fuels, restoring essential wildlife habitats, and providing reasonable access to private property. News Release No. 0200.03, supra note 136. Undersecretary of Agriculture Mark Rey characterized the proposal as "an opportunity to engage the states as partners to find where improvements to the rule can be made." Tom Kenworthy, Administration to Waive Forest Development Limit, USA Today, June 10, 2003, at 8A. Others saw it quite differently, arguing that these exemptions are already provided in the 2001 rule, and that the state-based approach allows unsympathetic governors to basically gut the protections exemption by exemption. Recall that a number of states challenged the rule in court and could be expected to take full advantage of the exemptions option. Furthermore, the hazardous fuels exemption, as we have seen in the debate over fire and forest health in the West, could easily be used to defend large-scale exemptions. "Forest health," after all, is a term that is easily hijacked and can be used to justify everything from roadless area protection to industrial-style forest management.
147. This is partly due to the amount of unroaded land in the 17 million acre national forest (9.45 million acres of currently unroaded land outside wilderness), the long and torturous history of writing the Tongass Land Management Plan, and various provisions of the Alaska National Interest Lands and Conservation Act and the Tongass Timber Reform Act. See USDA Forest Serv., Tongass National Forest Land and Resource Management Plan (1997), available at http://www.fs.fed.us/r10/TLMP/F_PLAN/ FPCOV.PDF (last visited May 30, 2004). At the time of publication, the FS has exempted the Tongass from the roadless rule and is considering doing so permanently.
148. See Special Areas, Roadless Area Conservation, Applicability to the Tongass National Forest, Alaska, 68 Fed. Reg. 75,136 (Dec.30, 2003) (to be codified at 36 C.F.R. pt. 294).
149. USDA Forest Service, Proposed Revision Roadless Rule, 36 C.F.R. pt. 294 for Tongass National Forest: Supplemental Information Report (Oct. 2003), at http://www.roadless.fs.fed.us/documents/ tnf_roadless_exemption_clean_final_102303.pdf (last visited May 30, 2004).
150. Letter from Mike Anderson, The Wilderness Society, to Interested Persons (June 11, 2003) (on file with author). According to Anderson, "the Administration is simply using the State of Alaska settlement as legal cover for what is a patently political deal to benefit the timber industry...." Id. The Bush administration, says Anderson, "schemed to defeat the Rule by failing to defend it in court." Id.
151. Special Areas; State Petitions for Inventoried Roadless Area Management, 69 Fed. Reg. 42,636 (July 16, 2004).
152. Id. at 42,637.
153. I b i d.
154. Id. at 42,639.
155. Id. at 42,638.
156. Id. at 42,637.
157. USDA Transcript No. 0287.04, Transcript of Remarks by Agriculture Secretary Ann M. Veneman at the announcement of the National Forests Proposed Roadless Rule with Governor Dirk Kempthorne and Senator Larry Craig (July 12, 2004), available at http://www.usda.gov/Newsroom/ 0287.04.html (last visited Aug. 8, 2004).
158. News Release No. 0283.04, USDA, Veneman Acts to Conserve Roadless Areas in National Forests: Announces National Advisory Committee to Help Implement New Rules (July 12, 2004), available at http:// www.usda.gov/Newsroom/0283.04.html (last visited Aug. 7,2004).
159. 69 Fed. Reg. 42,638 (July 16, 2004).
160. The proposal was hailed as a welcome message by Idaho Governor Dirk Kempthorne (R) and Montana Governor Judy Martz (R). See Sherry Devlin, State-by-State Roadless Plans Unveiled, Missoulian, July 13, 2004, at A1. But New Mexico Governor Bill Richardson (D) called the plan "an abdication of federal responsibility" and said he will petition to protect "every single inch" of roadless areas in his state.
