On September 13, 1999, United Four Wheel Drive Associations filed a law suit in Federal District Court for the District of Columbia against the U.S. Forest Service and the Department of Agriculture. The law suit was filed due to violations by the Forest Service of the Administrative Procedure Act (APA) and the National Environmental Policy Act (NEPA). The government will have sixty days to file their answer with the court and then a scheduling meeting between the plaintiffs and defendants will be set up.

The blunders by the Forest Service over the past year and half that have led to this suit are numerous. If the motorized community didn?t have so much to lose, it would almost be funny. But then again, there?s nothing funny about an agency that condones secrecy, non-compliance, and violation of the law, as it seems the current leadership of the Forest Service does. Perhaps the Office of General Counsel summed up the position of this administration best when they told me that "I could always sue them".

The blunders began before the draft rule for the Road Moratorium was ever introduced in January of 1998. It would be March of 1998 before I would happen upon evidence of the first blunder, but it actually occurred in December of 1997. In January of 1998, the Forest Service published a draft rule for the Road Moratorium in the Federal Register. At that time, the public was given until February 27, 1998 to make comments on the draft rule. That time period was later extended to March 30, 1999.

In the early part of March, I had the opportunity to personally review about 10,000 of the 30,000+ public comments submitted at that time. It was at this review that I happened upon a stack of public comments dated in December of 1997. Remember, the draft of the rule wasn?t released to the public until January of 1998 when it was published in the Federal Register. Despite the fact that the Forest Service has continued to deny any public input on the Road Moratorium before January 1998, I found comments to the contrary. The most disturbing part of this particular blunder was that the comments all had one thing in common. They all requested the Forest Service to protect all roadless areas over 1,000 acres in size without excluding protection for Alaska and the Pacific Northwest. It wasn?t until I found one comment in particular that I really became concerned. However, one of the comments included a business card from the author of the letter. The letter was submitted by Maja K. Haium, EarthJustice Legal Defense Fund (formerly Sierra Club Legal Defense Fund). I hope you are asking yourselves this; how could the Sierra Club and other green advocates write comments in December of 1997 regarding a policy that the Forest Service swears wasn?t released outside the agency until January of 1998? The only plausible answer must be that the Forest Service did in fact discuss the policy with green advocacy groups without ever discussing it with other forest users such as yourselves!

The next blunder came on the same day in January that the draft Road Moratorium was published in the Federal Register. The Forest Service published another related notice (ANPR) pertaining to the concept of overhauling the National Forest Transportation System. This ANPR shared the same comment period deadline as the Road Moratorium and shared the same general goal of addressing alleged maintenance needs on our National Forests. The public was very confused by the two separate attempts at rulemaking. In fact, the Chief stated in a later document that, "most comments did not distinguish between the proposed temporary suspension and the ANPR?".

The third blunder came in February of 1999 when the final rule for the Road Moratorium was published in the Federal Register. Actually, there were several serious problems and mistakes associated with this final rule. The first problem was the fact that the details of the final rule varied significantly from the draft rule. The APA, and supporting case law require that draft rules must give sufficient notice of the agency?s intentions. The final rule does not have to be identical to the draft, but it must be a logical outgrowth of the draft and the things it originally proposes. When the final rule is not a logical outgrowth of the draft, or where the final rule is a result of a complex mix of controversial and uncommented upon data, the final rule must be overturned.

In February of 1999, with the publication of the final rule, the public was given definitions for road, classified road, unclassified road, and unroaded areas for the very first time. There was nothing in the draft which indicated that these newly created definitions would be made by the Forest Service. The final rule defined a road as a travel way greater than 50 inches in width. A classified road is a travel way greater than 50 inches in width that is constructed and maintained for long-term highway vehicle use. An unclassified road is a travel way greater than 50 inches in width that is not constructed, maintained, or intended (notice the addition of the word "intended" in this definition) for long-term highway use. An unroaded area is an area that does not contain classified roads. Despite current law to the contrary, the Forest Service created these definitions for the final rule even though the definitions were never commented upon and are highly controversial.

The controversy surrounding these new definitions has arisen because the Forest Service official policy now says that an area having an abundance of motorized roads and trails can be considered "unroaded" if those roads and trails were not maintained, constructed, or intended for long-term highway use. How many of your favorite motorized recreation spots would the Forest Service go on record as saying WERE constructed, maintained, and intended for long-term highway use? If you?re not sure, remember that the Forest Service has only maintained 40% of its roads, there is a $10 billion backlog on maintenance, and most of the roads which have not been maintained are Level 2 (high clearance) or Level 1 (closed but not yet obliterated) roads. If the Forest Service alleges that Level 2 and Level 1 roads are unclassified because they are not being maintained, you could be riding in an "unroaded area". These "unroaded areas" will soon be inventoried and evaluated for roadless area characteristics for recommendation as a Wilderness area. But that?s not all, the Forest Service has stated that one of its goals with the rulemaking of 1998 is to "aggressively decommission unneeded roads". There are currently over 347,000 miles of Level 1, Level 2, and non-system roads in the country that the Forest Service will label "unclassified" and "unneeded".

