April 4, 2003

From: Leann Kuhl, Paralegal

BUDD-FALEN LAW OFFICES, P.C.

300 East 18th Street

Cheyenne, WY 82001

307-632-5105 Phone

307-637-3891 Fax

The following are our draft comments to the Forest Service Land Use Planning comments.

The comment deadline is April 7, 2003.

Although the Forest Service is attempting to simplify its land use plan development process, these regulations also propose to limit the participation.

April 4, 2003

USDA FS Planning Rule

Content Analysis Team

P.O. Box 8359

Missoula, MT 59807

Re: Proposed rule for National Forest System Land and Resource Management planning

Dear Sirs:

The purpose of this letter is to provide comments regarding the Forest Service ("FS") proposed rules regarding the National Forest Land and Resource Management ("RMP") planning process at 36 C.F.R. Part 219. In general, I support the Forest Service revisions to its planning regulations. These revisions should streamline the planning process required by the National Forest Management Act ("NFMA"). However, these proposed rules also contain provisions with decrease the ability of local government to be involved in the Forest Service RMP planning process and can be read to violate the Forest Service organic statutes. My specific comments are set forth below:

Proposed Sections 219.1, 219.2(b)(6), 219.4(a)(3)(iv); 219.13 - RMP Compliance with Multiple Use and Sustained Yield Requirements

The proposed planning regulations recognize that Forest Service RMPs must be consistent with federal law and cite the Multiple Use-Sustained Yield Act ("MUSYA"). Although Congress did indeed direct that Forest Service lands be managed for "multiple use" and "sustained yield," the MUSYA clearly recognizes the purposes for which the National forests were originally created and states that the management for multiple use shall not be in derogation of the original purposes for which the National forests were created. Under the Organic Act of 1897, 16 U.S.C. § 475, ("Organic Act"), national forests were reserved for two purposes: to maintain favorable conditions for water flows and to ensure a continuous supply of timber. With passage of the MUSYA, 16 U.S.C. §§ 528 et. seq., Congress required the FS to manage "renewable surface resources of the national forest for multiple use and sustained yield of the several products and services obtained therefrom." However, while the "multiple use" mandate of MUSYA did in fact broaden the purposes for which national forests may be managed, MUSYA did not further reserve national forests for such purposes. See United States v. New Mexico, 438 U.S. 696, 706-18 (1978). Likewise, the National Forest Management Act ("NFMA") does not define sustained yield or multiple use, but requires forest planning to be consistent with the MUSYA. 16 U.S.C. §§ 1602,1604. Like the MUSYA, NFMA requires the Forest Service to consider environmental and ecological factors in land use planning. However, also, like MUSYA, NFMA does not elevate ecological factors above any other multiple-use nor does it require that national forest land use plans be contingent upon such considerations. These comments recommend that the FS planning regulations accurately reflect the direction in all FS authorizing regulations and include the original purposes for which the National forests were reserved.

Proposed sections 219.2(c); 219.4(a)(3) - RMP to comply with agency policy and directives

Although the FS is required to comply with lawfully promulgated rules, regulations, Executive Orders, etc., "agency policy" and "agency directives" that have not gone through the rulemaking process under the Administrative Procedures Act ("APA") 5 U.S.C. § 554 does not have the "full force and effect of law" and should not be used to guide RMPs.

Proposed sections 219.4(a)(6); 219.11 - Monitoring requirements

In addition to monitoring whether the management actions in the RMP are moving the forest toward desired future conditions, the FS should also monitor the impacts of the National forest on the surrounding community and lands. See current regulations at 36 C.F. R. § 219.7(F). These comments encourage the FS to retain this current requirement.

With regard to proposed section 219.11(b), the FS should not limit the information it seeks to "data and other information pertinent to characteristics of ecosystem and species diversity." Because National forests are to be managed for multiple use and sustained yield (as long as those uses are not in derogation of the primary purposes for which the National forest were reserved), monitoring should be broad enough to ensure that the management of the forests are meeting all those mandates.

Proposed section 219.5(b)(2); 219.7(f)(4) - Interim amendments and included issues

Interim amendments and the decision whether or not to consider an issue or opportunity should be subject to appeal or objection.

Proposed section 219.12 - Consultation, cooperation and coordination

The proposed regulations change the statutorily required "consultation, cooperation and coordination" requirements (see 43 U.S.C. § 1752(d)) to "collaboration, cooperation and consultation." This change does not comply with federal law and should not be included in the final regulations.

Proposed section 219.12(a)(2) - State and local government involvement in planning process

The new FS planning regulation significantly limit the opportunities for state and local government planning in the RMP process. For example, under the current planning regulations, the FS is:

(a) Obligated to coordinate with equivalent and related planning efforts of local governments. 36 C.F.R. § 219.7(a).

(b) Obligated to meet with local governments to establish processes for coordination. At a minimum, coordination and participation with local governments shall occur prior to FS selection of the preferred management alternatives. 36 C.F.R. § 219.7(c).

(c) Obligated after review of the local governments land use plan, to display the results of its review in the environmental impact statement. 36 C.F.R. § 219.7 (c).

(d) Obligated to consider alternatives to its proposed alternative if there are any conflicts with local land use plans. 36 C.F.R. § 219.7(c)(4).

(e) Required to implement monitoring programs to determine how the FS land use plans affect communities adjacent to or near the natural forest being planned. 36 C.F.R. § 219.7(f).

These comments strongly encourage the FS to retain the local governments current participation ability in the FS land use planning process. Such specific participation is critical to meeting the mandates of the NFMA, NEPA and the Intergovernmental Cooperation Act, 31 U.S.C. § 6506(c). Additionally, the proposed regulation require the FS to "consider and assess economic and social information at relevant time frames and geographic areas as appropriate to the issues. Social and economic information may be obtained from others. . ." See proposed regulation section 219.13(a). These comments urge the FS regulations to mandate that this information must be developed on a local level with the direct involvement of the State and local governments and Indian tribes impacted.

7. Proposed Section Options

These comments support selection of the option which mandates the FS recognize the two purposes for which the national forests were reserved and manages the national forests in compliance with MUSYA.

8. Proposed section 219.14 - Consideration of science

This section should be revised to comply with the mandates of the Federal Data Quality Act, 515(a) of Pub. L. No. 106, 114. Stat 2763 (2000). Under that act, data used by the federal agencies must meet basic informational quality standards of (a) quality, (b) utility, (c) objectivity and (d) integrity. 66 Fed. Reg. at 49719.

9. Proposed section 219.19 - Objectives

As part of the public notice requirements, RMP's, amendments and revisions should be sent to impacted state and local governments and Indian tribes.

Sincerely,

Karen Budd-Falen BUDD-FALEN LAW OFFICES, P.C. 300 East 18th Street Cheyenne, WY 82001 307-632-5105 Phone 307-637-3891 Fax