161. See Juliet Eilperin, Roadless Rules for Forests Set Aside, Wash. Post, July 13, 2004, at A1. Oregon Governor Ted Kulongoski (D) also called the proposal an "abdication of ... responsibility" and a way for the FS and Congress to "circumvent what I think is their responsibility [to] manage these lands for all of us."
162. See Online NewsHour Transcript, Forest Conservation Rule (July 13, 2004), available at http://www.pbs.org/newshour/bb/ environment/july-dec04/forests07-13.html (last visited Aug. 8, 2004). Wyoming Governor Dave Freudenthal (D) was puzzled by the proposal and said it would be better to handle the issue through forest planning processes: "As near as I can tell, the feds are transferring a kind of political planning responsibility without any of the authority, and frankly without probably some of the information you might need to make the decision."
163. See Whitney Royster, Roadless Rule Puzzles Governor, Casper Star Trib., Aug. 6, 2004, available at http://www.casperstartribune.net/archives/ (last visited Aug. 8, 2004).
164. See Devlin, supra note 149.
165. Eilperin, supra note 149.
166. Wyoming v. U.S. Dep't of Agric., 277 F. Supp. 2d 1197 (D. Wyo. 2003). Note that this has not stopped the FS from proposing more timber sales in inventoried roadless areas. See Kathie Durbin, Massive Logging Plan Shakes Northwest, High Country News, Dec. 22, 2003, at 3, available at http://www.hcn.org/servlets/ hcn.Article?article_id=14453. For interim roadless area management direction.
167. see also Baldwin, supra note 104, at 16.
168. Wyoming, 277 F. Supp. 2d 1197.
169. I b i d.
170. Id. at 1232.
171. Id. at 1236.
172. Id. at 1235.
173. Id. at 1236.
174. I b i d.
175. I b i d.
176. Cornelius M. Kerwin, Rulemaking: How Government Agencies Write Law and Make Policy 181 (3rd ed. 2003).
177. See generally George Cameron Coggings et al., Federal Public Land and Resources Law (5th ed. 2002). The authors note, Federal land management agencies are frequently caught in the middle of modern federal land use controversies. Historical missions and practices have been severely eroded by new statutes, and new missions have been charted, but congressional directives often have held out little concrete guidance in concrete situations, and procedural requisites have proliferated. Interests over a wide spectrum forcibly argue that their conception of the public interest should prevail in the circumstances, and all sides are willing to resort to litigation or political processes if dissatisfied with decisional results. Id. at 6.
178. Professor Kenneth Culp Davis has called rulemaking "one of the greatest inventions of modern government." Kenneth Culp Davis, Administrative Law Treatise 283(1970).
179. Cornelius M. Kerwin, Rulemaking: How Government Agencies Write Law and Make Policy 22 (2d ed. 1999) [hereinafter Kerwin 2d ed.].
180. 5 U.S.C. § 551(4) (2000).
181. Kerwin 2d ed., supra note 163, at 3.
182. 5 U.S.C. § 551(4).
183. Kerwin 2d ed., supra note 163, at 5.
184. I b i d.
185. Id. at 23.
186. For a discussion of these core elements of rulemaking, how they have changed since 1946, and how they differ in informal and formal rulemaking, see id. ch. 2.
187. 5 U.S.C. § 553(b) (2000).
188. See id. § 553(c). Ironically enough, it appears as though Congress intentionally omitted an explanation for the public participation requirement.
189. 5 U.S.C. § 706(2)(A) (2000).
190. Kerwin summarizes as follows: Rules set limits on the authority of public officials in all areas of their work, identifying what they can know, how they can learn it, when they must act, what they must do, when they must do it, and actions they can take against those who fail to comply. A violation of rules puts the bureaucrat no less at risk than the private scofflaw. Fears of unfettered discretion in the hands of willful or ignorant bureaucrats are largely unfounded in a system in which citizens can trust that rulemaking will occur subsequent to any legislative enactment and set effective and reasonable limits on the use of otherwise discretionary power. Kerwin, supra note 160, at 33.
