[Senate Hearing 107-66]
[From the U.S. Government Publishing Office]



                                                         S. Hrg. 107-66

               FOREST SERVICE'S ROADLESS AREA RULEMAKING

=======================================================================

                                HEARING

                               before the

                            SUBCOMMITTEE ON
                   FORESTS AND PUBLIC LAND MANAGEMENT

                                 of the

                              COMMITTEE ON
                      ENERGY AND NATURAL RESOURCES
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             FIRST SESSION

TO CONDUCT OVERSIGHT ON THE ENERGY IMPLICATIONS OF THE FOREST SERVICE'S 
                        ROADLESS AREA RULEMAKING

                               __________

                             APRIL 26, 2001


                       Printed for the use of the
               Committee on Energy and Natural Resources

                                ----------

                   U.S. GOVERNMENT PRINTING OFFICE
73-348                     WASHINGTON : 2001

_______________________________________________________________________
            For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 
                                 20402

               COMMITTEE ON ENERGY AND NATURAL RESOURCES

                  FRANK H. MURKOWSKI, Alaska, Chairman
PETE V. DOMENICI, New Mexico         JEFF BINGAMAN, New Mexico
DON NICKLES, Oklahoma                DANIEL K. AKAKA, Hawaii
LARRY E. CRAIG, Idaho                BYRON L. DORGAN, North Dakota
BEN NIGHTHORSE CAMPBELL, Colorado    BOB GRAHAM, Florida
CRAIG THOMAS, Wyoming                RON WYDEN, Oregon
RICHARD C. SHELBY, Alabama           TIM JOHNSON, South Dakota
CONRAD BURNS, Montana                MARY L. LANDRIEU, Louisiana
JON KYL, Arizona                     EVAN BAYH, Indiana
CHUCK HAGEL, Nebraska                DIANNE FEINSTEIN, California
GORDON SMITH, Oregon                 CHARLES E. SCHUMER, New York
                                     MARIA CANTWELL, Washington
                    Brian P. Malnak, Staff Director
                      David G. Dye, Chief Counsel
                 James P. Beirne, Deputy Chief Counsel
               Robert M. Simon, Democratic Staff Director
                Sam E. Fowler, Democratic Chief Counsel
                                 ------                                

           Subcommittee on Forests and Public Land Management

                    LARRY E. CRAIG, Idaho, Chairman
                  CONRAD BURNS, Montana, Vice Chairman
PETE V. DOMENICI, New Mexico         RON WYDEN, Oregon
DON NICKLES, Oklahoma                DANIEL K. AKAKA, Hawaii
GORDON SMITH, Oregon                 TIM JOHNSON, South Dakota
CRAIG THOMAS, Wyoming                MARY L. LANDRIEU, Louisiana
JON KYL, Arizona                     EVAN BAYH, Indiana
RICHARD C. SHELBY, Alabama           DIANNE FEINSTEIN, California
                                     CHARLES E. SCHUMER, New York
                                     MARIA CANTWELL, Washington

  Frank H. Murkowski and Jeff Bingaman are Ex Officio Members of the 
                              Subcommittee

                  Mark Rey, Professional Staff Member
                    Kira Finkler, Democratic Counsel


                            C O N T E N T S

                              ----------                              

                               STATEMENTS

                                                                   Page

Akaka, Hon. Daniel K., U.S. Senator from Hawaii..................     4
Bingaman, Hon. Jeff, U.S. Senator from New Mexico................     4
Cantwell, Hon. Maria, U.S. Senator from Washington...............     3
Craig, Hon. Larry E., U.S. Senator from Idaho....................     1
Eppink, Jeffrey, Vice President, Advanced Resources 
  International, Inc., Arlington, VA.............................    11
Hochheiser, H. William, Manager, Oil and Gas Environmental 
  Research, Office of Fossil Energy, Department of Energy........     9
McGarity, Professor Thomas O., University of Texas School of Law, 
  Austin, TX.....................................................    60
Morton, Peter A., Ph.D., Resource Economist, Ecology and 
  Economics Research Dept., The Wilderness Society...............    29
Murkowski, Hon. Frank H., U.S. Senator from Alaska...............     7
Phillips, Randle G., Deputy Chief for Programs and Legislation, 
  U.S. Forest Service, accompanied by Larry Gadt, Director for 
  Minerals and Geology Management................................    13
Schaefer, Greg, Director, External Affairs, Arch Coal Inc., on 
  behalf of the National Mining Association, Wright, WY..........    47
Segner, Edmund P., President, EOG Resources, Inc.................    55
Sparrowe, Dr. Rollin D., President, Wildlife Management Institute    41
Thomas, Hon. Craig, U.S. Senator from Wyoming....................     5
Wyden, Hon. Ron, U.S. Senator from Oregon........................     6

 
               FOREST SERVICE'S ROADLESS AREA RULEMAKING

                              ----------                              


                        THURSDAY, APRIL 26, 2001

                           U.S. Senate,    
                            Subcommittee on
                Forests and Public Land Management,
                 Committee on Energy and Natural Resources,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 2 p.m. in room 
SD-366, Dirksen Senate Office Building, Hon. Larry E. Craig 
presiding.

           OPENING STATEMENT OF HON. LARRY E. CRAIG, 
                    U.S. SENATOR FROM IDAHO

    Senator Craig. Good afternoon, everyone. The Subcommittee 
on Forests and Public Lands will convene this afternoon. The 
subcommittee will hear testimony on the energy implications of 
the roadless area rule promulgated by the Clinton 
administration on January 12.
    During the development of this rule, the energy 
implications of the proposal received little note and less 
concern. In retrospect, this was a significant oversight in 
light of today's developing energy crisis.
    As a result of a December 14 document request conducted 
jointly by the House of Representatives, we have learned that 
senior Clinton administration officials met with environmental 
group representatives on December 1 to discuss data from the 
Department of Energy and others on the rule's energy impacts. 
No official record of that meeting exists.
    However, today we will hear testimony from DOE on those 
data and about how they were treated in the rulemaking process. 
This testimony will add to the growing record demonstrating the 
inadequacy of this rule.
    I had originally planned with this hearing to initiate a 
Congressional Review Act evaluation of the roadless area rule. 
However, I am no longer convinced that this rulemaking will 
survive the U.S. court system long enough for Congress to act 
one way or another.
    To date, the rule has spawned eight different lawsuits in 
three separate judicial circuits. Litigants, including 
communities, county governments, Indian tribe interest groups, 
and four States represented by the Democrat and Republican 
governors and attorney generals.
    Based upon public statements by other governors and local 
officials and interest groups, more suits will be forthcoming 
in the near future. Soon the roster of Federal judges reviewing 
the rule will be sufficient to fill positions of a baseball 
lineup card, with a few judges left over.
    By that time, PETA will be leading demonstrations 
protesting all of the innocent animals sacrificed in making the 
briefcases for all the lawyers filing motions in these cases. 
And that of course says nothing of the trees that are being 
mowed down in the creation of the necessary paperwork both in 
the courts and through the U.S. Postal Service. A bit tongue in 
cheek, but a reality of the process.
    Earlier this week the Sacramento Bee reported that last 
year more than 160 million environmental group pitches swirled 
through the U.S. Postal Service, according to figures provided 
by major organizations. That's enough envelopes, stationery, 
decals, bumper stickers, calendars, and personal address labels 
to circle the earth more than two and a half times.
    The courts have not been particularly kind on this effort 
so far. On April 5, U.S. District Court Judge Edward Lodge held 
that the rule constituted an obvious violation of the National 
Environmental Policy Act. The judge wrote that because of the 
hurried nature of this process, the Forest Service was not well 
informed enough to present a coherent proposal or meaningful 
dialogue, and the end result was predetermined.
    Justice hurried on a proposal of this magnitude is justice 
denied. That was a quote of Judge Lodge. The other legal 
challenges cited violations of other statutes beyond NEPA, I 
suspect based upon the record of four oversight hearings by 
this subcommittee that the courts will find additional legal 
infirmities.
    Now, some may argue that the Government's defense of this 
rule was insufficiently robust to properly defend its obvious 
worthy content. However, by granting standing to environmental 
group intervenors, Judge Lodge heard all of the arguments 
available to defend the rule and he expressly rejected each one 
of them. Others will suggest that an appeal to the 9th Circuit 
will remedy this judicial malady. Perhaps an appeal will be 
taken, however the 9th Circuit has developed an extensive body 
of case law supporting the integrity of the NEPA process.
    The appeal of Judge Lodge's decision will require 
appellants, perhaps the same litigants who helped create much 
of the precedent to now argue against its application.
    That could prove a bit awkward for even the most 
intellectually flexible legal minds. Meanwhile, cases will 
proceed in other circuits. The judicial bottom line so far is 
indelible. By spending less time on a national rulemaking 
affecting 58 million acres than it normally would spend on an 
environmental evaluation of an individual medium-sized project 
on a single national forest.
    The Clinton administration broke the law. The court has 
given the Government until May 4 to suggest a remedy. Now it 
will be left to this administration and this Congress to decide 
how best to go forward from here. I hope that we can get back 
to a previously honored process of evaluating roadless areas on 
a forest by forest and a State-by-State basis for their 
potential for inclusion into the National Wilderness System, 
and then act legislatively on that potential.
    It is a remarkable fact that the Clinton administration in 
its 8-year tenure did not send a single national forest 
wilderness proposal to Congress. It is also beyond dispute that 
the Clinton administration had the worst record of any 
administration since the passage of the 1964 Wilderness Act for 
securing statutory wilderness designation.
    I, for one, would like to reverse this sad trend. I invite 
my colleagues from both sides of the aisle to join with us in 
that endeavor. I think the only sound and proper way is to 
evaluate these important lands on a case by case, forest by 
forest basis.
    With that, let me turn to the ranking member of the full 
committee who has joined us this afternoon, Senator Bingaman.
    [A prepared statement from Senator Cantwell follows:]
Prepared Statement of Hon. Maria Cantwell, U.S. Senator From Washington
    Mr. Chairman, I would like to thank you for holding this hearing on 
the Roadless Rule. This rule, which simply precludes new road 
construction on 58 million acres of public land--will result in the 
preservation of open space for recreational uses including mountain 
biking and snowmobiling. It will protect watersheds that are sources of 
clean drinking water for present and future generations. And it will 
keep intact pristine habitat for fish and wildlife.
    We have been through major technological changes in this country, 
and one of the consequences of this wireless revolution is that people 
can now live and work anywhere that they wish. Business no longer ties 
people to urban areas. But what we've gained in mobility, we've lost in 
open space. With the pace of development of open space and cropland 
doubling over the past ten years, preservation of publicly owned open 
space becomes more important and more valuable. America's ``wide-open 
spaces'' are quickly disappearing and cannot be recovered.
    I support the Roadless Rule, and the long-term view it takes on the 
preservation of national forests for future generations. It is a 
reasoned approach, particularly given that the Forest Service already 
has 380,000 miles of roads on Forest Service property and that most of 
these roads are in disrepair. In fact, the Forest Service has an $8.4 
billion road maintenance backlog.
    I am confident that competing uses for public lands could be better 
managed if we focus on improving the condition of existing roads on the 
millions of acres of forest lands that remain open to road building and 
leasing for timber, oil, gas and coal.
    The Roadless Rule is the result of a massive three-year effort by 
the Forest Service and the Department of Agriculture. The rulemaking 
process included over 600 public meetings and the receipt and review of 
1.6 million public comments in three separate stages of the process.
    The comments that were received and given due consideration include 
the estimates of resources in Roadless areas submitted by the 
Department of Energy that we are discussing today. In the state of 
Washington alone, 60,000 people submitted comments and over 96 percent 
of the comments supported the rule. The Roadless Rule does not change 
the natural environment. What it does is leave nature alone. Leaving 
nature alone places different requirements on the Forest Service in 
preparing an Environmental Impact Statement than does development which 
makes sense if the point is to protect our open spaces and remaining 
natural resources. I believe that the EIS the Forest Service prepared 
meets and surpasses the legal requirements.
    I am extremely concerned by reports in today's Washington Post that 
the White House has instructed the Department of Justice lawyers to 
find a way to ``set aside'' this regulation until the Administration 
can produce a less restrictive rule or eliminate it altogether. I find 
this particularly troubling given Attorney General Ashcroft's 
commitment to me in his confirmation hearing that he would defend any 
rule that has the force and effect of law, as this rule does.
    I completely respect the right of the Bush Administration to 
disagree with the Rule, and to explore options to modify or even to 
repeal the rule. But let us be clear--this is a final rule. It has been 
published in the Federal Register and it is subject to judicial review. 
Any attempt to alter this rule must be accomplished through a process 
that complies with the Administrative Procedures Act and provides an 
opportunity for notice and comment. The point of the Administrative 
Procedures Act is to make government provide good justifications for 
its policies--to open government decision making to public scrutiny--
and to ensure that views on all sides of an issue are heard.
    And because this rule is a reasonable policy that sets forth 
justified rationales for protecting a portion of our national forests, 
I believe that the Administration faces serious hurdles in successfully 
repealing this rule.
    If the Administration chooses to modify this rule, it must not do 
so by procedural maneuvering--by issuing further extensions or stays--
or by non-defense of a valid rule in the hope of favorable judicial 
intervention.
    Yet, that is exactly the sort of maneuvering that the 
Administration appears to be contemplating. That is contrary to the 
Attorney General's commitment to me, and it is contrary to sensible 
balancing of energy needs and preservation of open space. This Rule is 
a well-considered policy and it should be allowed to take effect on May 
12.

         STATEMENT OF HON. JEFF BINGAMAN, U.S. SENATOR 
                        FROM NEW MEXICO

    Senator Bingaman. Thank you very much. I welcome the 
witnesses and appreciate the chance to hear the testimony. I do 
think it would be very useful to have a record and clarify what 
this rule which is now being reviewed actually does in the way 
of restricting development or use of our public lands and what 
it does not do. My impression is that there's substantial 
misconception out there about that, and so I think that would 
be useful.
    I would be interested in hearing from the Forest Service as 
to the justification they believe exists for continuation of 
the rule, and the impact that it will have on our individual 
States and on oil and gas production and on mining activity as 
well. I think those are issues that are very valid and clearly 
ones that I think we need to know more about, thank you.
    Senator Craig. Thank you, Senator. Let me now turn to 
Senator Akaka, do you have any opening statement.

        STATEMENT OF HON. DANIEL K. AKAKA, U.S. SENATOR 
                          FROM HAWAII

    Senator Akaka. Thank you very much, Mr. Chairman, for 
calling this hearing and giving us an opportunity to hear from 
the Department of Energy and the Department of Agriculture in 
the mining and petroleum industry, and wilderness groups 
regarding the implications of the U.S. Forest Service's 
roadless area rules.
    Some of you may be aware that Hawaii and the Native 
Hawaiian culture are strongly linked to the natural world 
around us. For centuries we have lived on Pacific islands 
interdependently with the world around us, the land and the 
ocean.
    The State of Hawaii has an extensive forest reserve system, 
additional areas which are designated as natural area reserves, 
State wilderness preserves and even private reserves. Although 
we do not have national forests in Hawaii, the State of Hawaii 
is playing its part in reserving areas for native ecosystems of 
trees and animals.
    The Forest Service's roadless area initiative has 
identified areas in national forests that should remain 
roadless. However, we should all remember that under this rule 
a roadless area does not mean it is not useful to humans. There 
are already exceptions to the rule for existing leases, treaty 
rights, and human health and safety.
    Roadless areas are useful as harbors for wildlife, filters 
and producers of clean water, and areas where humans can hunt, 
fish, and hike. In other words, the roadless policy doesn't 
mean that we can't use national forests.
    The Forest Service has stated that the total oil and gas 
production from the entire National Forest System (not just 
roadless areas) is currently about .4 percent of the current 
national production. It further estimates that resources in 
roadless areas may be only about half of that figure which puts 
it at less than .2 percent of the total oil and gas production.
    This appears to be a small amount of oil and gas, in 
inaccessible areas with no roads, which may not be economically 
recoverable, depending on future market prices. These 
resources, even if opened tomorrow, are unlikely to be 
available for up to 10 years or more. Opening roadless areas 
will not help our short-term energy crisis.
    The recent study contracted by the U.S. Department of 
Energy argues that the USFS underestimated the energy resources 
in roadless areas. The study was based on a sample of States 
used public and proprietary data not available for replication 
and made questionable assumptions about the distribution of the 
resources. All studies have inherent weaknesses, but I wish I 
had more confidence in this quickly completed study.
    I am not convinced that we should overturn the roadless 
policy on such speculative information. The question we need to 
ask is whether the amount of oil and gas resources in roadless 
areas is greater and or more compelling than available oil and 
gas resources elsewhere.
    There are Bureau of Land Management lands, offshore 
reserves, national forest areas outside of roadless areas, 
State lands and private lands. Given the information I have 
seen so far, it makes no sense to open roadless areas for such 
a small percentage of overall resources that could be 
available.
    I want to thank you, Mr. Chairman for this opportunity to 
make a statement, and I look forward to this hearing.
    Senator Craig. Now, let me turn to our colleague from 
Wyoming, Senator Craig Thomas.

         STATEMENT OF HON. CRAIG THOMAS, U.S. SENATOR 
                          FROM WYOMING

    Senator Thomas. Thank you, Mr. Chairman. I appreciate your 
holding this hearing. I have to run to another confirmation 
hearing in a few minutes but I do want to thank you for this 
and I subscribe to what you said in your opening statement. I 
would like to specifically mention my friend Greg Schaefer who 
will be here testifying from Wyoming and to welcome him here.
    I just would like to say that I think what we're talking 
about here in the broader sense is access. Access to resources, 
access to public lands, access to, you know, some people have 
tried to paint the picture that if you have access you suddenly 
are going to ruin the resource. It doesn't need to be that way 
and there's a great deal of evidence that it's not. You can 
have access and you can utilize the resources without doing 
irreparable damage.
    Furthermore, and this is a little outside the function 
here, I suppose, on energy but I'll tell you what. I've heard 
from all kinds of folks who say, look, I want access to my 
public lands, to my forest, disabled veterans, lots of people. 
That doesn't mean you have to have roads everywhere, obviously. 
But there ought to be a process that's more workable than this 
one and it seems to me it ought to go with the forest plan so 
that people have some input and do things.
    I happened to go to a number of these meetings that were 
held by the Department on roadless areas, and I can tell you, 
that at the time they were doing it, the chief talked a lot 
about having all these meetings, no one even really knew what 
they were talking about, not even the forest people on the 
ground had a real idea of what the rule meant or what it was to 
mean. And so all of those hearings, many of them did not have a 
great deal of substance.
    I do think we need to look at it. I think we need to come 
up with some reasonable solution and I appreciate you're having 
this hearing, sir.
    Senator Craig. Thank you, Senator. Now let me turn to the 
ranking member of the subcommittee, Senator Ron Wyden.

