(312-772-4507)
Attachments:
* Notes & Background: Supplement, pp. 4-5
* Letter on 'Ex Parte' obstruction to J. Lyons, Asst. Sec'y
(12/6/93)
* Response from J. Gilliland, OGC (1/10/94)
* Letter to J. Lyons (2/23/94), attached comments by A.E. Mates,
USFS (7/23/93)
* Forest Service Statement: LE Proposal withdrawn by Chief
(5/18/94)
* 1st FOI Response from J.L. Beasley, Dep. Chief (7/22/94)
* 2nd amended FOI Request on Law Enforcement Comments, to J.L.
Beasley (8/4/94)
* "Reinvention of the Forest Service: The Changes Begin"
(12/6/94); pp.18-20.
CC: Jim Lyons, USDA Ass't Secretary
Sen. Frank Murkowski
Jack Ward Thomas, USFS Chief
Forest Service Reinvention Team
Sen. Orrin G. Hatch
Sen. Hank Brown
Carol Rasco, White House Domestic Policy
Certified Mail # P023 831 183
2/14/95
NOTES & BACKGROUND
1 "Reinvention of the Forest Service: The Changes Begin".
-- USDA Forest Service (6 December 1994).
2 Federal Register: Vol.59, No.218; November 14, 1994, pgs.
57020-57028.
("USDA-FS: 16. Land uses and prohibitions"). This was the focus
of my
faxletter to you on 12/30/94.
3 Staff from the ACLU Legislative Office spoke with Ellen
Hornstein (USDA
Office of General Counsel) and Ron Myers (USFS Recreation,
Cultural Resources,
& Wilderness Management Staff) in early January. They stated
that the revised
Group Use rules were already written and under final review
before publication
in the Federal Register.
4 In November 1993 this question was posed to Mr. Perry (Natural
Resources
Division Chief, USDA Office of General Counsel). He replied:
"We don't think
the courts can tell us how to run the agency."
5 Refer to the PCU position paper -- "Group Use Rules for
National Forest
Lands: A Legal & Land Use Review" -- especially discussions under
"251.54
Special Use Applications", and section C on "Regulatory Impacts".
Forest Service actions violate requirements of the APA as amended
by Executive
Order 12291, under which no new regulations may be enacted
without
establishing "need ...and consequences", and that "benefits
...outweigh
potential costs to society".
It further states that the agency must assess "any adverse
effects that
cannot be quantified in monetary terms, and ...those likely to
bear the
costs", and meet its regulatory objective by "the alternative
involving the
least net cost to society". (Id., # 2,3).
6 A meeting with Assistant Secretary Lyons was set for
mid-December 1993.
The Office of General Counsel seized information previously
submitted and
instructed Mr. Lyons staff that they were not to meet or
communicate with us,
on the grounds that this constituted "ex parte contact" during
the rulemaking
process.
Neither the law nor the record support such Agency actions
to preempt
citizen inputs on issues of general public concern (1 CFR
§305.77-3).
Moreover no other "parties" are harmed or impeded by information
we bring to
the Secretarys front door, acting as free Citizen in the general
interest. In
fact we have consistently called for an open public forum or
hearings, where
all the facts and views could be joined toward a Consensus on new
policies on
public access and assembly, preserving Constitutional Rights in
the National
Forests.
7 The final day of the public comment period was 18 May '94,
when the Chief
announced that the Agency would "not proceed to a final rule" on
the current
Law Enforcement proposal. In a phone conversation that day,
Division Staff at
the Virginia headquarters acknowledged that a huge pile of
opposing letters
had been received.
He suggested that they might be set aside or discarded, since
there would be a
new comment period anyway when a revised proposal is published.
In turn this
writer advised that IT IS the official public record... It cannot
be simply
thrown out.
We have taken the position that the full record of the
aborted rulemaking
must remain intact to inform future policy, and that its contents
must be
identified and reviewed, as required by the Notice-&-Comment
process of
"informal rulemaking" under the Administrative Procedure Act.
We submitted a Freedom of Information request for a copy of
the Comment
Log (5/23). Over several months into the summer, we were
informed at least
twice that it was not ready. The response from Deputy Chief
Lamar Beasley
finally arrived at the end of July, stating that "...we have
conducted a
careful search of our records and determined that there is no
document that is
responsive to your request. The search was exhaustive and
reasonable."
A second amended FOI Request was immediately sent in
(8/4/94). It noted
that the Forest Service Chief acknowledged "thousands of comments
from
citizens" objecting to the proposed rules, yet an "exhaustive and
reasonable"
search by the Deputy Chief failed to find any record of these,
estimated by
other USFS staff to number over 70,000 letters. To date no
response has been
received from the Agency.
As for the whereabouts of the actual comment letters, in
early Fall '94
we were told that they had been sent to USFS Law Enforcement
Headquarters near
Atlanta, Georgia. We prepared with volunteers there to extend
the request
directly to that office, and then heard within a couple of months
that the
letters were back in Virginia... and that the Log was still not
available.
The law requires that the formal record be open to public
review.
Congress should take a hard look at a Federal Agency that would
conceal the
formal record, deny access, disregard its contents or that it
even exists. It
would be helpful and informative if independent requests for the
Formal
Comment Log came from the Hill.
8 Montana Missoulian, Page B-1 (April 22, 1994). Senator Max
Baucus joined
with Senator Conrad Burns and Congressman Pat Williams of Montana
in opposing
the Law Enforcement amendments (36 CFR Parts 261,262) proposed by
the Forest
Service in February 1994.
Williams called the wide sweep of the rules "unnecessary and
inappropriate", questioning enforcement impacts on routine
camping activities
and the broad discretion to ban firearms in the National Forests.
Burns
observed: "Only elitist bureaucrats could think up this kind of
nonsense. If
this wasnt so serious, I would laugh."
PCU // Freedom of Assembly Project
For further information...
PEOPLE FOR COMPASSION AND UNDERSTANDING
PO Box 27217 - Washington, DC 20038
PO Box 6625 - Chicago, IL 60680
202-462-0757, 202-265-5389 (Fax)
Hotline: 312-409-0018
prop1@ uujobs.com
scottie@dol.com
Winter 1995 --
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