191. Id. at 56.
192. Id. at 57.
193. It is important to note that the APA exempts federal lands decision making from rulemaking procedures, but public land management agencies still regularly invoke the process. See 5 U.S.C. § 553(a)(2) (2000).
194. Kerwin, supra note 160, at 33-36.
195. See generally Frank R. Baumgartner & Bryan D. Jones, Agendas and Instability in American Politics (1993) (analyzing policy change and institutional venue shopping in American politics).
196. See generally Charles Davis, Politics and Public Rangeland Policy, in Westurn Public Lands and Environmental Politics 74 (Charles Davis ed., 1997).
197. Department Hearings and Appeals Procedures; Cooperative Relations, Grazing Administration - Exclusive of Alaska, 60 Fed. Reg. 9894 (Feb. 22, 1995).
198. Deborah Stone, Policy Paradox: The Art of Political Decision Making 288 (1997).
199. Id. at 289.
200. Id. at 295.
201. See generally Cass R. Sunstein, Legal Reasoning and Political Conflict (1996) (theorizing rules and the legal context in which they are made).
202. John S. Applegate, Beyond the Usual Suspects: The Use of Citizens Advisory Boards in -Environmental Decisionmaking, 73 Ind. L.J. 903, 908 (1998) (reviewing the use of citizen advisory boards in agency rulemaking and contrasting their use to interest group pluralism and regulatory negotiation).
203. Chris Wood, The Slow and Difficult Trick in, The Roadless Yaak: Reflections and Observations About One of Our Last Great Wild Places 19, 20 (Rick Bass ed., 2002).
204. Telephone Interview with Michael Dombeck, former U.S. FS Chief, currently Pioneer Professor of Global Environmental Management at the University of Wisconsin at Stevens Point (June 25, 2003).
205. Telephone Interview with Mike Francis, National Forest Program Director, The Wilderness Society (June 26, 2003).
206. I b i d.
207. Earthjustice, Background: Timeline of the Roadless Rule, at http:/ /www.earthjustice.org/backgrounder/display.html?ID=22 (last visited June 7, 2004).
208. Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1116 n.19 (9th Cir. 2002).
209. I b i d.
210. Roadless Rule, supra note 71, at 3248.
211. Martin Nie, "It's the Environment, Stupid!": Clinton and the Environment, 27 Presidential Stud. Q. 39, 44 (1997).
212. Letter from Mark Dayton, U.S. Senator (Minn.), to Martin Nie (Oct. 16, 2001) (on file with author).
213. I b i d.
214. Energy Impacts of the Roadless Rule: Joint Oversight Hearing Before the Subcomm. on Energy and Mineral Resources and the Subcomm. on Forests and Forest Health of the Comm. on Resources, 107th Cong. 11 (2001) [hereinafter Energy Impacts Hearing].
215. Content Analysis Team, USDA Forest Serv., Roadless Area Conservation Advanced Notice of Proposed Rulemaking: Summary of Public Comment (2002), available at http://roadless.fs.fed.us/documents/csumm/ summary.pdf (last visited June 5, 2004) [hereinafter Summary of Public Comment & Deis].
216. Id. at xx.
217. Id. at vii.
218. see generally 3 Roadless Feis, supra note 49 (analyzing and responding to public comments received in DEIS).
219. Thomas O. McGarity, Some Thoughts on "Deossifying" the Rulemaking Process, 41 Duke L.J. 1385 (1992).
220. Id. at 1392.
221. Id. at 1393.
222. Id. at 1397.
223. Id. at 1398.
224. Id. at 1400.
225. Id. at 1401.
226. USDA Forest Serv., The Process Predicament: How Statutory, Regulatory, and Administrative Factors Affect National Forest Management 36 (June 2002), available at http://www.fs.fed.us (last visited June 9, 2004).