           STATEMENT OF HON. RON WYDEN, U.S. SENATOR 
                          FROM OREGON

    Senator Wyden. Thank you, Mr. Chairman. I very much 
appreciate the chance to be here if only for a few minutes. 
This early in the session we shouldn't have all these things 
going on simultaneously. But I'm going to be in and out and I 
appreciate the chance to make a brief opening statement.
    Mr. Chairman, as you know, from the beginning of this 
debate I've made it clear that I would support significant 
additions in terms of roadless protection because protecting 
additional unspoiled areas can produce gains for fish runs, 
habitat and watershed quality that very often outweigh the 
benefits of commercial development on those lands.
    At the same time, as you and I have talked about, I 
strongly support the multiple use concept and I feel that you 
should not evaluate roadless rules in a vacuum, which was why 
our county payments legislation was so important. It begins to 
show that you can have an approach that protects treasures and 
at the same time is sensitive to local economics.
    I haven't had a chance to look at your opening statement in 
depth, Mr. Chairman, but I want to say that the comment that I 
see in your statement on page 5 really is very encouraging to 
me, and I would like us to look at trying to work, as we did in 
the county payments area, on this idea of trying to evaluate 
roadless areas on a forest by forest and State-by-State basis 
for potential inclusion in the National Wilderness System and 
then move forward, as you suggest, legislatively.
    I think that's a very constructive idea. I think we showed 
in the county payments debate that we could get away from the 
kinds of issues that are polarizing. You and I have talked 
about my concerns about the Forest Service when energy 
production experts say that the Forest Service is responsible 
for producing only about .4 percent of our national energy 
production. We get into a pretty polarized situation with that 
debate comparing energy production and the environment.
    Your suggestion in your prepared remarks about how to start 
looking at this national wilderness system in a constructive 
way is something that I am very interested in and I want to 
make it clear as the ranking member of this subcommittee that I 
look forward to working with you on it and appreciate you're 
making the suggestion.
    Senator Craig. Well, Ron, thank you very much. As you know, 
if this committee, either the full committee or the 
subcommittee and all of its members get ample opportunity to 
examine the forest, either on a State-by-State, system by 
system or forest by forest basis, and we bring the experts 
before us based on the knowledge that's available and we 
analyze the given areas, then we can make choices.
    If there is a potential gas reserve, we can decide whether 
it ought to be set aside or left accessible, and that is the 
kind of conscious, open decision making we ought to be about 
instead of broad sweeping areas that have not had that 
opportunity of examination and the kind of detailed work that 
really is the responsibility of the authorizing committee of 
the kind that you and I are involved in here. And so I 
appreciate those comments.
    Let us turn to our panelists today and we thank you all for 
being with us. I'm going to ask, panel one, first of all, 
William Hochheiser, Manager, Oil and Gas Environmental Research 
Office of Fossil Energy, U.S. Department of Energy in 
Washington, D.C. to testify and he is accompanied by Jeffrey 
Eppink of Advanced Resources International of Arlington, 
Virginia who also has testimony, and so we will start with you, 
Mr. Hochheiser.
    Just a moment. Before you get started, the chairman of the 
full committee has just arrived and we will ask him if he has 
any opening comments before we turn to the panel. Senator 
Murkowski.

      STATEMENT OF HON. FRANK H. MURKOWSKI, U.S. SENATOR 
                          FROM ALASKA

    The Chairman. You're very kind, Mr. Chairman. I do 
appreciate the accommodation. I will try to be brief because I 
know the witnesses have been with us for some time. But I join 
with you in expressing my concerns over what I consider a very 
cavalier treatment of national energy needs in the roadless 
rulemaking, the natural gas, the low sulfur coal, phosphate 
reserves, these are put off limits through rulemaking and I 
look forward to the testimony today with regard to those.
    As we look at our energy policy or lack of energy policy, 
it's not much of a point to point fingers. The question is how 
do we go ahead from here. But I think in the case of the 
roadless rule, in the midst of what the court has already 
criticized as a ``hurried process''.
    If there's a responsibility for reviewing the decision to 
put permanently off limits significant energy resources, and 
this was a little more than a passing note, if you would, in 
the rush to preconceive judgment. There's absolutely no 
question in my mind about that. I think that is wrong. I think 
it is a disservice to every--both elderly and low-income 
citizen of the United States concerned about the spiralling 
energy costs.
    Nevertheless, I think it is indicative of a denial in this 
country of our energy policies as they apply to the increased 
demand and the declining supply. I think energy development 
decisions should be made on a case by case basis with thorough 
environmental analysis based on sound science and not emotion.
    That's why I hope we will shortly see the administration 
review this matter and, you know, it's been pointed out to me 
that sometimes a public policy has to reach the point of high 
comedy or satire before we can get any sense of perspective to 
make intelligent decisions.
    I think the issue has probably now reached the point where 
we're seeing comedians, I think 2 weeks ago Dennis Miller 
commented and I quote, ``that every other vehicle in this 
country is a Lincoln Navigator with an Earth First bumper 
sticker.''
    Now, I don't think you can blame George W. Bush for not 
being able to let you have it both ways. But we do have a 
problem here and as a consequence I think that the procedure of 
how we go ahead and review the final record of decision is 
paramount in addressing a portion of this. There's no summary 
of the meetings in the Forest Service rulemaking document as 
the Administrative Procedures Act requires. Consequently, some 
of those ex parte contracts between previous administration 
officials and environmental groups. After the close of the 
public comment period and after the final EIS was published 
represents, I think, another statutory violation which the 
courts will undoubtedly be asked to review.
    But in the meantime, many people in this country are going 
to suffer as a consequence of the time delay, and that is 
unfortunate. You know, interestingly, the same week that Judge 
Lodge was overturning the roadless rule, Judge James Singleton 
in anchorage was throwing out the claim administration's 1999 
plan for the Tongass National Forest.
    To give you some idea of the complexity of this, this plan 
had been developed over 10 years, and $13 million, had been 
expended for the plan. But what good is the plan? Obviously, 
it's been revised. It's never had an opportunity to work. Now 
Judge Singleton ruled against the administration, the Clinton 
Tongass plan in part because Undersecretary Lyons violated the 
law by having ex parte contracts with parties affected by his 
review of the plan.
    This thing has just gone, it's ridiculous. You have to 
focus in on the objective behind this and in this harvesting of 
the national forest, you have to get the Sierra club credit. 
They come out and say it. The rest of it is subterfuge.
    You know, I visited southeastern Alaska in the last couple 
weeks and on-ground social and economic impacts of the decision 
are devastating. I held a town hall meeting in Ketchikan and 
had grown men crying because they felt that they had done 
everything possible to ensure the continuity of the small 
timber industry we have left.
    But they couldn't get the timber. Now, out of a 17 million 
acre forest the proposal was to allow 4 percent, and now that's 
tied up in litigation. Now if we don't do something about it, 
it isn't going to be done, Mr. Chairman.
    And that's why I commend you in re-addressing this matter 
and the severity of it and the realization that what have we 
taken? 21 trillion cubic feet of gas on lands that are affected 
by this Federal roadless withdrawal, taken them off limits for 
the benefit of the consumer in the United States. I think 
that's irresponsible. I wish some of the folks that were 
responsible for it were here to explain it to us. Thank you.
    Senator Craig. Well, Mr. Chairman thank you very much. Now 
we will turn to our panelists and we thank you gentlemen for 
your patience. Let me turn first of all to William Hochheiser. 
Again, Manager of Oil and Gas, Environmental Research Office, 
Fossil Energy, U.S. Department of Energy.

   STATEMENT OF H. WILLIAM HOCHHEISER, MANAGER, OIL AND GAS 
ENVIRONMENTAL RESEARCH, OFFICE OF FOSSIL ENERGY, DEPARTMENT OF 
                             ENERGY

    Mr. Hochheiser. Thank you, Mr. Chairman for the opportunity 
to speak today on the Department of Energy's work regarding the 
impacts of the Forest Service roadless area conservation 
rulemaking on the development of oil and natural gas and coal 
resources.
    On October 12, 2000, staff of the Department of Energy's 
Office of Fossil Energy met with DOE's Deputy Secretary, T.J. 
Glauthier, concerning the impacts of the roadless rule on the 
exploration and production of oil, natural gas, and coal 
resources.
    He requested that our office conduct an analysis of these 
potential impacts and we tasked Advanced Resources 
International, ARI, under an existing support contract to 
perform an oil and gas analysis. And additionally I gathered 
information on the coal impacts.
    ARI completed its analysis of technically recoverable oil 
and gas resources under the inventoried roadless areas in mid-
November and they presented it to a meeting convened by the 
Office of Management and Budget on November 20, 2000.
    Attending that meeting were representatives from the Forest 
Service, the Council on Environmental Quality, OMB and DOE. 
Jeff Eppink, sitting here to my right from ARI is going to 
present the details of that analysis in separate testimony, but 
I will just summarize the results. Between 3.5 and 23.1 
trillion cubic feet or Tcf of technically recoverable natural 
gas are estimated to underlie the roadless areas in the Rocky 
Mountain region.
    The mean estimate within that range is 11.3 Tcf of gas. 
Between 120 million and 1.2 billion barrels of technically 
recoverable oil are estimated to underlie the same roadless 
areas with a mean estimate of 550 million barrels. Now, 
comparing these estimates with the National Petroleum Council 
natural gas study from December 1999, the roadless rule could 
add 9.4 Tcf of gas to the resource they estimated to be off 
limits to the development in the Rocky Mountain region. That is 
a 32 percent increase.
    Perhaps most importantly, it is estimated that 83 percent 
of the affected gas, that's 9.3 Tcf, 83 percent is located 
under 2.7 million acres of roadless area. That's 5 percent of 
the 58 and a half million acres covered by the roadless rule. 
So 83 percent of the gas could be found under 5 percent of the 
area.
    As a result of questions during and following the November 
20 meeting, DOE further tasked ARI to estimate how much of the 
technically recoverable gas would be economically recoverable 
and to estimate how technology advances might affect the amount 
of technically recoverable gas. The results were delivered on 
November 30.
    Basing their methodology on the NPC study, Advanced 
Resources estimated that 7.7 to 8.5 trillion cubic feet of gas, 
that's 68 to 75 percent of the technically recoverable 
estimate, would be economic at prices of three to four dollars 
per thousand cubic feet. Additionally, they calculated that 
advances in technology would increase the mean technically 
recoverable gas from 11.3 up to 13.5 Tcf by 2015.
    Now with regard to the impacts on coal, I gathered 
information from mining companies from the Forest Service 
Minerals Group and electric utilities and my results were 
written in a white paper dated November 30 that I forwarded to 
the Forest Service and to OMB.
    In summary, I estimated that in Colorado and Utah the 
roadless rule could make at least 500 million tons of high 
quality economic coal inaccessible. This coal would have a 
value of $7 to $10 billion dollars.
    In western Colorado, three active coal mines are hemmed in 
by roadless areas. These mines currently produce 16 million 
tons per year of bituminous, high Btu, low sulfur coal. In 
general, the impact on each of these three mines would be to 
preclude operators from extending operations into currently 
unmined areas. As portions of the seams are mined, normal 
practice would be to expand the mining operations to sustain 
production. Hence, if this cannot be done production from the 
existing areas would eventually decline and these mines would 
be forced to close prematurely.
    In central Utah, three tracts in the roadless areas could 
contain 185 tons of economic coal worth 2.8 to 3.7 billion 
dollars. One of these tracts is adjacent to an operating coal 
mine which needs these resources for future expansion. This 
mine produces 6 million tons per year and employs 252 people 
with an annual payroll of over $19 million.
    The Forest Service added the results of the analysis to the 
text of the mineral section of the regulatory impact analysis 
and to the summary table of the rule's costs and benefits. The 
revised appendix described the DOE analysis and included 
additional information we provided on the growing oil and gas 
activity in the Rocky Mountain region.
    After review of this information, the Forest Service 
concluded that the additional information provided by the 
Department of Energy did not change the magnitude of the 
effects as disclosed in their final environmental impact 
statement.
    DOE believes that the amount of resources potentially 
impacted by the roadless rule could be significant. With U.S. 
demand for natural gas projected to grow significantly in the 
next 15 to 20 years according to Energy Information 
Administration, the National Petroleum Council and others, 
interest for development of natural gas resources on Federal 
lands will increase. Thank you, and I'll be happy to answer any 
questions.
    Senator Craig. Thank you very much, now let me turn to 
Jeffrey Eppink, advanced resource international and your 
relationship to DOE was a contractor.
    Mr. Eppink. That's correct.
    Senator Craig. To study and supply information.
    Mr. Eppink. That's correct.
    Senator Craig. Please proceed.

STATEMENT OF JEFFREY EPPINK, VICE PRESIDENT, ADVANCED RESOURCES 
               INTERNATIONAL, INC., ARLINGTON, VA

    Mr. Eppink. Good afternoon, Chairman Craig and members of 
the committee. My name is Jeffrey Eppink, I'm a vice president 
with Advanced Resources International, an energy consulting 
firm based in Arlington, Virginia. At Advanced Resources we 
have conducted a number of oil and gas resource assessments in 
recent years. I participated in the National Petroleum 
Council's 1999 study on natural gas and I'm currently 
conducting a major study on the impacts of leasing stipulations 
upon natural gas resources, which I'll elaborate upon later.
    Today, I'd like to present an analysis that we conducted 
last fall concerning undiscovered oil and gas resources 
associated with the then-proposed Forest Service inventoried 
roadless areas. We performed the study for the Department of 
Energy as a task under a multi-year technical and analytical 
support contract to the Department.
    I will first discuss briefly how this study was conducted, 
present conclusions, and then briefly mention additional 
similar studies that we are conducting.
    The roadless study was comprehensive and a map will be put 
up. The Rocky Mountain region that it covers, New Mexico to 
Montana plus a portion of North Dakota contains a vast majority 
of oil and gas on Federal lands. In the analysis we inventoried 
the so-called inventoried roadless areas which are shown in red 
on the map. These areas without which road access would 
effectively prohibit oil and gas resource development.
    Within the roadless areas we also discounted areas of high 
slope which are shown in dark red on the map. These are areas 
of mountain tops, ridges, and similar features which we assumed 
to be less prospective because they would be locations where 
it's physically difficult to site a drill rig or because they 
represent difficult geologic settings for oil and gas to occur.
    We used resource estimates from several expert groups in 
the analysis, all of which are publicly available. The vast 
majority of resource play data was taken from the USGS 1995 
national assessment. For a few selected plays where analysis 
had been conducted subsequent to the 1995 assessment, we 
supplemented the USGS data with resource estimates conducted by 
ourselves, the Utah Geological Survey and the potential gas 
committee and industry group.
    The areas of occurrence of resources in the analysis are 
defined by the intersection of the resource plays with the 
roadless areas. Estimates of high, low, and mean technically 
recoverable oil and gas resources were made.
    High estimates have low probability for occurring. 
Conversely, low estimates have a high probability for 
occurring. Technically recoverable resources are those that are 
recoverable using current technology. The results show that the 
roadless areas contain a range of three to 23 Tcf of natural 
gas with a mean value of 11 Tcf, at minor amounts to over 1 
billion barrels of oil with a mean value of 550 million barrels 
of oil.
    Further in the analysis we examined the issue of access 
using guidelines established in the 1999 NPC study. We 
determined that for the mean natural gas resources in the Rocky 
Mountains, 7 Tcf of resources presently under standard lease 
terms will become subject to access restrictions. You can see 
this on the chart where in the pre-roadless conditions we have 
7 Tcf of under standard lease terms, that moves to the closed 
development column with the implementation of the roadless 
rule.
    Further, the implementation of the roadless areas will 
raise natural gas resources close to development estimated by 
the NPC at 29 Tcf to 38 Tcf, an increase of 32 percent.
    To examine the economic impacts for eliminating access to 
these technically recoverable resources, we also provided a 
cursory examination of economically recoverable natural gas 
resources. Based on the mean resource values and prices of 
three and four dollars an MCF, about 68 to 75 percent of the 
technically recoverable gas can be recovered economically, 
representing $23 to $34 billion of economic activity.
    We also estimate that the nine largest resource plays in 
the study area comprise about 83 percent of the total impacted 
resources. We determined that these nine plays represent less 
than 5 percent of all roadless areas nationwide, a robust 
conclusion from policy analysis point of view. And you can see 
that on the map here where the plays are in the bright colors, 
the roadless areas are in the red, the green, by the way, is 
areas where there are oil and gas resources of one kind or 
another, according to USGS.
    I mentioned earlier that we're conducting ongoing resource 
studies. As a follow up to the 1999 NPC study we are currently 
conducting a major study of the cumulative impacts upon 
undiscovered natural gas resources of leasing stipulations. We 
are conducting that study on a detailed township by township 
basis. The study we are now just concluding covers southern 
Wyoming and northwestern Colorado, the greater Green River 
basin.
    We will next be examining the Uinta-Piceance Basin in Utah 
and Colorado. The studies are being conducted for the 
Department of Energy and we'd be happy to share those results 
with you when they are available.
    I appreciate this opportunity to present our roadless 
analysis to you and would be glad to answer any questions. I 
might add that the analysis can be found on the Internet at the 
website listed in the written statement. Thank you.
    Senator Craig. Mr. Eppink, thank you, very much. We've just 
been joined by Senator Cantwell. Do you have an opening 
statement you would like to make before we proceed?
    Senator Cantwell. Thank you, Mr. Chairman. Perhaps when we 
get to questions I'll have some comments.
    Senator Craig. That is certainly fine. Thank you. So we 
will now turn to Randy Phillips, Deputy Chief of Programs and 
Legislation for the U.S. Forest Service. He's accompanied by 
Larry Gadt, Director of Minerals and Geology Management, U.S. 
Forest Service.