The other problem with the final rule was the creation and publication of an Environmental Assessment (EA) as part of the final rule. The final rule introduced the EA for the first time. The final rule indicated that a copy of the EA could be found on-line. However, on the day the final rule was published the EA was NOT available on-line due to Forest Service system errors. When I telephoned the contact number to order a copy of the EA, the receptionists told me that none of the staff was in the office that day and she had no knowledge of the document I was looking for. After much pleading, I finally convinced her to direct me to someone in Washington, D.C. that did have the information I was looking for. When I found someone working that day, they assured me that I would get the EA in the mail but thought it would be a week before the on-line information would be accessible.

At this point the blunders become more frequent and more serious. Once I received the EA, I realized that the Forest Service was claiming that it had received public comments on this document. The EA contained 6 Alternatives for consideration. The draft rule published in 1998 was represented as alternative 3. The final rule implemented alternative 6. NEPA and the regulations published by the CEQ require public comment and input on EAs. Although the EA wasn?t drafted or presented to the public until 1999, the Forest Service wants us to accept its word that we had an opportunity to comment on the EA in 1998! But hey, if we don?t believe them we can always sue, or so says the Office of General Counsel, right?

On April 12, 1999, in compliance with Forest Service regulations, United Four Wheel Drive Associations filed a notice of appeal on the EA with Mr. Daniel Glickman, Secretary of the Department of Agriculture. According to Forest Service regulations, Mr. Glickman had until April 28, 1999 to indicate to United whether he would hear the appeal. After no less than six telephone calls on May 5, 1999, I finally spoke to an employee in the Office of General Counsel that informed me that our appeal, or anyone else?s appeal for that matter, would not be heard. This employee assured me on May 5, 1999 that a formal letter to that effect had been sent out. On May 13, 1999 I received such a letter from the office of Ecosystem Management. However, the letter was dated March 7, 1999. These dates can all become confusing, so permit me to point out that the letter indicating the appeal would not be heard was dated almost 30 days prior to the date I sent in our notice of appeal! Nobody works that fast, especially the government. I assumed that a typographical error had occurred and that the correct date on the letter was supposed to be May 7, 1999 (two days after OGC had indicated that the letter had already been sent mind you). I assumed that one quick telephone call would resolve the issue. But unlike the rest of the world, the United States Forest Service didn?t see fit to print a telephone number on their letterhead. Once I did track down a telephone number for the author of the letter, I was transferred to someone else in that office who finally issued a properly dated letter. It may seem petty to point out that the person that signed the letter was neither the person I spoke with nor the person whose name appeared on the signature line of the letter, but in light of the continued problems with the Forest Service it is no small thing. I could chalk it up to big government bureaucracy, but I?m not that generous and I?m not that gullible.

Oh, one more blunder is still unresolved to this day. Department of Agriculture regulations, and the APA, make provisions for requesting repeals of agency rules. On March 23, 1999, United requested Chief Michael Dombeck to repeal the final Road Moratorium rule. I also sent a copy of this request to Jim Lyons, Under Secretary of Agriculture for Natural Resources and Environment (Mr. Dombeck?s direct supervisor, so to speak). Guess what? United has never received a response to this request, despite the fact that the regulations require that the Chief "notify promptly of the disposition made of petitions".

So that brings us back to today. These aren?t just blunders. Most, if not all of them, amount to a violation of the APA or NEPA. It seems we are in an age where some public servants think that they are immune from following the law. The Forest Service has been lulled into a false sense of security that they can do what they please and never answer for their transgressions. On September 13, 1999, Mr. Dombeck, Mr. Glickman, and Janet Reno were served with a summons from United Four Wheel Drive Associations that says otherwise! Are you willing to take the Forest Service on its word that the Road Moratorium is nothing more than "a temporary halt to roadbuilding"? I?m not. And I?m definitely not willing to just stand by and let the Forest Service redefine 347,000 miles of roads right out of existence . If you?re not willing to stand by and let that happen either you can help by contributing to the United Four Wheel Drive Associations? Land Action Fund and by becoming a member of United. Please contact us at 4505 W. 700 S., Shelbyville, IN 46176, 1-800-44-UFWDA, or at http://www.ufwda.org

Carla Boucher is a licensed attorney and legislative advocate for United Four Wheel Drive Associations. She can be contacted at LegisAdvoc@UFWDA.ORG or at (757) 482-4474 (E.S.T.).