227. McGarity, supra note 202, at 1403.
228. President Reagan's Executive Order 12,291, for example, requires that agencies submit all rules to the Office of Management and Budget for review so that they are in compliance with the order's cost-benefit analytical requirements. 46 Fed. Reg. 13,193 (Feb. 19,1981).
229. McGarity, supra note 202, at 1408. The scientific review process is often used by the Environmental Protection Agency, for example.
230. According to McGarity's analysis, ossification results from these requirements and reviews: The net result of all of the aforementioned procedural, analytical, and substantive requirements is a rulemaking process that creeps along, even when under the pressure of statutory deadlines. In the absence of deadlines, the process barely moves at all. Given all of the barriers to writing a rule in the first place, few agencies are anxious to revisit the process in light of changed conditions or new information. Knowing that mistakes or miscalculations in rules will be very difficult to remedy, agencies are also reluctant to write innovative or flexible rules in the first instance. Consequently, an important policymaking tool has become extraordinarily cumbersome. Id. at 1436.
231. Id. at 1462.
232. I b i d.
233. See generally A Vision for The U.S. Forest Service: Goals for Its Next Century (Roger A. Sedjo ed., 2000)
234. Forest of Discord, supra note 10.
235. Beaver et al., supra note 28.
236. Community-Based Land Management and Charter Forests: Oversight Hearing Before the Subcomm. on Forests and Forest Health of the House Comm. on Resources, 107th Cong. 107-08 (2002).
237. U.S. Const. art IV, § 3.
238. See , eg., Peter A. Appel, The Power of Congress "Without Limitation": The Property Clause and Federal Regulation of Private Property, 86 Minn. L. Rev.1 (2001) (reviewing the history and potential of the Property Clause).
239. United States v. San Francisco 310 U.S. 16, 29 (1940).
240. See also Kleppe v. New Mexico 426 U.S. 529, 539-41 (1976) (describing Congress's broad powers under the Property Clause).
241. Delegation critic David Schoenbrod makes an exception for the management of government property. See David Schoenbrod, The Delegation Doctrine: Could the Court Give It Substance?, 83 Mich. L. Rev. 1223, 1224-25 (1985).
242. David Schoenbrod, Power Without Responsibility: How Congress Abuses the People Through Delegation 186-89 (1993).
243. Sandra B. Zellmer, The Devil, the Details, and the Dawn of the 21st Century Administrative State: Beyond the New Deal, 32 Ariz. St. L.J. 941, 1025 (2000).
244. Id. at 1025, 1026.
245. See United States v. Grimaud, 220 U.S. 506, 521-22 (1911).
246. Roadless Rule, supra note 71, at 3252.
247. I b i d.
248. Id. at 3246.
249. Id. at 3252.
250. Id. at 3249-50.
251. Id. at 3250. Still, some critics contend that the rule violates the spirit, if not the letter, of NFMA because forest management decisions are to be made regionally. See, e.g., Jennifer L. Sullivan, The Spirit of 76: Does President Clinton's Roadless Lands Directive Violate the Spirit of the National Forest Management Act of 1976?, 17 Alaska L. Rev. 127, 158-59 (2000) (arguing that the Tongass National Forest requires a more flexible approach to road building than prescribed in the roadless rule and that the issue should be dealt with through the forest planning process).
252. See, e.g., Brandon Dalling, Administrative Wilderness: Protecting Our National Forestlands in Contravention of Congressional Intent and Public Policy, 42 Nat. Resources J. 385 (2002) (arguing that the roadless rule usurps the congressional power and authority to set aside public lands as wilderness).
253. see also Mortimer, supra note 22, at 961 (arguing that the rule is a "thinly disguised attempt to create wilderness").
254. Organic Act of 1897, ch. 2, § 1, 30 Stat. 35 (codified as amended at 16 U.S.C. § 551 (2000)).
255. MUSYA, 16 U.S.C. § 529 (2000).
256. Two-hundred-twenty species are listed as threatened, endangered, or proposed for listing; 1930 sensitive species rely on habitat within inventoried roadless areas. See 1 Roadless FEIS, supra note 49, at 3-180.