STATEMENT OF RANDLE G. PHILLIPS, DEPUTY CHIEF FOR PROGRAMS AND 
 LEGISLATION, U.S. FOREST SERVICE, ACCOMPANIED BY LARRY GADT, 
          DIRECTOR FOR MINERALS AND GEOLOGY MANAGEMENT

    Mr. Phillips. Thank you, Mr. Chairman. It's nice to see you 
again and be in front of this committee. And thank you for the 
opportunity to talk about the roadless rule. With your 
permission, I'll summarize my comments and ask the full text be 
submitted for the record.
    Mr. Chairman, on January 20 of this year, the assistant to 
the President and White House Chief of Staff issued a 
memorandum to agencies requesting that all new rules and 
regulations not yet in effect be delayed for 60 days to give 
the administration time to review those rules.
    In accordance with that direction, the Secretary delayed 
the effective date of the roadless area conservation final rule 
from March 13 to May 12 of this year. Now because the roadless 
rule is currently under review by the Department of Agriculture 
and because of litigation, my comments today will be limited to 
the effects documented in the final EIS and the final 
regulatory impact analysis that was prepared in conjunction 
with the final rule.
    In brief, the roadless rule would generally prohibit road 
construction and reconstruction in inventoried roadless areas 
on 58.5 million acres of national forest and grasslands. The 
prohibition of road construction and reconstruction is 
anticipated to have some impact on leaseable energy minerals. 
The final rule would not affect road construction and 
reconstruction providing access to and development within 
existing mineral lease boundaries or access needed for existing 
rights such as private or State-owned mineral deposits.
    The prohibitions would likely prevent expansion of existing 
mineral lease areas into adjacent inventoried roadless areas or 
exploration and development of new mineral leases except in 
situations where development can be done without road 
construction.
    In 1998, over 75 million tons of coal produced from Federal 
leases on national forest lands accounted for about 7 percent 
of total national production and about 22 percent of production 
from Federal leases. The final roadless rule could affect 
exploration for or development of known coal reserves on 
approximately 61,000 acres not currently leased in inventoried 
roadless areas. These reserves are estimated at between 237 
million and 1.3 billion tons of coal near or adjacent to active 
mines.
    In addition, there are over 2.5 million acres of 
inventoried roadless areas with varying levels of potential to 
obtain coal resources suitable for commercial development. 
There are also other coal resources in inventoried roadless 
areas, however the extent of the resource is not known.
    The mining of coal from inventoried roadless areas is not 
extensive, but there are active mines on the Grand Mesa, 
Uncompahgre, Gunnison National Forests in Colorado and the 
Manti-Lasal National Forest in Utah. On the Grand mesa, 
Uncompahgre, Gunnison, Arch Coal is interested in expansion 
into a contiguous inventoried roadless area. Although the mine 
is an underground operation, expansion may require road access 
for exploration and development drilling and construction of 
ventilation shafts. If production cannot be expanded into 
inventoried roadless areas, the mine could close within 2 to 5 
years when current reserves are exhausted. Potential effects 
from closure of this mine could include the loss of 361 direct 
jobs, and affect 2,119 total jobs.
    Currently, over 6 million acres of National Forest System 
land is under lease for oil and gas. This includes 
approximately 759,000 acres of inventoried roadless areas 
considered to have high potential for oil and gas leasing.
    The areas currently under lease will not be materially 
affected by the roadless rule. Near the completion of the 
roadless area, conservation, FEIS, the Department of Energy 
raised additional concerns about the potential impacts on 
production of coal, oil and gas resources if the final roadless 
rule did not allow road building in support of exploration and 
development of these leaseable minerals.
    The Forest Service evaluated the information provided by 
the Department in accordance with agency procedures. The agency 
concluded that there was no change in the magnitude of the 
effects as disclosed in the FEIS. The Forest Service included 
the DOE information in the regulatory impact analysis that 
accompanied the final rule.
    Using information from the Department of Energy, an 
estimated mean 11.3 trillion cubic feet of natural gas and 550 
million barrels of oil could potentially underlie inventoried 
roadless areas. They also estimate that between 63 percent and 
78 percent of these potential reserves may be economically 
recoverable.
    DOE estimates that historically about one-third of the oil 
in place at known reservoirs is recovered. Department of Energy 
also estimates that about 2.7 million acres of inventoried 
roadless areas contain about 83 percent of the natural gas 
resource in inventoried roadless areas. There's nothing in the 
final roadless rule that would prohibit construction of new 
power lines or oil and gas lines in inventoried roadless areas. 
However, having to construct these facilities without the use 
of roads would generally increase the construction and 
maintenance costs.
    In summary, while the roadless rule does not impact 
existing mineral leases and outstanding rights, it could impact 
expansion of existing leases and exploration and development of 
new mineral leases on National Forest System lands that require 
road construction or reconstruction in inventoried roadless 
areas. Outside of known reserves such as active coal mines in 
Colorado, the actual impacts can only be estimated.
    However, in those identified communities with a history of 
mining dependence, prevention of existing mining expansion due 
to the roadless rule could likely have a significant impact. 
This concludes my statement. I'd be happy to answer any 
questions, Mr. Chairman.
    [The prepared statement of Mr. Phillips follows:]
Prepared Statement of Randle G. Phillips, Deputy Chief for Programs and 
                    Legislation, U.S. Forest Service
    Mr. Chairman and members of the subcommittee: Thank you for the 
opportunity to appear before you today to talk about the potential 
impacts of the roadless rule on energy mineral leasing from National 
Forest System lands. I am Randy Phillips, Deputy Chief for Programs and 
Legislation, and with me today is Larry Gadt, Director for Minerals and 
Geology Management of the Forest Service. I am here today to discuss 
with you the effects of the roadless rule based on the analysis in the 
Roadless Area Conservation Final Environmental Impact Statement (FEIS) 
that was released on November 9, 2000 and the final rule that was 
published on January 12, 2001.
    As you know, on January 20, 2001, the Assistant to the President 
and White House Chief of Staff issued a memorandum to agencies 
requesting that all new rules and regulations not yet in effect be 
delayed 60-days to give the Administration time to review the rules. In 
accordance with that direction, the Secretary delayed the effective 
date of the Roadless Area Conservation final rule from March 13, 2001, 
until May 12, 2001.
    The roadless rule is currently under review by the Department of 
Agriculture, so my comments today will be limited to the effects 
documented in the FEIS and the final regulatory impact analysis that 
was prepared in conjunction with the final rule.
    In brief, the roadless rule would generally prohibit road 
construction and reconstruction in inventoried roadless areas (IRAs) on 
58.5 million acres of national forests and grasslands. The prohibition 
of road construction and reconstruction is anticipated to have some 
impact on leasable energy minerals. The final rule would not affect 
road construction and reconstruction providing access to and 
development within existing mineral lease boundaries or access needed 
for existing rights, such as private or State owned mineral deposits. 
The prohibitions would likely prevent expansion of existing mineral 
lease areas into adjacent inventoried roadless areas or exploration and 
development of new mineral leases except in situations where 
development can be done without road construction.
    Before I talk about the impacts of the rule on energy mineral 
leasing, I first want to briefly discuss energy mineral leasing on 
National Forest System lands.

                               BACKGROUND

    Leasable mineral resources are those mineral resources that can be 
explored for and developed under one of several mineral-leasing acts. 
They include energy resources such as oil, gas, coal, and geothermal.
    Exploration and development of oil, gas, coal, and geothermal 
resources are discretionary activities, meaning that leasing of them 
may or may not be allowed. The Bureau of Land Management (BLM) has the 
authority to lease minerals on National Forest System lands; however, 
they may only be leased subject to Forest Service concurrence.
    Environmental impact statements are generally prepared before the 
issuance of mineral leases in inventoried roadless areas. The effects 
of any future lease exploration or development are also addressed in 
subsequent environmental analysis.

                      EFFECTS OF THE ROADLESS RULE

    Locatable mineral access is a right granted by statute and 
therefore not materially affected by the subject to the road 
prohibition. Saleable minerals are subject to the road prohibition, and 
therefore eliminated as a permissible activity within inventoried 
roadless. However, the economic effect of eliminating saleable minerals 
is insignificant because saleable minerals (sand, gravel, limestone for 
aggregate, etc.) are not economic unless very close to market due to 
haul costs, therefore there is a minimal amount of this activity in 
roadless.
    For leasable energy minerals, the road prohibition would not 
materially affect road construction and reconstruction providing access 
to and development within existing lease boundaries, even if those 
leases are extended beyond their current termination dates. However, 
the road prohibition would likely prevent expansion of existing mineral 
lease areas into adjacent inventoried roadless areas. In many cases, 
such expansion is more economically advantageous to the operator than 
developing new deposits.
    Where reserves are known to occur in inventoried roadless areas, 
the road prohibition is likely to preclude future development, except 
in situations where development can occur without road construction. 
The economic impacts of precluding development of an area depends on a 
variety of external factors that would lead to development including 
market prices, transportation, access, plus other factors such as the 
availability of alternate resources in areas that may be available for 
leasing (either on other National Forest System lands or on other 
ownerships). Since mineral deposits tend to be concentrated in some 
geographic areas, it is likely that the impacts on mining jobs and 
income would also be concentrated in a few areas. The most immediate 
economic effects are associated with current proposals to expand 
existing leases into adjacent inventoried roadless areas for phosphate 
and coal mining.
Coal
    In 1998, over 75 million tons of coal produced from Federal leases 
on National Forest System land accounted for almost 7 percent of total 
national production, and about 22 percent of production from Federal 
leases.
    The final roadless rule could affect exploration for or development 
of known coal reserves on approximately 61,200 acres not currently 
leased in inventoried roadless areas. These reserves are estimated at 
between 237 million and 1.3 billion tons of coal near or adjacent to 
active mines. In addition, there are over 2.5 million acres of 
inventoried roadless areas with varying levels of potential to contain 
coal resources suitable for commercial development.
    Some of these reserves or resources would likely be developed 
within the next 5 years if offered for lease. There may also be other 
coal resources in inventoried roadless areas. However, the extent of 
the resource is not known and there is no demonstrated industry 
interest in these.
    The mining of coal from inventoried roadless areas is not 
extensive, but there are active mines on the Grand Mesa, Uncompahgre 
and Gunnison National Forests (GMUG) in Colorado and the Manti-Lasal 
National Forests in Utah.
    On the GMUG, Arch Coal is interested in expansion into a contiguous 
inventoried roadless area. Although the mine is an underground 
operation, expansion may require road access for exploration and 
development drilling, and construction of ventilation shafts. The mine 
currently produces about 7 million tons per year. If production cannot 
be expanded into inventoried roadless areas, the mine could close 
within two to five years, when current reserves are exhausted. 
Potential effects from closure of this mine could include the loss of 
361 direct jobs and affect 2,119 total jobs.
    Two other operating mines adjacent to roadless areas on the GMUG 
could also be affected. Data was not available on when current reserves 
may be depleted for these mines, but together the two mines produce 
about 9 million tons per year and employ 368 people. If future 
expansion of these operations is precluded by the road prohibition, and 
no alternative sources of production are economically attractive, then 
these mines could be closed after current reserves under lease are 
mined.
    There are also three tracts with known recoverable coal reserves on 
the Manti-Lasal National Forest that currently are not under lease. Two 
of the potential tracts have relatively small recoverable reserves, but 
the third tract has an estimated 135 million tons of recoverable 
reserves, of which 50 million tons is within inventoried roadless 
areas. Included in the recoverable reserve estimate are about 22 
million tons of recoverable reserves owned by the State of Utah. Access 
to coal owned by the State of Utah would be guaranteed, as would access 
to any privately held rights. This tract would require development 
facilities in an inventoried roadless area, which may preclude 
development of the rest of the tract once the State's portion of the 
reserve is extracted.
Oil and Gas
    Federal leases are an important source of oil and gas production, 
but most of the production is from off-shore leases. Production from 
national forests and grasslands currently accounts for only 0.4 percent 
of total U.S. oil and gas production. However, interest may increase in 
response to increasing prices and demands. Although much of the 
increased development is expected to be off-shore, a number of national 
forests and grasslands either have current leases, or have applications 
for permits to explore for natural gas.
    Currently over 6 million acres of National Forest System land is 
under lease for oil and gas. This includes approximately 759,000 acres 
of inventoried roadless areas considered to have high oil and gas 
potential under lease. The areas currently under lease will not be 
materially affected by the roadless rule.
    Near the completion of the Roadless Area Conservation FEIS, the 
Department of Energy (DOE) raised additional concerns about the 
potential impacts on production of coal, oil, and gas resources if the 
final roadless rule did not allow road building in support of 
exploration and development of these leasable minerals. After being 
informed about these concerns, the Forest Service evaluated the 
information provided by DOE, in accordance with agency procedures under 
the National Environmental Policy Act for new information. After 
careful review of the information provided, the agency concluded that 
there was no change in the magnitude of the effects as disclosed in the 
FEIS. The Forest Service included the DOE information in the regulatory 
impact analysis that accompanied the final rule.
    Department of Energy, undertook an analysis that focused on the 
potential impacts to undiscovered oil and gas resources in the two U.S. 
Geological Survey (USGS)-defined Rocky Mountain regions. Overlaying 
USGS oil and gas ``play'' areas on Forest Service maps of IRAs, DOE 
estimated the acres of IRAs in each of the play areas. (A play is a 
USGS-designated area with common geologic characteristics that have 
potential to produce oil or natural gas.) The calculations of oil and 
gas resources that are estimated to occur beneath inventoried roadless 
areas are tied to these acreage estimates.
    Using information from the Department of Energy, an estimated 
(mean) 11.3 trillion cubic feet of natural gas and 550 million barrels 
of oil could potentially underlie inventoried roadless areas. 
(Estimates range from 3.5 trillion cubic feet to 23.1 trillion cubic 
feet of natural gas and from 119 million barrels to 1,212 million 
barrel of oil.) They also estimate that between 63 percent and 78 
percent of these potential reserves may be economically recoverable. 
DOE estimates that historically about one-third of the oil-in-place of 
know reservoirs is recovered. At the assumed prices ($3-4 per Mcf), the 
value of the economic activity for these natural gas resources would 
range from $23 to $34 billion dollars, which would be realized over a 
number of years.
    In addition, on the Los Padres National Forest in California the 
prohibition of road construction or reconstruction in inventoried 
roadless areas could affect exploration and possible development of 
five high potential oil and gas areas and preclude possible future 
development of up to an estimated 21.4 million barrels of oil.
    Based on DOE's figures of total undiscovered resources within the 
208 Rocky Mountain play areas examined, estimated resources beneath 
IRAs account for about 3 percent of undiscovered gas and almost 7 
percent of undiscovered oil resources in these play areas. DOE 
estimates that 2.7 million acres of inventoried roadless acres contain 
83 percent (9.3 trillion cubic feet) of the natural gas resource in all 
inventoried roadless areas. Based on information from the National 
Petroleum Council this is less than 1 percent of the nation's natural 
gas resources.
    If exploration and development did occur, it would be 5 to 10 years 
before any production is likely because oil and gas leasing is 
typically a lengthy process. The value would not be realized in the 
near future and any production would be spread over multiple years in 
the future. It is unlikely that exploration in IRAs would be a high 
priority because of issues independent of the Roadless Area 
Conservation Rule, such as access limited by rugged terrain, low 
probability of occurrence of oil and gas resources, distance to 
markets, and potential restrictions of other environmental laws.
Transmission Lines
    There is nothing in the final roadless rule that would prohibit 
construction of new power lines or oil and gas lines in inventoried 
roadless areas. However, having to construct these facilities without 
the use of roads would generally increase the construction and 
maintenance costs.
Hydropower and Geothermal Energy
    The roadless rule FEIS also did not identify any impacts to 
existing or proposed hydropower or geothermal energy projects.

                                SUMMARY

    While the roadless rule does not impact existing mineral leases and 
outstanding rights it could impact expansion of existing leases and 
exploration and development of new mineral leases on National Forest 
System lands that require road construction or reconstruction in 
inventoried roadless areas.
    Outside of known reserves such as the active coal mines in 
Colorado, the actual impacts can only be estimated. However, in those 
identified communities with a history of mining dependence, prevention 
of existing mining expansion due to the roadless rule could likely have 
a significant impact.
    Predicting the impact on undiscovered resources is difficult since 
it is unknown how much of these potential reserves are actually 
underneath inventoried roadless areas or how much of the reserves will 
be economically recoverable in the future, or what future prices will 
be.
    It is reasonable to assume, under the current demand conditions, 
that there will be increased interest for development of natural gas 
resources on Federal lands and elsewhere. However, while it is unlikely 
that inventoried roadless areas would be a significant contributor at 
current prices, since exploration in inventoried roadless areas may not 
be a high priority because of existing rugged terrain and access issues 
independent of the roadless rule, at higher market prices development 
of gas resources on Federal lands could increase.
    This concludes my statement. I would be happy to answer any 
questions.