257. As Congress made clear, one of the primary purposes of the ESA is " to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved...." 16 U.S.C. § 1531(b) (2000).
258. Tillamook County v. U.S. Army Corps of Eng'rs, 288 F.3d 1140, 1143-44 (9th Cir. 2002).
259. An increasing body of literature is addressing the values, goals, and environmental philosophy of section 101 of NEPA and why it should matter in future NEPA implementation. See generally Lynton Keith Caldwell, The National Environmental Policy Act: An Agenda for the Future (1998).
260. Matthew J. Lindstrom & Zachary A. Smith, The National Environmental Policy Act: Judicial Misconstruction, Legislative Indifference & Executive Neglect (2001).
261. O'Connor Ctr. For The Rocky Mountain W. & Inst. For Env't & Natural Resources, Reclaiming NEPA's Potential: Can Collaborative Processes Improve Environmental Decision Making? (2000).
262. Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094,1122 (9th Cir. 2002). According to the court, "it was not the original purpose of Congress in NEPA that government agencies in advancing conservation of the environment must consider alternatives less restrictive of developmental interests." Id. at 1120.
263. See also 42 U.S.C. §§ 4231-4233 (2000).
264. Jay O'Laughlin & John C. Freemuth, Roadless Area Policy, Politics, and Wilderness Potential: Toward Understanding President Clinton's Directive to the U.S. Forest Service, 6 Int'l J. Wilderness 09, 10 (2000) (arguing that "Clinton's directive distorts the mandated NFMA process of identifying and recommending additions to the [National Wildlife Preservation System] through a forest-by-forest land-use planning process"). But see infra note 241 for 2000 planning regulations on this matter.
265. See generally David A. Clary, Timber and the Forest Service (1986 . Clary asserts that the agency's culture is more like a religion: its sacred mission was to provide wood to the world and avert a "timber famine." Id. at xii. This religious conviction, says Clary, explains much of the controversy surrounding national forest management in that the servant (FS) "believed firmly that it knew better than the public what the public really wanted." Id.
266. The Future of the United States Forest Service: Oversight Hearing before the House Comm. on Resources, 107th Cong. 107-10 (2002) [hereinafter Oversight Hearing].
267. This point raises a whole set of new questions that are beyond the scope of this article. See generally Ohio Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726 (1998);
268. 36 C.F.R. § 219.7 (2002).
269. See supra notes 92-96 and accompanying text; Roadless Rule, supra note 71, at 3252. The 2000 planning regulations are quite clear on this matter: Fundamental to this rule is the notion that there is a hierarchy of scale to be considered when addressing resource management issues, and that it is the nature of the issue that guides the selection of the appropriate scale and level of the organization to address it .... The rule should not be interpreted as excluding higher-level officials from decisions made at the forest and grassland level. If an issue warrants higher-level study and decisionmaking, such tasks can be undertaken. 65 Fed. Reg. 67,514, 67,523 (Nov. 9, 2000). Though uncertain at the time of publication, it is also important to note that forest planning regulations proposed under the Bush administration may significantly alter this decision-making framework and roadless area management in general.
270. 65 Fed. Reg. 67,514, 67,523 (Nov. 9, 2000). Though uncertain at the time of publication, it is also important to note that forest planning regulations proposed under the Bush administration may significantly alter this decision-making framework and roadless area management in general.
271. See 67 Fed. Reg. 72,770 (Dec. 6, 2002).
272. Congress could do so by using the Congressional Review Act, which gives Congress a certain amount of time to review and possibly disapprove a rule that is defined as "major." Under this Act, a major rule cannot become effective for at least 60 days after its publication so that Congress can consider the rule and possibly deal with it legislatively. 5 U.S,C. §§ 801,804(2) (2000).
273. In response to temporary suspension of new road construction, for example, "Senators Frank Murkowski (R-Alaska) and Larry Craig (R-Idaho) and Representatives Don Young (R-Alaska) and Helen Chenoweth (R-Idaho) threatened to cut the [FS] budget to a 'custodial' level because the Forest Service ... seemed 'bent on producing fewer and fewer results from the national forests at rapidly increasing costs."' Dombeck et al., supra note 69, at 106 (referring to the letter known to FS employees as "the salvo of the Four Horsemen of the Apocalypse").
274. See, e.g., Summary of Public Comment & DEIS, supra note 199.
275. One hearing was originally planned by Senator Larry Craig (R-Idaho) to evaluate the Congressional Review Act (CRA) as applied to the roadless rule. This failed to happen because Craig was "no longer convinced that this rulemaking [would] survive the U.S. court system long enough for Congress to act one way or another." Forest Service's Roadless Area Rulemaking: Hearing before the Subcomm. on Forests and Public Land Management of the Senate Comm. on Energy and Natural Resources, 107th Cong. 107-66 (2001) [hereinafter Roadless Area Rulemaking Hearing]. The CRA was included as part of the Small Business Regulatory Enforcement Act of 1996, Pub. L. No. 104-121, 110 Stat. 857, 868 (codified at 5 U.S.C. §§ 801-808 (2000)). The CRA provides Congress with a mechanism to review and disapprove federal agency rules. Also interesting to note is that the law was supported by Republicans who were concerned about burdensome regulations and wanted a way to review and possibly repeal them.
276. See Hearings cited supra notes 198, Energy Impacts Hearing.
277. 239 Oversight Hearing .
278. 245, Roadless Area Rulemaking Hearing
279. Quoted in Dombeck et al., supra note 69, at 107.
280. Oversight Hearing, supra note 239.
281. A good example of this is provided by the congressional response to the Federal Communication Commission's (FCC) very controversial rules, making it easier for media conglomerates to add new markets. 68 Fed. Reg. 46,283, 46,285 (Aug. 5, 2003). The rules were very controversial and led to a rare type of congressional repudiation. The congressional response took different forms, including attaching amendments to other bills that would weaken the rules and also by using the Congressional Review Act. The Senate approved a resolution, made possible by the CRA, to repeal the FCC's new (de)regulations. Stephen Labaton, F.C.C. Plan to Ease Curbs on Big Media Hits Senate Snag, N.Y. Times, Sept. 17, 2003, available at http://www.nytimes.com/2003/09/17/business/ media/17FCC.html (last visited June 25, 2004).
282. See generally Anderson & Moncrief, supra note 64 (recommending a legally binding long-term roadless area protection policy, whether by codification, executive order, or rulemaking).
283. Roadless Rule, supra note 71, at 3245-46.
284. Deborah J. Sheilds et al., Gen. Tech. Rep. RMRS-GTR-95, Survey Results of the American Public's Values, Objectives, Beliefs, and Attitudes Regarding Forests and Grasslands (2002) (a technical document supporting the 2000 USDA Forest Service RPA Assessment), available at http:/ /www.fs.fed.us/rm/pubs/rmrs_gtr095.pdf (last visited June 6, 2004). Like most comprehensive social surveys, there is enough data in this report to provide at least some ammunition for roadless rule opponents as well. For example, "[w]hile respondents feel that it is an important objective to keep management decisions local, they also feel that it is important to develop a national policy for natural resource development" Id. at 14.
285. I b i d.
286. Id. at 15.
287. Administrative and environmental law professor Tom McGarity has testified that the Card Memo used to postpone the original rule was in fact a violation of the APA, see Roadless Area Rulemaking Hearing, supra note 245, at 69.
288. 69 Fed. Reg. 42,636 (July 16, 2004).