    Senator Craig. Mr. Phillips, thank you very much. Mr. Gant, 
do you have any additional comments to add?
    Mr. Gant. No, I do not.
    Senator Craig. If not, let us use the 5 minute rule on 
questioning rounds, so we can move through this and have all of 
us participate. Mr. Hochheiser, in your testimony you indicated 
that on October 12, 2000, the DOE's Office of Fossil Energy met 
with Deputy Secretary T.J. Glauthier concerning the impact of 
the roadless rule on the exploration and development of oil, 
gas, and coal resources. Prior to that time had anyone at the 
Forest Service or the Secretary of Energy's office or anywhere 
else in the Executive branch for that matter asked the Office 
of Fossil Energy for such an analysis?
    Mr. Hochheiser. No, they did not.
    Senator Craig. So the first request for this analysis came 
on October 2, 2000. That would be after the President's 
announcement of October 1999 that he was going to set aside 
these 58 million acres of land; is that correct?
    Mr. Hochheiser. Yes, it is.
    Senator Craig. Approximately a year later.
    Mr. Hochheiser. Yes.
    Senator Craig. And that would have also been after the 
December 1999 speech by the then Secretary Dan Glickman at the 
national summit on private land conservation where he announced 
that road building would be prohibited on pristine national 
forest lands, would it not?
    Mr. Hochheiser. Yes.
    Senator Craig. That would also be after the State of the 
Union speech in January 2000 in which the President took credit 
for already protecting these areas, is that not correct?
    Mr. Hochheiser. That's correct.
    Senator Craig. And of course that would have been well 
after the May 2000 remarks by then Vice President Gore that 
there would be no more destructive development, destructive 
development, new road building, or timber sales in the roadless 
areas of the national forest, would it not be?
    Mr. Hochheiser. Yes, sir.
    Senator Craig. So really in perspective and notwithstanding 
the quality of your analysis, there was no reason for you to 
believe that you would have any appreciable impact on the 
course of the rulemaking, was there?
    Mr. Hochheiser. Well, whether we would have an impact, I 
think would be determined by people making policy decisions. We 
were asked to provide the analysis and we have provided the 
analysis. Of course, I imagine I'm disappointed when our 
analysis doesn't result in an impact.
    Senator Craig. The Forest Service did respond to your 
analysis in a January 5, 2000 letter to OMB. Would you go 
through their major points and give us your thoughts you may 
have? Mr. Eppink can assist you if you would like, and then we 
will let the Forest Service respond to that, if you would 
please.
    Mr. Hochheiser. Well, I would just hit some high points 
given the time limit, but one issue raised was that our 
analysis, our maps were at a very gross level and not fine 
enough to make the kind of estimates that we did, and that the 
play boundaries that Jeff described were only approximate 
within 1 to 5 miles.
    First of all, we only made estimates to the nearest 100 
billion cubic feet which is a fairly gross level and if you 
wanted to round it to the nearest trillion cubic feet it would 
still be 11 Tcf, which we think is significant. The play 
boundaries are probably good within one to two miles, given the 
ability to map rocks. And the major point here is that we find 
that most of the inventoried roadless areas are wholly within 
the play boundaries. In doing a computer analysis we found only 
8 percent of the IRAs were within five miles of a boundary, so 
that would introduce less than a 10 percent uncertainty to the 
analysis.
    They also brought up the fact that we assumed homogenous 
distribution of resources within each play, and that's very 
true with two significant exceptions. But first of all we did 
look at 116 plays within that Rocky Mountain region, so that's 
a fairly good level of detail. The assumption of homogenous 
resources is within those plays.
    Now, there are two large unconventional resource plays, gas 
plays where we did not assume homogenous distribution because 
ARI had done a lot of research for us in those plays, and we 
have in those cases, and those are two of the top nine plays we 
talked about, in those cases we have detail down to the 
township level. A township is 6 by 6 mile square.
    They also quoted the National Petroleum Council in saying 
that the majority of gas resources are going to be found in the 
basinal areas rather than at the edges and that the forest 
lands are only at the edges of the basin. We think our analysis 
is consistent with that because the Forest Service also pointed 
out that only 3 percent of the Rocky Mountain gas resources was 
found to be within the IRAs, the roadless areas. So that's 
consistent with saying most of, the majority of the resource is 
in the basinal areas. We found 3 percent in the roadless areas. 
And we also, they also said that the oil and gas resources are 
not evenly distributed and that's, of course, true. But in 
doing that they pointed out that the current activity, the 
current well drilling is not in the roadless areas.
    I hope you don't mind if I share with you that when I asked 
a Forest Service minerals expert in the field about that, he 
said that was akin to telling a timber company that they should 
go and cut timber where they did last year. They should do it 
next year where they did last year because that's where they 
found the trees last year.
    And I don't mean to be flip but the fact is that this 
future resource is not necessarily found where the current 
wells are. I mean if that were true we'd still all be drilling 
in Pennsylvania.
    Some of the undrilled areas in the roadless areas are 
expected to have very high potential, according to geologists, 
and maybe I could let--Jeff is a geologist so maybe he could 
comment on that.
    Mr. Eppink. I think some of the areas do have some very 
good potential. I'd just like to say the one issue is this 
assumption of homogeneity of the resources that we used. I 
think in most plays we did make that assumption and given the 
state of knowledge, that's an appropriate assumption. But I 
think we definitely, within the vertical column of a given area 
we captured numerous plays so that we are capturing the 
geological variety that underlies it and that we're looking at 
undiscovered resource, and I just want to amplify the point 
that Bill made that you don't look for undiscovered resources 
in discovered fields. That's reserves growth and that's a 
totally separate issue.
    Mr. Hochheiser. Just a couple of more points. In 
economically recoverable resources, the Forest Service pointed 
out that this production wouldn't take place for probably 5 to 
10 years. We don't think that's a reason to obviate the value 
of those resources. And they state that the 11 Tcf would only 
be 6 months of production. I feel that's a specious argument. 
The country needs all the natural gas resources it can get. And 
the 11 Tcf or whatever is eventually found would be produced 
over probably a 20 to 30 year period and be a significant part 
of our supply during that period.
    And as Jeff said, I just want to point out that we only 
looked at undiscovered resources so current production would be 
in addition to the resources that we have, that we've been 
talking about. And Federal lands are an increasingly important 
part of our oil and gas production domestically. I think 
especially in the Rocky Mountains that that's going to 
continue.
    Senator Craig. Thank you very much. Let me turn to Senator 
Bingaman.
    Senator Bingaman. Thank you very much. Let me just be sure 
that I understand correctly what the import of this is, this 
inventoried roadless area rule. As I understand it, any 
existing leases in these areas were exempt from the rule, is 
that right?
    Mr. Phillips. That is correct.
    Senator Bingaman. And as I also understand it, these so-
called inventoried roadless areas had been available for 
drilling or for obtaining permits or for lease applications for 
decades, am I right about that? It is not as though this land 
had been locked up prior to the issuance of this rule, am I 
right about that or not?
    Mr. Phillips. That is correct, some of those leases, 
however, may have had some stipulations placed on them for some 
other concerns but not with regard to roadless.
    Senator Bingaman. So that to the extent that any company 
felt there was a recoverable resource there, that was 
economical to recover, they were in a position to go ahead and 
drill for that or explore for that or make application to lease 
that area up until the issuance of this roadless rule, am I 
right about that? Yes, Mr. Eppink.
    Mr. Eppink. I think you're entirely correct but your key 
word there is economic. We've experienced a gas bubble for the 
last 12 to 15 years which has now popped. Gas prices have 
substantially changed and during that time it's up to the 
individual companies, but it may or may not have been economic 
to pursue those resources.
    Senator Bingaman. So your thought is that since the price 
of gas is now substantially higher than it has been for the 
last 10 or 15 years, that there are areas that now would be 
attractive for exploration and development?
    Mr. Eppink. All other things being equal, that's correct.
    Senator Bingaman. I'm a little concerned, I guess, about 
the estimates, Mr. Eppink that you've come up with here, 
because there's such an enormous range that you deal with. For 
example, on gas you say that there's somewhere between 3.5 and 
23.1 trillion cubic feet, so it's either 3.5 or it's 7 times 
that. That seems like a very large range of estimate. Is that a 
normal thing to estimate that kind of a range?
    Mr. Eppink. Yes, it is. If you look at it, most of the data 
is driven by the USGS resources estimates and if you look at 
given plays within the USGS national assessment you see ranges 
like that.
    Senator Bingaman. Why wasn't USGS requested to do this 
work?
    Mr. Hochheiser. I think it was they don't do this kind of 
geographic information system analysis which consisted of 
having to get the digitized maps from Forest Service and 
overlay them with the resource assessment, both in the interest 
of time and we had a very short time to do this, and because 
the surface types of analysis are not done by USGS, just the 
resource assessment work. We use their numbers principally but 
they were not available to do that.
    Senator Bingaman. Do you know if they support these 
conclusions or generally do or want to disassociate themselves 
from them?
    Mr. Hochheiser. I don't think they have a position that I 
know of. Probably because we didn't exclusively use USGS 
numbers they wouldn't wholly support the analysis because they 
would only support their own numbers. And just to comment on 
one of your previous questions, just to say that in the Forest 
Service impact analysis, in their letter to Mr. Spotila they do 
note that there are, some of the roadless areas are currently 
unavailable for leasing so not all of them are available to the 
companies.
    Senator Bingaman. Some of those were unavailable before the 
issuance of the roadless area initiative?
    Mr. Hochheiser. Yes.
    Senator Bingaman. So the figures you're giving us here are 
not the figures for what has been made unavailable by the 
roadless rule?
    Mr. Hochheiser. They are figures for, as I said, we would 
say that of the 11 Tcf, about 9 would be made unavailable by 
the roadless rule and the other two were already unavailable.
    Senator Bingaman. They were unavailable. This article in 
the paper this morning caught my eye. I don't know how accurate 
it is. I just would ask any of you if you have any information 
about it. It says the White House has instructed the Justice 
Department to research ways to scuttle the Clinton's 
administration's regulation protecting 60 million acres of 
national forest from logging and road building, sources said 
yesterday. That the reference they make, do any of you know if 
that is a valid statement.
    Mr. Phillips. I'm not aware of any instructions like that.
    Senator Bingaman. Anybody else?
    Mr. Hochheiser. I don't know about that, sir.
    Senator Bingaman. I'll stop with that, Mr. Chairman.
    Senator Craig. Jeff, thank you. Let me turn to the 
chairman.
    The Chairman. Thank you very much. I'm curious, Mr. 
Phillips, relative to the latter part of your extended 
statement and you indicate under transmission lines, and I 
quote, ``there is nothing in the final roadless rule that would 
prohibit construction of any new power lines or oil or gas 
lines in inventoried roadless areas.'' Are you familiar with 
the Intertie proposal in southeastern Alaska from Ketchikan 
roughly to Wrangell?
    Mr. Phillips. I am aware of that, probably not as much as 
you are, but, yes I am aware of that.
    The Chairman. In your opinion, would the transmission line 
be allowed under this order or disallowed or can you enlighten 
us a little bit on the status of the case from Judge Singleton 
that, in the Tongass has challenged, if you will, the 
inadequacy of the Forest Service in not considering extended 
wilderness in their evaluation.
    Mr. Phillips. I guess the best way to answer that is if the 
transmission line required physical road construction, then it 
probably wouldn't be able to do that.
    The Chairman. Well, who makes that decision, is it Forest 
Service? I mean, you've got to have access to put in 
transmission. It's not intended to be a road for the purpose of 
a road. It may be a road for purpose of putting in a 
transmission line. What's your criteria?
    Mr. Phillips. Well, we have definitions for what 
constitutes a road.
    The Chairman. Can you build a transmission line without a 
road?
    Mr. Phillips. In some places I think you can.
    The Chairman. Can you in southeastern?
    Mr. Phillips. Some places I've been in southeastern Alaska 
it would be very difficult.
    The Chairman. Could you get that material for the record? I 
mean this right-of-way has been approved by the Forest Service 
and I'm not knowledgeable on whether it assumed a road. But 
since it was approved, I would assume you'd have access to some 
extent.
    Mr. Phillips. Let me respond for the record on that, if I 
may.
    The Chairman. Mr. Phillips, I want to talk to you for a few 
minutes about a meeting and I would ask that you look in some 
detail. You'd better hold that up a little higher it's a little 
low. This is a group of bureaucrats that went to a meeting in 
December 2000, I discussed that, I think Senator Craig 
discussed it, but the blow up chart you see before you is a 
list of the meeting's attendees, and looking at the handwriting 
it suggests that at least one person, John Spotila at OMB kept 
this record, and apparently his colleagues at OMB including Wes 
Warren wanted to make sure he was there so he registered a 
second time to make sure his presence was noted.
    I don't know the significance of that, but nevertheless, 
it's a rather curious effort to be recognized. Now I want to 
make sure that this December 1 meeting occurred after the final 
environmental impact statement was published, is that correct?
    Mr. Phillips. The final environmental impact statement was 
published November 17, 2000.
    The Chairman. So this meeting occurred then December 1, 
2000.
    Mr. Phillips. That would be after November, yes, sir.
    The Chairman. Now, the meeting did involve a discussion of 
the Tongass National Forest because documents presented to us 
include a number of letters urging the administration to modify 
the final environmental impact statement to immediately include 
the Tongass; is that correct?
    Mr. Phillips. I'm not aware of that. I haven't seen those 
documents, sir.
    The Chairman. Do you have access to those documents?
    Mr. Phillips. The staff advises me we don't have access to 
them.
    The Chairman. Well, can you advise us where those documents 
might be? We happen to have the documents, and we'd be happy to 
give them to you. We got them from you.
    Mr. Phillips. I don't think those came from the Forest 
Service.
    The Chairman. Well, they came from OMB, I'm sure you can 
get them from OMB. Do you want our documents that we got from 
OMB?
    Mr. Phillips. We'll try to get them from OMB. If we can't 
we'll call staff and see if we can----
    The Chairman. Well, the purpose here is to simply highlight 
and share, I guess, and the process that's been going on here 
for some time, it's subterfuge. These documents are available 
to us and my contention is this meeting obviously involved a 
portion of the Tongass National Forest. Would you acknowledge 
that this meeting involved the Tongass?
    Mr. Phillips. I really don't know if it involved the 
Tongass.
    The Chairman. I would like to have you then respond after 
you've seen these documents to that question, fair enough?
    Mr. Phillips. Fair enough.
    The Chairman. We asked for and were told there is not a 
summary of that meeting in the Forest Service public docket for 
this ruling and I gather from my previous question that's 
correct, you don't have a record.
    And a little further along the line, as a general matter 
was the Forest Service in the habit of including summaries of 
meetings such as this in the public common docket.
    Mr. Phillips. Yes.
    The Chairman. So this was an exception to the rule, 
evidently, that you don't have it?
    Mr. Phillips. It might be. Again, I need to look at the 
documents and then we'll respond to you.
    The Chairman. Is there some other method we could find out 
what was said at this meeting about the Tongass, are there 
personal notes or diaries, e-mails, phone logs which might show 
what was said at that meeting?
    Mr. Phillips. We can do further checking. We'd be happy to 
do that for you.
    The Chairman. Do you know of anybody or is there anybody 
that could enlighten us, that is here, relative to where we 
might find some information regarding those documents?
    Mr. Phillips. The staff have informed me they don't have 
any.
    The Chairman. Did they know where any are?
    Mr. Phillips. No.
    The Chairman. Do you know anyone who might have knowledge 
of those documents?
    Mr. Phillips. Personally, no, I don't.
    The Chairman. Isn't it rather unusual that it's a policy to 
have some documentation and in this case there isn't any?
    Mr. Phillips. Normally. Depending on who's attending a 
meeting, somebody usually keeps notes, but I don't know what 
happened in this case.
    The Chairman. Well they kept notes there who was in 
attendance, they can't seem to find out what went on. Well, I 
think I've made my point. Clearly there's been a pattern here 
that has occurred under the previous administration that I 
think is inexcusable, and the public has a right to have some 
idea of what's going on when people's livelihood is affected. 
And I think you share that, and the reality is, these decisions 
were made on the basis of a clear objective which was to 
terminate harvesting in the national forest, and the easiest 
place to start was the largest of all our national forests and 
that is the Tongass.
    Less than one tenth of one percent of the commercial timber 
has ever been cut in that forest. So when I respond to my 
constituents, they look to me for some relief. When I try and 
get information relative to how and what happened, there's no 
record of the meeting.
    Well, hopefully, Mr. Chairman, you can give me a call when 
that material comes in.
    Senator Craig. Thank you, Mr. Chairman. Now let me turn to 
Senator Cantwell.
    Senator Cantwell. Thank you, Mr. Chairman, for holding this 
hearing on the roadless rule and thank you to this panel and 
the one that follows for testifying today. The roadless area 
rule was a result of a massive 3-year effort by the Forest 
Service and Department of Agriculture. The rulemaking process 
included over 600 public meetings and received review of 1.6 
million comments. This process also included information 
submitted by the Department of Energy that we are discussing 
today, about which I have a few questions.
    But first I want to point out that in the State of 
Washington alone over 60,000 people submitted comments with 
over 96 percent of those comments supporting the rule. So like 
Senator Bingaman, I was concerned when I read the Washington 
Post this morning, and albeit not all attributable to sources, 
that the White House has instructed the Department of Justice 
lawyers to find a way to ``set aside'' this regulation until 
the administration can proceed with a less restrictive rule, or 
eliminate the rule entirely.
    I want to make it very clear that this is a rule. It has 
been published in the Federal Register. It's subject to 
judicial review and any attempt to alter the rule must be 
accomplished through a process that complies with the 
Administrative Procedures Act, and provides opportunity for 
notice and comment.
    The Administrative Procedures Act is designed to make 
government provide good justification for its policies. That's 
why the APA was established, to open up government decision 
making to public scrutiny. And so obviously you are here to 
talk about that process as it related to the agencies that you 
are involved with.
    If the Bush administration wants to disagree with the rule, 
which I think they're totally entitled to do, then they have to 
go through the same APA procedures and notification and comment 
process.
    So my questions pertain to the information that was 
provided. I want to start with Mr. Eppink's comments about the 
process, and I just want to make sure . . . am I correct that 
DOE submitted its study to the Forest Service during the 
rulemaking process, and that the Forest Service essentially 
agreed with the DOE analysis, because estimates that the Forest 
Service had made about resources were similar?
    Mr. Eppink. We presented the analysis just before 
Thanksgiving and I'm not sure of the timing of the rulemaking 
period. And as to whether they agreed with it, they certainly 
saw the merit of the analysis and I can tell by follow up 
questions that they had, I wrote the economic analysis and a 
couple of other memos subsequent to the meeting just before 
Thanksgiving. So there was a lot of interest in the analysis 
and what the meaning of the analysis was.
    Senator Cantwell. So they had this same information and 
they took that into consideration?
    Mr. Eppink. I can only assume so.
    Senator Cantwell. I don't know if you want to answer this 
or others do. In the assessments that DOE provided, you're 
making some assumptions about the distribution of resources in 
the roadless areas and in adjacent areas, right? It's not as if 
the resource maps are so precise, so we're making some 
assumptions here.
    For the estimates that you provided, such as 11.3 trillion 
cubic feet of natural gas, what kind of supply are we talking 
about, in terms of length of time?
    Mr. Eppink. In terms of the time it would take the industry 
to develop that.
    Senator Cantwell. No, usage--how long would it take?
    Mr. Eppink. To use 11 Tcf?
    Senator Cantwell. How does that compare to our other 
resources?
    Mr. Eppink. It's about a half a year's supply.
    Senator Cantwell. A half a year's supply for?
    Mr. Eppink. The U.S. nationally.
    Senator Cantwell. A half of a year's supply for the U.S. 
nationally.
    Mr. Eppink. Yes. It equates that number. I'm not sure it's 
fruitful to couch it in those terms.
    Senator Cantwell. Well, of course we are making assumptions 
about the supply distribution, first of all, and then we have 
to consider the economics of extracting it, but you're saying 
that if we had that source, it would be somewhere around----
    Mr. Eppink. I made an assessment of undiscovered resource. 
That's different than supply. Supply implies that the industry 
has gone out and developed it and it's economic and they bring 
it to market.
    Senator Cantwell. But that would be if everything worked 
out.
    Mr. Eppink. If everything worked out I estimate probably 75 
percent of the technically recovered would be recovered 
economically over a period of about 20 years.
    Senator Cantwell. But the supply of it would be a very 
narrow window.
    Mr. Eppink. I think of the amount that would be produced in 
a given year would be 11 Tcf divided by 20. It's hard to do 
math when you're up here.
    Senator Cantwell. But if the total amount was half a year's 
supply, then you're looking at spreading it over 20 years . . .
    Mr. Eppink. It would be one 20th each year.
    Senator Cantwell. And then secondly, am I right, from your 
testimony that 80 percent of the potential natural gas reserves 
in the roadless areas are concentrated in 5 percent of the 
roadless areas?
    Mr. Eppink. Yes.
    Senator Cantwell. In the Rockies basically.
    Mr. Eppink. Most of that resource is in the Rockies.
    Senator Cantwell. How difficult is extraction there?
    Mr. Eppink. Relative to other areas?
    Senator Cantwell. Yes.
    Mr. Eppink. I would say for the roadless areas in 
particular it's more difficult than other areas, but not as 
difficult as some. To give you an example, the overthrust belt 
in Wyoming which is very robust play, there were 300 wells that 
were drilled in play before they figured out the play. And now 
it's drilled quite frequently.
    The same sort of thing could happen in the Montana fold 
belt were discoveries to be made. So it would, it's complex 
geologically, don't get me wrong. But it's, given technologies, 
3D seismic, and that sort of thing, imaging techniques have 
gotten better, so the ability of the industry to actually turn 
these undiscovered resources into supply is probably quite 
good.
    Senator Cantwell. Thank you. I know my time has expired, 
Mr. Chairman, but I will have further questions that I will 
submit, or ask in a second round.
    Senator Craig. Thank you. As I turn to my colleague from 
Wyoming let me submit two documents for the record. This is an 
analysis of the comments in the comment period involved in the 
roadless area review of approximately 1.1 million public 
comments on the draft proposal. About 70 or 97 percent were 
post cards and form letters, observed to be most likely the 
result of an orchestrated campaign. In fact, of the 1.1 million 
comments 800,000 of them were form letters delivered by an 
environmental consortium on the final day of the comment 
period.
    On the other hand, detailed comments from governmental 
entities included States and localities wrote 62 percent 
against the proposal.
    Senator Craig. Also I had asked the Washington Legal 
Foundation to do an analysis of administrations and their 
support of processes, proposals, and rulemaking. They've drawn 
this conclusion I found quite interesting, and I'll submit this 
for the record.
    Based on our review of reported decisions, it appears that 
the Clinton administration on at least 13 occasions refused to 
defend resource management decisions of its predecessors, 
choosing to accept an injunction or a remand from a U.S. 
District Court rather than to defend those decisions in a U.S. 
Court of Appeals.
    On at least 28 other occasions, the Clinton administration 
refused to defend its own resource management decisions in a 
court of appeal after receiving an injunction or a remand from 
a U.S. District Court.
    On these 41 occasions, the Clinton administration chose to 
abandon rather than defend timber sales, grazing allotments, 
mining approvals, and wildlife management decisions that were 
carefully made by professional resource managers. The Clinton 
administration defended efforts, defense efforts in the Supreme 
Court were even worse. Apart from the district court losses 
that it refused to defend, the Clinton administration lost over 
20 resource management cases in U.S. Courts of Appeal after 
winning in the District Court. More than half of these losses 
were in the Ninth Circuit Court of Appeals, the appellate 
court, with the highest reversal rate of 90 percent in the 
Supreme Court. Yet, in the 8 years of offices the Clinton 
administration asked the Supreme Court to review and advise 
resource management decisions by a court of appeals just once.
    I think it's an interesting comparative record and probably 
if we look at other administrations, we might find a similar 
pattern.
    With that I turn to my colleague from Wyoming.
    Senator Thomas. Mr. Chairman, since I missed the questions, 
I won't go into it, but I might have one that reflects your 
last comment. The assumption is I don't know how many millions 
of acres are involved to get those 11 trillion feet, I wonder 
how many acres of surface would be disrupted to do that. Have 
you dealt with that?
    Mr. Hochheiser. I'm trying to remember back to the 
analysis, I think the total amount, there were 116, 116 plays 
that had some potential and I think they involved around 14 
million acres, if I remember. Is not that right? But what we 
found was that over 80 percent of that resource was 
concentrated on 2.7 million acres.
    Senator Thomas. I think that is the point. As we move 
forward in the use of multiple use I think we are finding, are 
we not, techniques to have less surface disruption to obtain 
most of this available resources?
    Mr. Hochheiser. Those 2.7 million acres are the gross 
amount that is underlain by that resource. In fact the 
footprint for developing it would be much smaller because you 
would have well pads that would probably have multiple wells 
and directional drilling and so on.
    Senator Thomas. Thank you, I will pass then, Mr. Chairman.
    Senator Craig. Thank you, Senator Thomas. Mr. Hochheiser, 
the coal resource is particularly troubling to me. We are end 
users of this coal resource and how easy would it be for them 
to find alternatives when we look at this analysis?
    Mr. Hochheiser. Well, what I found is the coal in the 
Colorado and Utah lands that were talked about by the Forest 
Service is a unique coal in that it is a high Btu, bituminous 
coal and low sulfur, about half a percent sulfur.
    Senator Craig. You are saying that from a clean coal basis 
this is the best coal available potentially.
    Mr. Hochheiser. Very clean coal and what I've found was 
that it is actually shipped to the East and used by the eastern 
electric utilities as a major part of their compliance strategy 
with the Clean Air Act. In fact, if that, and I talked to for 
instance a manager at the Tennessee Valley Authority who said 
they rely on using that coal, mixing with other coals to meet 
their sulfur emissions targets. And if they did not have that 
coal, they would either have to use a high Btu, higher sulfur 
coal and do some emissions trading which would be on the order 
of one to seven dollars a ton equivalent for the coal, or use a 
low Btu, low sulfur coal, in which case they would have to 
derate their plants because of the higher volume of coal that 
would be needed or the same volume of coal would contain less 
energy. They would have to derate their plants by about 20 
percent.
    So that was the impact on the utility users of the coal 
that I found.
    Senator Craig. Thank you. Mr. Eppink, your testimony 
suggests that 5 percent of the inventoried roadless areas 
involved 80 percent of the potential energy resources that are 
at issue in the disagreement between the Department of Energy 
and the Forest Service over the impact of the rule.
    Mr. Eppink. That is correct.
    Senator Craig. Does that suggest to you that a more 
studied, case by case approach dealing with the roadless area 
matter might have reduced significantly the energy implications 
of this rule without dramatically changing the amount of 
acreage that was protected?
    Mr. Eppink. I think that is very clear, yes.
    Senator Craig. I mean, that is also my general conclusion 
in looking at your findings, that if we had been allowed to 
analyze this in a constructive manner, we could have exempted 
those areas of high potential, or potential, and still have 
protected a substantial chunk of property.
    Mr. Eppink. I think that is correct. We do a number of 
these analyses and I think this is one where, from the 
implication, from the analysis it was fairly clear that if you 
dealt with just a small amount of the areas that were being 
considered you would affect a very large amount of the 
resource. And as these sorts of analyses go, that is pretty 
robust.
    Senator Craig. Did you evaluate the secondary impacts on 
the roadless rule such as pipeline access across roadless 
areas?
    Mr. Eppink. No, we did not.
    Senator Craig. Well, let me turn to the Forest Service. Mr. 
Phillips, in former director Dombeck's letter dated January 5, 
2001 to John Spotila of OMB, he said after the final EIS was 
published, two additional coal mines that would be affected by 
the roadless rule were identified. How did the Forest Service 
overlook the existence of two coal mines on national forest 
lands?
    Mr. Phillips. The two mines that I think you may be 
referring to there are the two in Colorado which we did not 
receive information for in order to reflect the economic 
impacts to those operations. So I am not sure that we 
overlooked them. They did not submit the information that we 
needed to do the evaluation of the impacts.
    Senator Craig. Does the Forest Service not keep records of 
coal mining operations located on Forest Service lands?
    Mr. Phillips. We do our best. Yes, we do.
    Senator Craig. The answer is yes.
    Mr. Phillips. The answer is yes.
    Senator Craig. And still throughout this process of over a 
year until it was finalized, it was not realized that two coal 
mines had been missed.
    Mr. Phillips. Well, it was realized that they were there, I 
think, but we did not have the job-related impacts associated 
with that, I believe is the case.
    Senator Craig. If the Forest Service did not know these 
mines existed--or does now I guess--how could it in good faith 
maintain it had done a comprehensive environmental impact 
analysis and meaningful initial regulatory flexibility analysis 
as required by the Regulatory Flexibility Act?
    Mr. Phillips. In completing that and in response to Mr. 
Eppink's, actually, his question on whether or not we, how we 
used the additional information that was brought forward into 
the final regulatory impact analysis, we went with the 
information we had. I believe the total employment effects for 
coal alone were about $89 million.
    Senator Craig. Okay, did you believe that it is within the 
spirit and legal requirements of NEPA, RFA, and APA to publish 
a proposed rule and a draft environmental impact statement when 
the regulatory agency does not know who the rule would affect?
    Mr. Phillips. I believe it was felt that the impacts were 
adequately--well, let me say this, let me back up a minute. 
That is actually a legal issue, an issue in litigation. I would 
prefer not to get into speculating on that.
    Senator Craig. All right. We will leave it at that. I 
appreciate the reality of that situation. With that let me turn 
once again to Senator Cantwell. And Senator take as much time 
as you want with this panel. I am going to step out for a 
moment.
    Senator Cantwell. Mr. Chairman, I was going to in light of 
the fact that we have a second panel, I was going to submit 
whatever additional questions I have since we have had quite a 
bit of discussion about what has been collected and documented, 
and we are going back and forth on when and where, what was 
submitted and how it was reviewed.
    But if you like, Mr. Chairman, I would be happy to submit 
those and go to the next panel and have them testify.
    Senator Craig. Fine. I tell you, I am going to have to make 
a phone call and I am going to start the next panel and let you 
work down through it for the record and then I will be able to 
step back in.
    Senator Cantwell. Thank you.
    Senator Craig. Gentlemen, thank you very much, any 
additional questions will be submitted to you, Senator Cantwell 
has some and I will probably have some also, but we thank you 
very much for your time here.
    Gentlemen, thank you very much for coming this afternoon to 
provide testimony on this most important issue. Let us start 
with Dr. Peter Morton of the Wilderness Society, Denver 
Colorado. Dr. Morton, welcome before the committee.