289. See, e.g., USDA News Release No. 0283.04, Veneman Acts to Conserve Roadless Areas in National Forests (July 12, 2004), available at http://www.usda.gov/Newsroom/0283.04.html (last visited August 7, 2004). The title of this news release is misleading because the "proposed rule is merely procedural in nature and scope and, as such, has no direct, indirect, or cumulative effect on the environment." 69 Fed. Reg. 42,639 (July 16, 2004).
290. Ann Florina, The Coming Democracy: New Rules for Running the World 32 (2003) (applying the principle of transparency, made increasingly possible with information technology, to the challenges of global governance).
291. Id. at 16.
292. The same can also be said of the NEPA public participation process. See generally Jonathan Poisner, A Civic Republican Perspective on the National Environmental Policy Act's Process for Citizen Participation, 26 Envt'l L. 53, 85 (1996) (analyzing NEPA's public participation requirements from a synoptic, pluralistic, and deliberative standpoint).
293. Stuart W. Shulman et al., Electronic Rulemaking: A Public Participation Research Agenda for the Social Sciences, 21 Soc. Sci. Computer Rev. 162 (2003) (reviewing efforts in online rulemaking and calling for social science reflection and guidance in its development).
294. Robert D. Carlitz & Rosemary W. Gunn, Online Rulemaking: A Step Toward E-Governance, 19 Gov't Info. Q. 391 (2002) (reviewing efforts in online rulemaking). see, e.g., the regulatory portal provided by the Office of Management and Budget, at http:/ /www.regulations.gov (last visited June 6, 2004). The Bush administration has outlined an "E-Government Strategy" that would move to electronic dockets among other things, available at http:/ /www.whitehouse.gov/omb/inforeg/egovstrategy.pdf (last visited June 6, 2004).
295. Shulman et al., supra note 261, at 165.
296. I b i d.
297. See USDA Forest Serv., Roadless Area Conservation, at http://www.roadless.fs.fed.us/ (last visited June 6, 2004).
298. Shulman et al., supra note 261, at 163.
299. Visit the Department of Transportation's Docket Management System at http://dms.dot.gov/ (last visited June 6, 2004), and the Environmental Protection Agency's EDOCKET at http://cascade.epa.gov/RightSite/ dk_public_home.htm (last visited June 6, 2004).
300. According to Carlitz & Gunn, supra note 261, at 391, efficiency considerations drove the adoption of the electronic docket at the Department of Transportation, partly because the new system was designed to replace the agency's old paper system.
301. See Barbara H. Brandon & Robert D. Carlitz, Online Rulemaking and Other Tools for Strengthening Our Civil Infrastructure, 54 Admin. L. Rev. 1421 (2002) (discussing electronic docket rooms and online policy dialogues and other innovations in online rulemaking).
302. Carlitz & Gunn, supra note 261, at 395. This is one reason why democratic theorists are so interested in the use of online dialogue: it provides a way to move from "preference aggregation" to a more deliberative and discursive design.
303. See generally Shulman et al., supra note 261.
304. David Schlosberg & John S. Dryzek, Digital Democracy: Authentic or Virtual?, 15 Org. & Env't. 327 (2002).
305. Shulman et al., supra note 261, at 169.
306. The term "scoping" is used here in an inclusive way to refer to different types of agency-sponsored pre-decisional public involvement strategies, often used as a way to determine the significant issues to be addressed in an environmental impact statement and resource plans.
307. Cheri Brooks, Giving Good Weight: Public Comment, the Forest Service and You, 4 Forest Mag. 38 (2002).
308. I b i d.
309. I b i d.
310. See generally Toddi A. Steelman, The Public Comment Process, 97 J. Forestry 22 (1999). In her examination of public participation in forest planning on the Monongahela National Forest, Toddi Steelman found that technical and value-based feedback was important to decision makers in the planning process, saying that " [t]echnical information from the public helped shape some specific management decisions, and value-based information shaped the overall management direction." Id. at 25. Steelman notes, however, that [p]ublic land management agencies are more proficient with and responsive to technical input because this is the information with which they are most comfortable. Their institutional cultures and organizations are less adept at handling value-based input, which may help explain why conflict has plagued public involvement in Forest Service decision making. Id.
311. Peter R. Mulvihill, Expanding the Scoping Community, 23 Envtl. Impact Assessment Rev. 39 (2003).
312. Peter R. Mulvihill & Douglas C. Baker, Ambitious and Restrictive Scoping: Case Studies from Northern Canada, 21 Envtl. Impact Assessment Rev. 363 (2001).
313. Peter R. Mulvihill & Peter Jacobs, Using Scoping as a Design Process, 18 Envtl. Impact Assessment Rev. 351 (1998).
314. Mulvihill, supra note 276, at 42.
315. Mulvihill & Baker, supra note 276.
316. See supra Part III.C.3.
317. For a discussion of how advisory boards could be used to improve agency decision making and how the model differs from regulatory negotiation and notice-and-comment participation, see Applegate, supra note 186. Applegate concludes that "[c]itizens advisory boards represent a useful new alternative to the one-way, often adversarial, communication of the review-and-comment models and to the narrow representation of regulatory negotiation." Id. at 957.
318. The use of RACs in rangeland policy making provides one, albeit controversial, example. See generally Todd M. Olinger, Public Rangeland Reform: New Prospects for Collaboration and Local Control Using the Resource Advisory Councils, 69 U. Colo. L. Rev. 622 (1998 . Their use in forest policy is much more limited. Resource Advisory Committees were formed under the Secure Rural Schools and Community Self-Determination Act of 2000, with the purpose of recommending funding for projects meeting various criteria. Pub. L. No. 106-393. More information on the Public Law can be found at USDA Forest Serv., Payments to States, at http://wwwnotes.fs.fed.us:81/r4/ /payments_to_states.nsf (last visited June 6, 2004).
319. 1.6 U.S.C. 1600 § 14(b) states, In providing for public participation in the planning for and management of the National Forest System, the Secretary, pursuant to the Federal Advisory Committee Act (FACA) (86 Stat. 770) and other applicable law, 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. When asked, FS personnel often cite what they believe is the onerous nature of FACA as one reason advisory boards have not been used more often in the past.
320. See generally Allyson Barker et al., The Role of Collaborative Groups in Federal Land and Resource Management: A Legal Analysis, 23 J. Land Resources & Envtl. L. 67 (2003) (placing collaborative groups in their larger legal context, including an analysis of FACA and APA).
321. See generally Across the Great Divide: Explorations in Collaborative Conservation and the American West (Philip Brick et al. eds., 2000) (reviewing the growth of collaborative conservation in western environmental management).
322. It would also be interesting to allow agency personnel to express their views in a type of internal agency straw poll. Because agency expertise is such an important part of the administrative control argument, why not allow these professionals a way to convey their preferences about proposed agency rules? At times, it would uncover the common divide between agency personnel and political appointees.
323. See generally Greg Hanscom, Outsourced, High Country News, Apr. 26, 2004, at 7 (reporting on the executive-level pressure and politics surrounding the roadless rule's (recently outsourced) content analysis team).
324. By using FS data obtained through a Freedom of Information Act request, the Montana Wilderness Association conducted its own statistical analysis and reported that, of those commenting from Montana, Wyoming, and Idaho, 81 percent favored adopting the January 2001 roadless rule in its originally promulgated form or strengthening it. Mont. Wilderness Ass'n, Wilderness Basics, Roadless Areas, available at http:/ /www.wildmontana.org/roadless.html (last visited June 12, 2004).
325. Summary of Public Comment & DEIS, supra note 199.
326. Id. at i ("The analysis attempts to provide fair representation of the wide range of views submitted, but makes no attempt to treat input as if it were a vote. The goal of the content analysis process is to ensure that every comment is considered.").