   STATEMENT OF PETER A. MORTON, Ph.D., RESOURCE ECONOMIST, 
  ECOLOGY AND ECONOMICS RESEARCH DEPT., THE WILDERNESS SOCIETY

    Dr. Morton. Thank you, Mr. Chairman. I am Pete Morton, a 
natural resource economist in the research department of the 
Wilderness Society. We are a 200,000 member national 
conservation group founded by Aldo Leopold, Bob Marshall, and 
other visionaries. We focus specifically on public land issues 
and I appreciate the opportunity to testify today. As you know 
the Wilderness Area Conservation Rule conserves approximately 
58 million acres of the public estate managed by the Forest 
Service. Conserving these roadless wild lands will provide 
multiple uses, multiple goods and services and multiple 
economic benefits for current and future generations. Fishing, 
hunting, hiking, mountain biking, skiing, rafting, camping are 
just some of the multiple activities allowed in these areas, 
and these activities are very important to the economies of the 
Western United States.
    I would like to include for the record a letter from the 
Ecological Society of America, the world's premier society of 
professional ecologists underscoring the scientific 
justification for the wilderness area conservation rule. With 
regards to energy, while gas is a clean burning rich fuel for 
the future, the drilling for gas generates significant 
ecological threats centered mostly on water. As a result of 
drilling, aquifers are drained, water tables are lowered, 
drinking water wells dry up, water quality is threatened and 
you have sediment loads discharged into streams which damage 
fisheries.
    If there is one thing more valuable than oil and gas in the 
arid West it is water. Other problems from exploiting energy 
resources include erosion from roads and landslides. In 
Colorado alone over 1 million acres of Forest Service roadless 
areas have high risk for landslides that dump tons of sediments 
into streams. All of these impacts carry price tags but they 
are almost never captured in cost benefit analysis. Such costs 
need to be considered especially since roadless watersheds 
provide clean water for hundreds of downstream communities and 
thousands of affected citizens. A more detailed discussion of 
these costs are included in my written testimony.
    I would like now to turn to the Wilderness Society's 
analysis of oil and gas in roadless areas in six Western 
States. Using GIS intersection analysis of oil and gas plays 
with roadless areas, we estimate that roadless areas in these 
States contain only four-tenths of one percent of the Nation's 
oil resources and six-tenths of one percent of the Nation's gas 
resources. These numbers were estimated using USGS data. These 
are the technically recoverable resources, which drop 
significantly when financial and economic factors are 
considered.
    Our most recent GIS analysis of Colorado highlights the 
small role that roadless areas play in oil and gas development. 
If you look at the map on the right, in the gray are all the 
acres in Colorado with oil and gas potential. The yellow 
indicates roadless areas with oil and gas potential, while the 
blue indicates roadless areas without oil and gas potential. As 
shown on the map, a majority of the roadless areas have no oil 
and gas potential. Roadless areas with oil and gas potential 
account for approximately 3 percent of the total acres in 
Colorado with oil and gas potential, a small amount.
    With respect to the actual amounts of the Roadless Area 
Conservation Rule, currently 759,000 acres of the roadless 
areas with high oil and gas potential are already under lease 
and will not be impacted by the roadless rule. The remaining 
land, much of which is on steep slopes, has been available for 
leasing for 60 or 70 years with little or no interest from the 
industry.
    We have a second map which shows roadless areas combined 
with the coverage of oil and gas leases. What is interesting 
about this map, we have both wilderness areas and roadless 
areas, and what is significant is the important role that the 
roadless areas play in terms of ecological connectivity between 
the a lot of the well-known roadless areas in Colorado. Also it 
shows that only 2 percent of the roadless areas in Colorado are 
under lease, reinforcing the lack of interest in these areas 
from the oil and gas industries. Copies of these maps will be 
submitted for the record.
    It is also important to note that 41 percent of the 
roadless areas already had management prescriptions developed 
through the normal planning process with local and national 
input that prohibit road construction. As such, when examining 
the impact of the roadless rule we should focus only on the 59 
percent of the roadless areas where management prescriptions 
were actually changed.
    When all these factors are considered, the potential 
negative impacts from the roadless rule are much, much less 
than have been estimated by the oil and gas industry. And as 
importantly, when estimating economic impacts, it is proper to 
examine the net impacts of the rule, fully accounting for the 
benefits. While economics should not drive public land 
management, when the net impacts are considered we agree with 
the conclusion of the Forest Service that the benefits of the 
Roadless Area Conservation Rule far outweigh the cost.
    And finally with respect to the current spike in energy 
prices, the quantity of oil and gas in the national forest 
roadless areas are small, relatively, and will have absolutely 
no impact on energy prices in the global market. In addition 
the undiscovered oil and gas resources in roadless areas cannot 
be added to current production for at least 5 to 10 years.
    The already discovered gas reserves and expected growth in 
those reserves account for 42 percent of U.S. on-shore gas 
supplies. It is these resources, the financially feasible gas 
resources in and around already discovered reserves that have 
the potential to impact short-term energy prices, not the 
hypothetical, unknown small quantities of undiscovered gas 
resources in roadless wild lands far from existing pipelines. 
Thank you.
    [The prepared statement of Dr. Morton follows:]

   PREPARED STATEMENT OF PETER A. MORTON, PH.D., RESOURCE ECONOMIST, 
      ECOLOGY AND ECONOMICS RESEARCH DEPT., THE WILDERNESS SOCIETY

    I am Dr. Peter Morton, Resource Economist in the Ecology and 
Economics Research Department for The Wilderness Society, a 200,000-
member national conservation group that focuses on public land issues. 
I appreciate the opportunity to testify today regarding potential 
effects of oil and gas resource development in national forest roadless 
areas.
    The Forest Service Roadless Area Conservation Rule has raised 
concerns by some over the economic impact of prohibiting road 
construction on domestic energy supplies. The environmental impact 
statement for the rule presents a good overview of the rule's potential 
effects on oil and gas development, including some detailed information 
on reasonably foreseeable development activities. The objective of this 
testimony is to evaluate the impacts--both positive and negative--of 
the Roadless Area Conservation Rule to provide decision-makers with 
additional information relevant to the current debate.

                ECONOMIC IMPACTS FROM THE ROADLESS RULE

    The Roadless Area Conservation Rule conserves approximately 58.5 
million acres of the public estate managed by the U.S. Forest Service. 
Conserving these roadless areas will provide for multiple uses, 
multiple goods and services, and multiple economic benefits for current 
and future generations. Roadless areas provide multiple backcountry 
recreation opportunities (fishing, hunting, birdwatching, mountain 
biking, hiking, skiing, horseback riding, rafting, etc.) represent 
critical habitat for fish and wildlife--including threatened and 
endangered species, provide the scenic backdrop for motorized and non-
motorized visitors outside roadless areas, generate ecosystem services 
such as carbon sequestration, natural pest control and watershed 
protection for local communities, and preserve the option of protecting 
additional wilderness for future generations. A letter from the 
Ecological Society of America (Attachment 1), the world's premier 
society of professional ecologists, underscores the scientific 
justification for the Roadless Area Conservation Rule.
    Although roadless wildlands are highly valued by society, without 
formal markets, the benefits of wildland conservation are difficult to 
quantify in economic terms. As a result, non-market wildland benefits 
are typically under-produced by private landowners responding to market 
signals. This is a serious shortcoming as certain functions of nature, 
although they have no market value and their benefits are only 
partially understood, are necessary to keep America's market economy 
running. Public lands can help correct market failures by sustaining 
roadless wildlands that cannot survive the market forces driving 
private land use decisions. The failure of markets to protect roadless 
area benefits provides the economic justification for implementing the 
roadless rule.
    The record number of public comments received by the Forest Service 
in support of the roadless policy provides empirical recognition and 
support for the multiple uses and benefits generated from roadless area 
conservation. While no quantitative estimate of the benefits of the 
rule was provided in the Roadless EIS, the Forest Service believes the 
benefits of the rule outweigh the costs (USDA Forest Service 2001, 
Regulatory Impact Analysis). In a more sophisticated analysis, Loomis 
and Richardson (2000) estimated that in their current, unroaded 
condition, Forest Service roadless wildlands in the lower 48 states can 
be expected to provide almost $600 million in recreation benefits each 
year, more than $280 million in passive use values, and nearly 24,000 
jobs. The authors also estimated annual benefits from roadless area 
ecosystem services to include between $490 million and $1 billion worth 
of carbon sequestration services as well as $490 million in waste 
treatment services. Estimating the net impacts of the roadless rule 
should fully account for the benefits of conserving roadless areas as 
well as the potential costs with respect to the decline in quality and 
quantity of the other multiple uses generated by the public estate as a 
result of exploiting energy resources.

    THE ECOLOGICAL FOOTPRINT OF OIL AND GAS EXPLORATION AND DRILLING

    Oil and gas drilling operations leave behind a large footprint on 
the landscape--a footprint that extends well beyond the several-acre 
drilling sites. Beginning with exploratory activities, large trucks 
with seismic surveying equipment criss-cross the landscape using a 
crude system of roads designed for lowering the financial costs of 
gathering geophysical information with at times little consideration 
for wetlands, storm water runoff or critical habitat. Exploratory 
drilling operations then require more large trucks with drill rigs 
using a network of constructed roads to access drill sites. If the 
exploratory well is determined to have no potential for production, the 
well is plugged, but the landscape scars remain. Depending on the 
agency with oversight, there is typically little enforcement or 
monitoring of environmental regulations. In addition, no surety bonds 
are required for restoration or clean up.
    If the well has potential for production, the well is cased with 
pipe and cemented (in an attempt to prevent oil and gas from seeping 
into nearby aquifers), and the drilling rig is replaced by a well head. 
Electric or gas powered motors are used to power the pumps that collect 
the gas at each well and to power the series of 24-hour compressor 
stations that pressurize gas for pipeline transport from the wells to 
customers in distant markets (WORC 1999). Many drill sites also involve 
the construction of sediment ponds and retention reservoirs to collect 
storm water drainage and store the ground water brought to the surface 
as a result of the drilling and extraction operation--the latter 
process is called dewatering. Injection wells are sometimes used to 
dispose of the water produced and to enhance oil and gas recovery--an 
action that may necessitate additional drilling of a few to hundreds of 
injection wells throughout the field (Gauthier-Warinner 2000). The 
ecological footprint not only extends across the forest and range 
landscape, it also penetrates to shallow aquifers as well as aquifers 
thousands of feet below the earth's surface.

       WATER AND THE UNCOUNTED COSTS FROM OIL AND GAS EXTRACTION

    The major uncounted environmental cost associated with oil and gas 
drilling concerns water. National Forest roadless areas provide 
important watershed protection services for downstream communities, 
services that are negatively impacted by oil and gas drilling. In the 
lower 48 states, 55% of the watersheds that contain IRAs provide water 
to downstream facilities that treat and distribute drinking water to 
the public (LaFayette 2000, Watershed Health Specialist Report).
    Greatly increased drilling activity for coal bed methane is having 
profound real life impacts on many families and communities in the West 
and illustrates well some of these impacts. In order to ``release'' the 
methane gas from coal beds, enormous amounts of ground water must be 
pumped from coal aquifers to the surface. The water discharged on the 
surface comes from shallow and deep aquifers containing saline-sodic 
water. The total amount of water produced from individual coalbed gas 
wells is generally much higher than that from other types of oil and 
gas wells (USGS 1995). Coal bed methane wells in Wyoming and Colorado 
discharge between 20,000 to 40,000 gallons per day per well, onto the 
ground surface (Darin 2000). The disposal of the water produced with 
coalbed gas not only affects the economics of development, but also 
poses serious environmental concerns. Water disposal can vary from 
inexpensive methods, such as discharge into streams, to more costly 
alternatives, such as underground injection and surface discharge after 
water treatment.
    The amount of water discharged from CBM wells in Wyoming has 
skyrocketed in recent years, increasing from approximately 98 million 
gallons (300 acre feet) per year in 1992, to 5.5 billion gallons 
(17,000 acre feet) per year in 1999 (Wyoming State Engineer's Office 
cited in Darin 2000). The discharging of 17,000 acre feet of water in 
the arid west is wasteful in the short-term (generally an acre-foot of 
water will supply a family of four for one year), and has potentially 
devastating economic impacts for affected communities in the long-term. 
Dewatering of deep aquifers may upset the hydrologic balance, 
eliminating or reducing the availability of this water for future 
agricultural and domestic uses, as well recharge for shallow aquifers 
and surface water.
    The discharge of ground water can deplete freshwater aquifers, 
lower the water table, and dry up the drinking water wells of 
homeowners and agricultural users. Monitoring of wells maintained by 
the BLM in the Powder River Basin, Wyoming already indicates a drop in 
the coal aquifer of over 200 feet (WORR 1999). The short-term economic 
costs include drilling new, deeper wells for current and future 
homeowners, ranchers and farmers, assuming successful wells can be 
found and/or the costs of relocating families to new homesites. If the 
freshwater aquifers do not fully re-charge, the long-term economic 
costs to affected landowners, homeowners, communities, and states 
across the west could be severe, including the foregone opportunity 
(option value) to use aquifer water in the future.
    The water discharged from oil and gas wells is highly saline with a 
very high sodium absorption ratio (SAR)--a ratio that affects how water 
interacts with soil. Water with a high SAR can permanently change 
chemical composition of soils, reducing soil, air and water 
permeability and thereby decreasing native plant and irrigated crop 
productivity. Test results from water discharged from CBM wells from 3 
sites in Wyoming all revealed SARs exceeding a level that could result 
in a 30-40% decrease in plant productivity (Powder River Basin Resource 
Council 2000).
    The discharge of tens of thousands of gallons of ground water 
transforms many streams that normally flow intermittently only during 
spring runoff or after storms into all-season streams (Powder River 
Basin Resource Council 2000). The influx of water has resulted in deep 
channel scouring, erosion, and increased sedimentation. Increased 
sedimentation in-streams can negatively impact native fisheries found 
in mainstream drainages with increased likelihood and financial costs 
from fishery restoration projects. The discharge of water into 
intermittent stream channels damages native flora and fauna not adapted 
to year-round water and promotes the spread of noxious weeds such as 
Scotch burr and Canadian thistle. The change in native vegetation 
composition, combined with the increase in noxious weeds, negatively 
impacts threatened and endangered species and other wildlife, as well 
as cattle. The loss of native species and the spread of noxious weeds 
across the west has enormous economic costs to the public and private 
interests.
    The landscape is also impacted from the retaining ponds or 
reservoirs constructed to store the water discharged from the drilling 
operation. The constructed earthen dams and retaining ponds destroy 
additional habitat and introduce artificial structures to the 
landscape. Habitat and homes on property nearby reservoirs also have 
potential flood risk from structural failure of the poorly designed, 
quickly built retaining ponds and reservoirs during storm events, for 
example.
    And finally, drilling for oil involves ecological risks and 
potential economic costs associated with blowouts--the catastrophic 
surge of the highly pressurized fluid from the drill hole that can 
cause fires, loss of life and property, and the potential contamination 
of surface drinking water sources. To reduce the number of blowouts, 
rotary drilling operations typically inject a fluid of drilling muds 
into the drill hole in order to lubricate and cool the drill bit. While 
reducing the number of blowouts, the drilling fluids themselves create 
a risk of contamination of adjacent freshwater aquifers (Gauthier-
Warinner 2000).
 the uncounted costs from drill sites, pipeline and road infrastructure
    Exploiting the gas in unconventional, continuous-type deposits will 
require drilling a significant number of wells, as the distribution of 
these resources is not well understood. Based on existing technology, 
the USGS indicates that nationwide approximately 960,000 productive 
wells will be required to recover potential gas reserve additions of 
300 trillion cubic feet. However, the habitat loss would not end there 
as extrapolation of present-day success ratios indicates that roughly 
570,000 ``dry'' holes would have to be drilled in addition to the 
productive wells--for a total of 1,530,000 drilling sites on public and 
private lands. Based on an industry report in Alaska (cited in NPC 
1999) while past drilling pads consumed about 65 acres of habitat, 
recent operations average less than 10 acres. If we assume 5 acres per 
drilling pad and 1,530,000 drill sites, exploitation of just the 
continuous-type gas deposits would consume approximately 7.7 million 
acres of habitat on public and private land across the nation. As noted 
by the USGS (http://energy.usgs.gov/factsheets/GIS/gis.html), ``land-
use planners are not in a good position to determine the societal 
impacts of the drilling (density) that would be necessary if these 
continuous reservoirs of (tight) gas were exploited.''
    In order to bring gas to market, thousands of miles of pipeline 
must also be constructed--extending the impacts of gas drilling far 
from the actual drill site. There are currently more than 270,000 miles 
of gas transmission pipelines and another 952,000 miles of gas 
distribution lines. The National Petroleum Council (1999) projects a 
need to build 38,000 and 255,000 miles of additional transmission and 
distribution pipelines, respectively, by 2015.
    Oil and gas exploration also requires roads that increase 
ecological costs and invite cross-country travel and habitat damage by 
ORVs. Oil and gas drilling often require daily vehicular trips to 
monitor and maintain wells and pipelines. The increased traffic 
disrupts wildlife, may result in more road kill, and diminishes quality 
of life for local residents. The linear deforestation associated with 
road construction degrades habitat and fragments travel corridors 
needed by wildlife species such as grizzly bears, wolves, and other 
large, wide-ranging predators. Roads become conduits for non-native 
species that displace native species resulting in significant 
mitigation costs for taxpayers. Roads, by providing access, increase 
the frequency of human-caused fires. Humans cause ninety percent of all 
wildfires in the national forests; more than half of those wildfires 
begin along roads. In addition, roads increase the damage to 
historical, cultural and archeological resources due to increased ease 
of access.
    Roads increase sediment deposits in streams resulting in reductions 
in fish habitat productivity. In addition to keeping sediment from 
access roads and drill sites out of community water sources, roadless 
areas protect communities from mass wasting (e.g. landslides). Mass 
wasting from landslides and debris flows is a key source of sediment, 
particularly in western forests, and many of the roadless areas are at 
high risk from landslides. In Colorado and Wyoming, for example, over 
1,146,000 and 645,000 acres of roadless areas, respectively, have high 
susceptibility to landslides (Table 3). While landslides are a natural 
process, management activities like road construction and logging 
accelerate the incidence of mass wasting by several orders of magnitude 
(Swanson 1971, Anderson and others 1976, Swanson and Swanston 1976, 
Sidle and others 1985, Swanston 1991). For example, a joint FS and BLM 
study in Oregon and Washington found that of 1,290 slides reviewed in 
41 subwatersheds, 52% were related to roads, 31% to timber harvest, and 
17% to natural forest (USDA Forest Service 1996 cited in LaFayette 
2000, Watershed Specialist Report). The Forest Service concluded that 
the Roadless Area Conservation Rule ``would have a considerable 
beneficial effect on water quality, particularly in Regions 1 and 4.'' 
(the Northern Rockies)

      Table 3.--NATIONAL FOREST ROADLESS AREAS WITH HIGH LANDSLIDE
                    SUSCEPTIBILITY FOR SELECT STATES
------------------------------------------------------------------------
                                             Acres of      Percent of FS
                                          roadless areas  roadless areas
                  State                   with high risk     with high
                                           of landslides  susceptibility
                                                 *         to landslides
------------------------------------------------------------------------
Colorado................................    1,146,000           33
Wyoming.................................      645,000           21
Montana.................................      564,000           15
Utah....................................      492,000           14
------------------------------------------------------------------------
* NOTE: This is a conservative estimate of roadless acres classified as
  highly susceptible to landslides, as these totals did not consider the
  21 million acres in roadless acres allocated to prescriptions that do
  NOT allow road construction and reconstruction, some of which have may
  high susceptibility to landslides (USDA FS Watershed Specialist Report
  2000).

    The uncounted economic costs from road construction for oil and gas 
drilling include increased ORV monitoring costs, increased frequency 
and costs of stream restoration projects, increased noxious weed 
mitigation costs, increased damage to archaeological sites and the 
decline in future benefits from visiting these sites, increased water 
treatment costs for downstream communities, and increased road 
maintenance and closure costs for taxpayers. On average, the annual 
maintenance cost of a mile of road is about $1,500 per mile (USDA FS 
1999). Each new mile of road added to the FS transportation system 
competes for limited road maintenance funding, as Congressional funding 
is less than 20% of the funding necessary to maintain the existing road 
infrastructure. One must seriously question the wisdom of building more 
roads when current roads can't be maintained, and each year's unmet 
maintenance needs increase the backlog as roads deteriorate and the 
costs of repairs increase over time.
    Examples of the economic costs from energy exploitation are 
summarized in Table 4 and should be included as part of the discussion 
on the net impacts from the Roadless Areas Conservation Rule.\1\ While 
many of these costs are difficult to estimate, academic and federal 
agency economists have made great advances in developing methods to 
value non-market costs and benefits. Included in the table are methods 
available for estimating the economic costs, to drive home the point 
that these costs are quantifiable and should be included in the 
economic calculus. Many heretofore-unquantifiable wildland benefits and 
costs are now quantifiable and available to agency officials 
responsible for developing the policies and procedures for guiding 
public land management. We therefore strongly encourage the USGS to 
internalize non-market costs into the cost functions used to estimate 
economically recoverable resources.
---------------------------------------------------------------------------
    \1\ While the discussion and the economic costs included in Table 4 
focus on oil and gas, coal mining has similar environmental impacts 
that should not be ignored. For example, coal mines cause subsidence 
(i.e. the settling of the earth after the coal is removed) that can 
result in landslides and damage to the hydrological function of 
streams, wetlands and groundwater wells. Even underground coal mines 
require roads on the surface in addition to a drilled ventilation 
system to release methane, a deadly greenhouse gas, directly from the 
mine into the atmosphere.

                    Table 4.--THE UNCOUNTED ECONOMIC COSTS OF MINING, OIL AND GAS EXTRACTION
----------------------------------------------------------------------------------------------------------------
       Cost category                   Description of potential cost               Methods for estimating cost
----------------------------------------------------------------------------------------------------------------
Direct Use                  Decline in quality of recreation including hunting,  Travel cost, contingent
                             fishing, hiking, biking, horseback riding.           valuation surveys.
----------------------------------------------------------------------------------------------------------------
Community                   Air, water and noise pollution negatively impacts    Surveys of residents and
                             quality of life for area residents with potential    businesses. Averting
                             decline in the number of retirees and households     expenditure methods for
                             with non-labor income, loss of educated workforce    estimating costs of mitigating
                             with negative impacts on non-recreation business.    health and noise impacts.
                             Decline in recreation visits and return visits       Change in recreation
                             negatively impact recreation businesses.             visitation, expenditures and
                                                                                  business income. Documenting
                                                                                  migration patterns.
----------------------------------------------------------------------------------------------------------------
Science                     Oil and gas extraction in roadless areas reduces     Change in management costs,
                             value of area for study of natural ecosystems and    loss of information from
                             as an experimental control for adaptive ecosystem    natural studies foregone.
                             management.
----------------------------------------------------------------------------------------------------------------
Off-site                    Air, water and noise pollution affect quality of     Contingent valuation surveys,
                             downstream and downwind recreation activities.       hedonic pricing analysis of
                             Drilling rigs in viewsheds reduce quality of         property values, preventive
                             scenic landscapes, driving for pleasure and other    expenditures, well replacement
                             recreation activities and negatively impacts         costs, restoration and
                             adjacent property values. Groundwater discharged     environmental mitigation
                             can negatively impacts adjacent habitat, property,   costs, direct impact analysis
                             and crop yields, while depleting aquifers and        of the change in crop yields
                             wells.                                               and revenues.
----------------------------------------------------------------------------------------------------------------
Biodiversity                Air, water and noise pollution can negatively        Replacement costs, restoration
                             impact fish and wildlife species. Ground water       and environmental mitigation
                             discharged changes hydrological regimes with         costs.
                             negative impacts on riparian areas and species.
                             Road and drill site construction displaces and
                             fragments wildlife habitat.
----------------------------------------------------------------------------------------------------------------
Ecosystem services          Discharging ground water negatively impacts          Change in productivity,
                             aquiferrecharge and wetland water filtration         replacement costs, increased
                             services. Road and drill site construction           water treatment costs,
                             increase erosion causing a decline in watershed      preventive expenditures.
                             protection services.
----------------------------------------------------------------------------------------------------------------
Passive use                 Roads, drilling and pipelines in roadless areas      Contingent valuation surveys,
                             results in the decline in passive use benefits for   opportunity costs of not
                             natural environments.                                utilizing future information
                                                                                  on the health, safety and
                                                                                  environmental impacts of oil
                                                                                  and gas drilling.
----------------------------------------------------------------------------------------------------------------
Adapted from Morton (2000)

           PRELIMINARY ANALYSIS OF OIL AND GAS RESOURCES IN 
                     NATIONAL FOREST ROADLESS AREAS

    As indicated by the Forest Service in the EIS for roadless rule, it 
is very difficult to evaluate the reasonably foreseeable potential for 
oil and gas development in Inventoried Roadless Areas (IRAs). While 
significant energy resources underlie some IRAs, there has been very 
little interest in leasing or drilling in roadless areas or other 
national forest lands. It is wildly unrealistic to estimate the 
potential economic impacts of protecting IRAs based on total quantities 
of oil and gas resources in IRAs. That is like estimating timber 
industry impacts based on the total number of board feet of timber in 
IRAs--a pointless exercise that would result in a grossly inflated and 
inaccurate economic impact estimate. While the EIS does not include 
extensive data on oil and gas resources in IRAs, it presents a 
realistic picture of the overall economic effects of prohibiting roads.
    As a starting point in evaluating economic effects, The Wilderness 
Society undertook an assessment of the energy potential of federal 
lands in general and roadless areas specifically. The assessment 
included a GIS analysis of the oil and gas resources in national forest 
roadless areas for 6 states in the Intermountain West. These 6 states 
were selected as they represent the states with major oil and gas plays 
and they have significant acreage of national forest IRAs. Following 
are some preliminary results; we expect to have final results later 
this spring.
Data
    We obtained data from the USGS 1995 National Assessment of United 
States Oil and Gas Resources, which divides the U.S. into eight regions 
and subdivides those regions into 72 geologic provinces, with each 
province containing a number of individual plays. Plays are defined by 
the USGS as a set of known or postulated accumulations of oil or gas 
that share similar geologic, geographic and temporal properties. A 
separate GIS coverage for each of the 199 plays in the six western 
states (North Dakota, Wyoming, Montana, Colorado, Utah and New Mexico) 
was obtained from the USGS in ARCANFO export format (Weller 2001). 
These coverages define the boundaries of the oil and gas plays. The 
National Inventoried Roadless Areas (IRA) GIS coverage was downloaded 
in ARC/INFO export format from the USDA Forest Service Roadless Area 
Conservation website. This dataset contains all National Inventoried 
Roadless Areas (IRAs) for the lower 48 states.
Methods
    A Geographic Information System (GIS) and ARC/INFO software were 
used to determine the area of overlap between IRAs and oil and gas 
plays. The IRA coverage was clipped to the boundary of each of the six 
states in the study area to create an IRA coverage for each state. The 
state IRA coverages were then intersected with each play that falls 
within that particular state to identify the IRAs that overlap with 
each play. Plays could not be appended into a single oil and gas play 
coverage, because different plays are located within different geologic 
formations, and therefore their geographic boundaries often overlap 
each other.
    The results of the intersection analyses were then used to 
calculate the number of acres of each play that lie within IRAs, as 
well as the number of acres of each individual IRA that overlap with 
different plays. The total acres of each play were also determined in 
order to obtain the percent of each play that coincides with IRAs. In 
order to estimate technically recoverable oil and gas resources in IRAs 
we multiplied the percentages by the estimated oil and gas resources 
for each play, taken from the USGS 1995 Assessment. Economically 
recoverable resources within IRAs were then estimated using a model 
based on the financial cost functions and recovery rates developed by 
Attanasi (1998). Our estimates are based on the USGS mean value for 
each resource. USGS mean values represent the expected value and 
provide the best, unbiased estimate of oil and gas resources.
Results for Technically Recoverable Resources
    The technically recoverable oil in national forest IRAs for the 6 
states in the intermountain west are reported in Table 1. The 
technically recoverable resources are those that may be recovered using 
existing technology without regard to cost or profit. For this report, 
oil totals include both petroleum oil and gas liquids from discovered 
and undiscovered conventional and unconventional sources. The 754 
million barrels of technically recoverable oil represent only four-
tenths of one percent (0.4%) of the nation's oil resources. The 
technically recoverable gas in the ERAS in the 6 western states is 
reported in Table 2. The 8.7 trillion cubic feet (Tcf) of gas in IRAs 
represents six-tenths of one percent (0.6%) of the nation's gas 
resources.

  Table 1.--MEAN ESTIMATES OF TECHNICALLY AND FINANCIALLY RECOVERABLE OIL IN INVENTORIED ROADLESS AREAS ON THE
                                                NATIONAL FORESTS
----------------------------------------------------------------------------------------------------------------
                                                                           Technically
                                                                           recoverable  Financially  Financially
                                                              Technically     oil as    recoverable  recoverable
                                                              recoverable   percent of  oil at  $18/ oil at  $30/
                            State                                 oil        U.S. oil      barrel       barrel
                                                               (millions    resources    (millions    (millions
                                                              of barrels)  (on and off- of barrels)  of barrels)
                                                                              shore)
----------------------------------------------------------------------------------------------------------------
Montana.....................................................        9          0.004          4            6
Wyoming.....................................................      663           0.35        367          501
N. Dakota...................................................       13          0.007          1            3
Colorado....................................................       32          0.017         11           19
New Mexico..................................................        2          0.001          1            2
Utah........................................................       34          0.018         14           22
----------------------------------------------------------------------------------------------------------------
6-State Total...............................................      754           0.39        398          552
----------------------------------------------------------------------------------------------------------------

Results for Financially Recoverable Resources
    The financially recoverable resources are that part of the 
technologically recoverable resources that can be recovered with a 
profit based on a cash flow analysis. In contrast, the economically 
recoverable resources are a smaller subset of the financially 
recoverable resources estimated once the non-market costs and benefits 
are internalized into the calculus. To be considered financially 
recoverable the market costs of gas recovery must be less than or equal 
to the gas price (Goerold 2001). When financial criteria are considered 
the oil and gas actually recoverable drops significantly (USGS 
1998).\2\ For the lower 48 states, only 38 and 39 percent of the 
technically recoverable undiscovered oil and gas, respectively, can be 
extracted profitably when oil is $18 per barrel and gas is $2 per mcf 
(thousand cubic feet). At $30 per barrel and $3.34 per mcf, two-thirds 
of the technically recoverable oil and gas is financially profitable to 
recover (Attanasi 1998).
---------------------------------------------------------------------------
    \2\ The results reported are based on USGS estimates of 
economically recoverable resources. For this analysis the term 
financially recoverable is used because the USGS cost functions exclude 
non-market costs and more closely resembles a financial analysis (see 
below for more discussion).
---------------------------------------------------------------------------
    Financial recovery rates are even less for unconventional oil and 
gas resources (continuous-type gas and coal bed gas) than for the 
conventional resources. For continuous-type gas, only 7 and 15 percent 
of the technically recoverable gas is financial to find, develop and 
produce at $2/mcf and $3.34/mcf, respectively (Attanasi 1998). For 
continuous-type oil accumulations at $18 and $30 per barrel, about 7 
percent and 50 percent, respectively, of the technically recoverable 
oil is financially feasible to exploit (Attanasi 1998). For 
unconventional coal bed gas, about 30 percent of the technically 
feasible gas is financially recoverable at $2 per mcf, while at $3.34 
per mcf, the financial portion increases to slightly more than 50 
percent (Attanasi 1998).
    The financially recoverable oil in ERAS on the national forests is 
shown in Table 1. Assuming oil prices of $18 or $30 per barrel, oil in 
the IRAs of these 6 states would meet total U.S. oil consumption for 
approximately 21 or 29 days, respectively (e.g. 552/18.92=29). When 
financial factors are considered, the quantity of gas available also 
drops dramatically (Table 2). At $2 and $3.34 per thousand cubic feet 
(mcf), the financially recoverable gas in these ERAS would meet total 
U.S. gas consumption for approximately 2 or 3 months, respectively.

  Table 2.--MEAN ESTIMATES OF TECHNICALLY AND FINANCIALLY RECOVERABLE GAS IN INVENTORIED ROADLESS AREAS ON THE
                                                NATIONAL FORESTS
----------------------------------------------------------------------------------------------------------------
                                                                           Technically                   Gas
                                                              Technically  recoverable      Gas      financially
                                                              recoverable   as percent  financially  recoverable
                            State                                 gas      of U.S. gas  recoverable   at $3.34/
                                                               (trillion    resources    at $2/mcf       mcf
                                                               cubic ft.)  (on and off-  (trillion    (trillion
                                                                              shore)    cubic feet)  cubic feet)
----------------------------------------------------------------------------------------------------------------
Montana.....................................................      0.405        0.029        0.191        0.256
Wyoming.....................................................      5.278        0.386        2.108        2.798
N. Dakota...................................................      0.125        0.009        0.006        0.013
Colorado....................................................      2.336        0.171        0.885        1.363
New Mexico..................................................      0.067        0.005        0.019        0.026
Utah........................................................      0.486        0.036        0.224        0.332
----------------------------------------------------------------------------------------------------------------
6-State Total...............................................      8.696        0.636        3.446        4.782
----------------------------------------------------------------------------------------------------------------

    The financially recoverable totals reported above are based on USGS 
estimates of economically recoverable resources. The costs that the 
USGS uses in assessing the costs of oil and gas production include 
items such as the direct costs of exploration, development and 
production of gas. Not included in the USGS calculus are non-market 
costs such as the off-site ecological costs and cumulative negative 
environmental impacts that might result on a public resource such as a 
watershed (Goerold 2001). An economic analysis of benefits and costs 
must account for non-market benefits and costs, as well as those more 
readily observed and measured in market prices (Loomis and Walsh 1992; 
Pearse 1990). An economic analysis is conducted from the viewpoint of 
society, which should also be the viewpoint of politicians and managers 
of the public estate. In contrast, a financial analysis only examines 
costs and benefits as measured by market price; it is the viewpoint of 
private industry and is more concerned with profits or losses.
    The USGS economically recoverable analysis more closely resembles a 
financial analysis than an economic analysis. A more accurate estimate 
of the economically recoverable resources from a public perspective 
should include a full accounting of non-market costs. If economic 
analysis accounted for the uncounted, non-market costs discussed 
earlier, the quantities of oil and gas estimated to be economically 
recoverable would be much less than reported here.
  energy impacts from the roadless area conservation rule are minimal
    As discussed earlier, raw estimates of technically or financially 
recoverable oil and gas resources do not provide even a remotely 
accurate measure of the reasonably foreseeable economic effects of 
roadless area protection. For example, the roadless area conservation 
rule conserved approximately 58.5 million acres of public wildlands on 
the national forests. However, the roadless rule would not change 
management prescriptions on 24.2 million acres, representing 41% of the 
ERAS. There would be no impacts from the roadless rule on these acres 
as existing land management plan prescriptions already prohibit road 
construction (USDA Forest Service 2001). The policy discussion on 
impacts of the roadless rule should therefore focus on the 59% of the 
IRAs where management policy was actually changed as a result of the 
final rule.
    Furthermore, the oil and gas industry has demonstrated little 
interest in exploiting potential energy resources in ERAS. Because of 
the downturn in the domestic oil and gas economy, the amount of 
National Forest System land under oil and gas lease dropped from about 
35 million acres in the mid-1980s to 5.8 million acres in 1998 (USDA 
Forest Service 2000). The national forests are not a major supplier of 
gas. In 1999, the National Forest system produced about 0.4% of the 
nation's gas supply, with about half of that total coming from Little 
Missouri Grasslands (USDA Forest Service 2000). As such the impacts on 
current and reasonably foreseeable supply from a change in national 
forest management are minimal.
    Most roadless areas have been available for leasing for decades. 
Extensive portions of the lands which the oil and gas industry believes 
have high potential are already under lease and therefore would not be 
affected by this rule. Currently, 759,000 acres of IRAs with high oil 
and gas potential are under lease (USDA Forest Service 2001). Most of 
these areas are within the Intermountain, Northern, and Rocky Mountain 
regions. Existing leases are not subject to the prohibitions. The 
roadless rule would have no effect on existing oil and gas leases. In 
fact, it provides for future leasing, with roadbuilding, on lands 
currently under lease. This exception will reduce economic impacts on 
current operators, by avoiding the possibility of increasing the costs 
of production or precluding future development on the lease.
    Public concerns and environmental safeguards for protecting 
sensitive lands and resources are also key factors limiting oil and gas 
development. The NPC (1999) estimates that standard leases govern gas 
drilling on 59% of Federal land in the Rocky Mountain region. Only 9 
percent of the federal land in the region is actually off limits, while 
32 percent is subject to lease stipulations design to protect the 
environment. For example, seasonal closures necessary to protect elk 
populations may slow down the rate of gas exploitation but protect the 
wildlife and other multiple-uses under which public land is managed. 
Such protection is warranted economically, as watershed protection, 
hunting, fishing and recreation generate significantly more economic 
benefits to all Americans, including affected residents and business in 
the Rocky Mountain Region, than oil and gas extraction. Legislative 
intent and public sentiment indicate that public lands should not be 
for the exclusive use of the oil and gas industries and that managers 
must attempt to balance the many uses that occur on public land. Leases 
with environmental protection stipulations help internalize the 
uncounted costs from oil and gas extraction by protecting other 
multiple uses enjoyed by the public.
    With respect to energy prices, the quantities of financially 
recoverable oil and gas in IRAs are very small and will have no impact 
on energy prices that are set on the world market. Extracting or not 
extracting oil and gas in IRAs will have absolutely no impact on short-
term energy prices since IRAs resources could not be added to current 
production for at least 5-10 years (USDA Forest Service 2001). In 
addition, a substantial amount of undiscovered, unconventional gas 
resources in the IRAs are categorized by the USGS as hypothetical 
resources and are associated with higher extraction costs than 
conventional resources. Producers have limited ability to exploit 
hypothetical sources within an expedient time frame. The hypothetical 
nature of much of the unconventional resource underscores the inability 
of IRA oil and gas resources to impact current energy prices.
    The oil and gas resources that may affect energy prices already 
exist in discovered known reserves and in the growth of these reserves. 
Currently discovered reserves and expected reserves growth account for 
42% of U.S. onshore gas supplies (USGS 1995). It is these resources, 
the financially feasible gas resources in and around the already 
discovered reserves, that have the potential to impact short-term 
energy prices--not the unknown and hypothetical, small quantities of 
undiscovered gas resources in roadless wildlands far from existing 
pipelines.

                               CONCLUSION

    Based on our analysis, The Wilderness Society concludes that 
national forest IRAs likely hold a very small proportion of the 
nation's oil and gas resources, and drilling in IRAs is economically 
inefficient and will do nothing to reduce current energy prices for 
consumers.\3\ While economics should not be the driving force behind 
public policies, we agree with the Forest Service conclusion that IRAs 
should be protected from oil and gas drilling as the benefits of the 
Roadless Area Conservation Rule outweigh the costs. While The 
Wilderness Society also agrees that gas is the bridge fuel for the 
future, it is important to recognize that the extraction of gas, a 
cleaner burning fuel than coal, involves significant ecological and 
economic costs. It is important for the public to be aware if these 
costs and internalize them into their public land management and energy 
consumption decisions. The United States has less than 5 percent of the 
world's population but consumes 40% of the oil and 23% of the gas (USGS 
2001). As such there is much we as a nation can do via investments in 
energy conservation and renewable energy to reduce our consumption, and 
the ecological and economic costs associated with our consumption 
levels (NRDC 2001).
---------------------------------------------------------------------------
    \3\ The impact of the Roadless Area Conservation Rule on the 
nation's coal resources, while not examined in detail here, is minimal. 
The U.S. has an estimated 1.7 trillion tons of coal, with an annual 
consumption rate of 1 billion tons per year. In fact, U.S. coal 
resources are so bountiful that just our financially recoverable 
discovered reserves (i.e. not including undiscovered resources) have 
enough coal to last more than 400 years at current consumption rates 
(Goerold 2001b). In addition, advances in fuel cell and solar 
technology--and the resulting price declines--will significantly 
``stretch'' our supply of coal (and oil). This is especially true if 
continued government investments in solar and fuel cell technology have 
payoffs similar to that seen from past public investments in computer 
technology. Some economists believe that if investments in solar 
technology continue, solar energy alone will displace fossil fuels to a 
growing extent over the next 50 years (Chakravorty et al. 1997).
---------------------------------------------------------------------------
    We strongly support the Roadless Area Conservation Rule's 
prohibition on road construction for oil and gas development and other 
forms of resource extraction. At the same time, we believe the 
protection of roadless areas should not be used as an excuse to 
exacerbate the impacts of drilling for gas next to homes or private 
property where the families do not own the sub-surface mineral rights 
(i.e. split estate). We recommend a programmatic EIS on gas drilling 
where it is adversely affecting homeowners, ranchers, and communities. 
Such an approach is needed until adequate baseline conditions are 
firmly established and funding is obtained for long-term monitoring and 
mitigation to assess and minimize environmental impacts and long-term 
costs. Such a comprehensive approach is desperately needed in Wyoming 
where gas drilling, especially drilling for coal bed methane, is 
causing extreme damage to water supplies and other environmental 
values.

                       References (partial list)
Attanasi, E.D. 1998. Economics and the 1995 National Assessment of 
        United States Oil and Gas Resources. USGS Circular 1145.
Chakravorty, U., et al. 1997. Endogenous substitution among energy 
        resources and global warming. Journal of Political Economy, 
        December 1997, pp 1201-34.
Darin, T. 2000. Coalbed methane coming to a town near you. Frontline 
        Report. Wyoming Outdoor Council. Spring 2000.
Ecological Society of America, 1999. Letter to Forest Service Chief 
        Dombeck on the Roadless Area Conservation Rule.
Gauthier-Warinner, R.J. 2000? Oil and gas development. In: Drinking 
        water from forest and grasslands: A synthesis of the scientific 
        literature. USFS GTR SRS-39. S. Research Station.
Harmer, D. 2000. Roadless Area Specialist Report. Analysis of effects 
        for recreation, wilderness, scenic quality, and recreation 
        special uses. USDA Forest Service
Krause, J. 2000. Roadless Area Specialist Report. Effects analysis for 
        the FS Road System. USDA Forest Service
LaFayette, R. 2000. Roadless Area Specialist Report. Analysis of 
        effects for watershed health. USDA Forest Service
Loomis, J. and Richardson, R. 2000. The economic benefits of Forest 
        Service roadless areas. Report prepared for The Wilderness 
        Society.
Morton, P. 2000. Wildland economics: theory and practice. In: Cole, 
        David N.; McCool, Stephen F. 2000. Proceedings: Wilderness 
        Science in a Time of Change. Proc. RMRS-P-000. Ogden, UT: U.S. 
        Department of Agriculture, Forest Service, Rocky Mountain 
        Research Station.
Powder River Resource Council 2000. Coal Bed Methane News
USDA Forest Service, 2000 Forest Service Roadless Area Conservation 
        Rule, Final EIS.
USDA Forest Service, 2001. Final Regulatory Flexibility Analysis for 
        the Roadless Area Conservation Rule.
USDA Forest Service, 2001. Regulatory Impact Analysis of the Roadless 
        Area Conservation Rule.
U.S. Geological Survey, 1995. The 1995 National Assessment of United 
        States Oil and Gas Resources. CD-ROMs
Western Organization of Resource Councils, 1999. Coalbed methane 
        development: boon or bane for rural residents? Billings, MT.

    Senator Craig. Thank you very much, Dr. Morton. Now let us 
turn to Rollin Sparrowe of Wildlife Management Institute here 
in Washington. Doctor?

        STATEMENT OF DR. ROLLIN D. SPARROWE, PRESIDENT, 
                 WILDLIFE MANAGEMENT INSTITUTE

    Dr. Sparrowe. Thank you, Mr. Chairman. The Wildlife 
Management Institute is a nonprofit organization staffed by 
experienced professional wildlife managers dedicated to 
improving wildlife and habitat management in North America. As 
such we work extensively with the 50 States and the public land 
management agencies and a wide array of conservation groups 
ranging from environmental groups to hunter-conservationists. 
This large array of organizations, particularly the hunter-
conservationists, do not seem to have been heard very loudly on 
this issue as we have begun to talk about both the roadless 
area issue and development of energy on the public lands.
    The main concern, the attention of this committee is to the 
interaction between the roadless rule and energy development, 
and I am here to present a view that there is a strong 
interaction for wildlife and fisheries and their future in the 
interaction of the thought process that is going on right now.
    I would like to mention that there have been 16 
congressional hearings since February 28 on the need to extract 
energy from the public lands. A lot of it has mentioned the 
Northern Rockies as well as some other very celebrated issues, 
and very few of the testimonies that we have seen have looked 
at the renewable natural resources and how they fit into this.
    The press accounts, the public statements, the testimony, 
and now the potential to look at possibly a rollback of 
roadless area rules causes us great concern. We hear from 
energy companies, the administration, and the Congress--many in 
the Congress--that we must remove restrictions on exploration, 
development and operations and open new areas, without 
specifying them, and without specifying which restrictions are 
of concern.
    The implications for wildlife are profound and there is a 
lot of published data, some of which I have referred to in my 
testimony, and I would be happy to provide the committee with 
help in finding more of these or specific references if that 
will be useful. Important biological science drives our 
concerns. I have mentioned some things in the testimony about 
the impact of roads in general, regardless of why the roads are 
there, on elk and hunting and some important economic benefits 
of those kinds of things to local communities.
    The fact is there are some profoundly important aspects of 
this whole access and roading issue that have not been in the 
dialogue for the past several years, let alone in recent weeks. 
Forest management must really look at road management to 
effectively steward the natural resources, and renewable 
natural resources. Too much access is not necessarily a good 
thing.
    Our fisheries colleagues point out that roads profoundly 
affect streams, things like cutthroat in the Northern Rockies 
are especially affected and vulnerable to siltation and road 
building. In some cases roadless habitats seem to be the only 
thing standing in the way of listing under the Endangered 
Species Act for some of these fish populations, and thus loss 
of State and local control over the resource.
    The fish and wildlife resources on national forests are 
highly valuable to local communities and to nonresidents who 
travel there to partake of them. World class hunting and 
fishing are still available to the public on remote areas of 
the national forests. I documented briefly the effects of 
roadless activity on--or roadless designation on outfitting and 
outdoor use in Montana, and mentioned some things that you hear 
commonly when you talk to local people, that in some cases half 
of the money that comes into stores and motels and local 
businesses comes in the fall during the hunting season. It is 
important to note that these are long-term substantial benefits 
that accrue regularly to local communities, only if their 
wildlife and habitats are secure.
    Wildlife and fishery organizations want a seat at the table 
in these discussions. We are ready to help deal with the 
generalized calls to open up these areas, once we know exactly 
where they are and exactly which resources are being dealt 
with. This cannot be effectively dealt with in a broad, 
sweeping basis at the national level.
    Referring back to the 16 hearings that have been held and 
even the hearing today so far, there is extensive data being 
developed and paid for to demonstrate GIS-based, geographical 
information based extrapolations of where energy might be, but 
I have seen nothing that relates this to the extensive data 
that are available on fishery and wildlife resources, on 
endangered species distributions and on critical habitats for 
these animals.
    I personally just jotted down knowledge of range-wide elk 
habitat assessments being done by the Rocky Mountain Elk 
Foundation, mule deer being done in cooperation between that 
organization and the Mule Deer Foundation, gap analysis on a 
State basis, State natural history survey data, the incredible 
maps of the Bureau of Land Management showing the overlay of 
endangered species with their land holdings. We would be 
pleased to help guide the committee to these data sources, 
should they be useful.
    Finally, we suggest a reasonable platform with a series of 
ideas for consideration of energy development on public lands 
and suggest that a similar one be developed based on science 
for consideration of road decisions. It should start with a 
platform that roadless areas in general are roadless for a 
reason, and probably most of them should stay that way. We also 
have many in our community that are interested in testing what 
it means to manage within the current rules for these areas. 
Rather than continuing the dog fight in public, we would like 
to get on with the show and see what we can do. And if there 
are problems, maybe they can be worked out.
    My final point on behalf of hunter conservation 
organizations and the hunters and anglers of America is that 
they do not want to see sportsmen's dollars have to pay for 
restoration of the same wildlife and fishery populations again. 
These were done once in the past 70 years with dollars from 
those people, and we think additional resources and thought 
ought to go into the future as these developments and road 
considerations occur.
    [The prepared statement of Dr. Sparrowe follows:]

       PREPARED STATEMENT OF DR. ROLLIN D. SPARROWE, PRESIDENT, 
                     WILDLIFE MANAGEMENT INSTITUTE

    Mr. Chairman: I am pleased to be here representing the Wildlife 
Management Institute, a nonprofit organization staffed by experienced 
professional wildlife managers, dedicated to the improvement of 
wildlife and habitat management in North America. While I speak only 
for the Institute, our role in wildlife affairs in this nation brings 
us in regular contact with the 50 state agencies and the federal land 
management agencies concerning every aspect of management of public 
lands and wildlife habitat. We are not experts on energy needs, but we 
have been deeply involved in tracking and commenting on proposed and 
ongoing development in Wyoming's Green River Basin and Red Desert. This 
experience serves as a contemporary laboratory for how accelerated 
energy development occurs in our society.
    We work extensively with wildlife, fisheries and hunter/
conservation organizations that have a variety of attitudes and 
concerns about road management on National Forests, the Roadless Rule, 
and needs for ``hands-on'' management as well as protection of National 
Forest lands, based on specific knowledge and expertise about 
individual geographical areas of particular importance to them. The 
groups we have talked to about the issues before the hearing range from 
the Rocky Mountain Elk Foundation and Mule Deer Foundation that each 
work range-wide for their species of interest and it's habitats, to 
Trout Unlimited that works to conserve, protect and restore North 
America's cold water fisheries and their watersheds. The Izaak Walton 
League of America represents grassroots hunters and anglers concerned 
with the quality of the environment and the ability to utilize fish and 
wildlife, and Wildlife Forever, a Minnesota-based National Conservation 
Organization whose members fund wildlife habitat management projects 
and conservation education. These specific organizations work together 
through the Theodore Roosevelt Conservation Alliance (TRCA). As we have 
previously explained to you Mr. Chairman, the TRCA is an alliance of 
these independent organizations working to engage hunters and anglers 
themselves in dialog about the future of their national forests.
    These organizations and many others, including the National 
Wildlife Federation and The Wildlife Society, representing millions of 
conservationist, wildlife managers, hunters and anglers believe in 
careful, active management of National Forests, reasonable access to 
public lands, and balanced approaches to using renewable resources from 
those public lands. These groups understand the need to use 
nonrenewable resources to meet the needs of the nation.

                       WHAT IS OUR MAIN CONCERN?

    The most unifying concern among these and many other groups is that 
wildlife, fish and their habitats must be given strong consideration in 
the management of roads on National Forests and other public lands, and 
especially in decisions to extract energy resources from those lands. 
Studies of hunter attitudes in the states of the Northern Rockies 
reveal that solitude and expectations of seeing game are most important 
to them. Wildness and wild country are of increasing importance to 
Americans, and particularly to the hunting experience. Truly wild 
country is increasingly hard to find, and we want to preserve as much 
of it intact as we can.
    The issues before this hearing today bring huge challenges to 
wildlife resources for the future. During the past several weeks press 
accounts, public statements about energy planning, and testimony in the 
House and Senate before other committees seem to have pitted wildlife 
against energy production. Statements have been made in testimony by 
industry that protections on winter range for big game herds are a 
``subsidy to hunting'' that should be reevaluated by the American 
people, suggesting that they are paying higher energy prices because of 
it. Energy development means more roads that are created to satisfy the 
needs of producing energy, not to accommodate fish and wildlife or its 
management. We know that roads and their management are critical to 
fish and wildlife and that each development situation offers a specific 
biological challenge. Moreover we have observed closely how development 
is proceeding in the Green River Basin of Wyoming. It is for these 
reasons that we are deeply concerned about the broad generalizations 
that claim that our country ``can accelerate energy development in an 
environmentally sound matter.''
    We hear from energy companies, the Administration, and many in the 
Congress that we must remove restrictions on exploration, development, 
and operations, and open new areas--without specifying which ones. If 
we add the consideration of removal of roadless status that would 
affect areas of high importance to wildlife, we do not have much 
confidence that such actions will proceed with greater thought and 
evaluation than some accuse the previous Administration of doing in 
establishing the Roadless Rule in the first place.

           WHAT ARE SOME SPECIFIC IMPLICATIONS FOR WILDLIFE?

    As an indication of how important decisions on roadless areas are, 
an overlay of elk summer range with roadless areas in the lower 48 
states reveals that almost 70% of roadless areas are elk summer range. 
Winter range for elk includes 23% of the roadless areas in that same 
area. Some will be quick to point out that these are huge areas 
composed of millions of acres scattered through many states, and they 
can't all be absolutely critical to wildlife. While that is true, it 
equally extends to sweeping generalizations about removing restrictions 
and opening up areas without being specific about them. Some areas are 
simply so important that their entry will come at a high cost to 
wildlife, associated recreation, and to local communities that depend 
on them. A prime example of this with high fish and wildlife values is 
the decision by the Forest Service not to enter four areas of the 
Bridger/Teton National Forest in the Hoback Basin, Upper Green River, 
Union Pass, and Moccasin Basin of Wyoming.
    Important biological science drives our concerns. Studies of elk, 
including work from Idaho and Oregon conclusively identifies how road 
existence and use affects vulnerability of bulls, herd composition, and 
structure of herds. Basically, if more than 3 miles of roads per 
section are open during elk hunting season, no bulls survive beyond 2.5 
years of age. If roads are held to about half of that, survival age for 
bulls is doubled, and with no roads, survival age doubles again.
    Reproduction and calf recruitment also are key points. Long-term 
studies in the Blue Mountains of Oregon reveal that if bull numbers 
remain low, bulls breed at an earlier age, and calf recruitment and 
survival is lower than is necessary to sustain a healthy herd. The 
general rule of thumb from a number of studies is that too many roads 
(greater than about 2.5 miles of road per section) reduce elk habitat 
effectiveness by 50%. What this means is that there are some profoundly 
important aspects to access and roading that go well beyond concerns 
that lands are being ``locked up''.
    We could extend this discussion to a very sensitive species, the 
grizzly bear. There is abundant information that too much access leads 
to both avoidance of habitat by bears and a likelihood of greater 
negative interaction with people, contributing to consistently lower 
populations. In states that welcome repopulation of grizzly bears, the 
only hope of moving away from federal control under the Endangered 
Species Act is to effectively manage habitats resulting in bear 
populations that reach sustainable levels, and can be delisted. At that 
time, states will again be in control of bear management, but it won't 
ever happen if roads enter many of the remaining wild areas.
    In the Upper Green River country in Wyoming, extensive timber 
cutting in the 1980's resulted in a latticework of roads largely left 
unmanaged. Lack of enforcement of road closures, and opposition to 
attempts to close roads has kept this unplanned access. The long-term 
result is an elk population that cannot rise to its numerical potential 
based on lack of security, and the hunting seasons and therefore 
hunting opportunity for the public continue at a reduced rate. That is, 
there are more restrictive seasons because there is too much access.
    Mr. Chairman, we are confident that similar statistical data could 
be accumulated for your state of Idaho and for Wyoming, Utah and other 
states in the Northern Rockies that would be affected profoundly by any 
decision on roadless areas or acceleration of energy development.
    My colleagues at Trout Unlimited have supplied several examples of 
Western roadless areas that are vital for trout and salmon resources as 
well as for big game. The following are a few examples from Montana 
National Forests:

   The South Fork of the Flathead River has perhaps the state's 
        strongest populations of bull trout and westslope cutthroat 
        trout. Most of the watershed is roadless (mainly in the Bob 
        Marshall wilderness).
   The Blackfoot drainage has some of the healthiest 
        populations of migratory bull and cutthroat trout in Montana. 
        The three most important spawning tributaries for bull trout 
        are Monture Creek, the North Forth and the Landers Fork. Large 
        portions of these watersheds are roadless. Bull trout are 
        uncommon in heavily roaded drainages of the Blackfoot drainage.
   Rock Creek is one of the most popular wild trout fisheries 
        in the state. Approximately half of the watershed is roadless. 
        Biologists have found that most of the important spawning and 
        rearing areas for bull trout are in waters flowing through 
        roadless areas such as the Quigg Peak and Stony Mountain areas.
   The majority of the remaining pure-strain native westslope 
        cutthroats in the upper Missouri drainage, where these fish 
        hang on by a thread, are in roadless areas found along the 
        Rocky Mountain Front, in the Elkhorns, in the upper Big Hole 
        watershed and in the roadless fragments found near the 
        Continental Divide.

    In these cases roadless habitats seem to be the only thing standing 
in the way of listing under the Endangered Species Act, and loss of 
state control of the resource.

          EFFECTS ON HUNTING AND FISHING AND THE LOCAL ECONOMY

    Fish and wildlife resources found on National Forests, such as 
those highlighted above, sustain hunting and fishing recreation that is 
extremely valuable to local economies. According to a 1999 report from 
the American Sportfishing Association, in 1996 fishing on the National 
Forests produced $8.5 billion to the nation's economy. Hunting yielded 
$6.1 billion. Much of this value comes from trout and salmon fishing, 
and big game hunting. Roadless area protection is tied to the long-term 
sustainability of these huge benefits.
    Simply put, world class hunting and fishing are still available to 
the public in the remote areas of our National Forests and use trends 
show hunting and angling use rising at five percent per year 
nationwide. In some areas like California, hunting use of National 
Forests is doubling in eight years, while fishing use of Alaska's 
Tongass National Forest doubled in the last seven years. Further, if 
America's 50 million hunters and anglers double in numbers as the U.S. 
population doubles during this century, wild space open to the public 
will be at an absolute premium.
    Rural towns in the Green River Basin of Wyoming tell us that half 
their annual income comes during hunting season to motels, restaurants, 
grocery stores and the like. Last year the Montana Wilderness 
Association published a booklet entitled Wildland Outfitters: 
Contributions to Montana's Economy, which outlines the value of wild 
areas to their business. According to that booklet Montana outfitters 
depend on roadless areas for over half of their total service days and 
over 107,000 service days were in roadless areas. The average wildland 
outfitter in Montana earned $109,000 in 1998, 49% from hunting, 24% 
from stock/hiking trips, and 27% from other trips. Total income for 
wildland outfitting was $33 million in 1998, employing over 2,881 
people. Additionally 1,500 jobs were supported in other industries 
connected to wildland outfitting, with an industry impact of $107 
million. According to the Fish and Wildlife Service outdoor recreation 
survey, hunting and fishing and observing wildlife in Montana accounts 
for expenditures of $290 million per year.
    It is important to note that these are long-term, substantial 
benefits that accrue regularly to local communities only if wildlife 
and their habitats are secure. Local people will need to rely on 
wildlife and fish resources to sustain their local economy and culture 
long after energy development is gone.

            WHAT DO WILDLIFE AND FISHERY ORGANIZATIONS WANT?

    There is widespread concern that if roadless issues and accelerated 
energy development are to be revisited, that they be done with much 
more attention to detail and careful evaluation of costs and benefits 
than is evident in much of the recent dialogue. Importantly, 
organizations representing hunters and anglers have a lot to offer that 
has not yet been used by government or the Congress. The diverse array 
of wildlife and fishery organizations can provide evaluation and 
analysis of important resource values, and we are ready to help. The 
generalized calls to ``open things up'' must get back to reality and 
deal with specific, geographically identified areas that we can relate 
to.
    While Congress and state legislatures often focus on the welfare of 
local hunters and anglers, and local communities, the role of 
nonresidents cannot be ignored. They are the funding engine of state 
wildlife programs in states like Wyoming and Idaho and Montana through 
their license purchases and expenditures in those towns. The 
biological, sociological, and economic costs and benefit of all the 
resources involved including fish and wildlife as long-term assets to 
local communities and to the rest of the people of the nation should be 
a part of the process.
    We at the Institute suggest a reasonable platform for the 
consideration of energy development on public lands: (1) development 
and production of energy on public lands should be conducted with at 
least as much care as such development on private lands; (2) renewable 
resources such as mule deer and cutthroat trout require equal 
consideration under law along with mineral extraction; (3) scarce 
hunter and angler dollars from excise taxes should not have to pay to 
monitor the effects of development nor fund remedial action, but those 
tasks need to be done and paid for as a required cost of development 
and (4) where development occurs, it must be carefully authorized on a 
site by site basis with specific attention to the fish and wildlife 
resources.
    Such a platform would avoid repeating the mistakes that many are 
upset about in recent sweeping designations of land uses. A comparable, 
science-based and business-like approach should be developed for 
consideration of road decisions. We believe it should begin on a 
platform that roadless areas are roadless for a reason--and most should 
remain that way.
    A critical need for coping with these changes as they occur is for 
effective, science based monitoring to answer specific questions. Many 
of the potential effects of roading or accelerated energy development 
are subtle, long-term in nature, and difficult to measure. This results 
in a continuing standoff where wildlife managers say ``look at all 
those roads and activities, they have to have an impact'', and 
development interests say ``look at those wildlife standing around the 
structures, they don't care at all''. Our wildlife and fish resources 
cannot stand this impasse while development occurs.
    The real question: is at what cost do wildlife and fish adapt to 
further intrusions on the landscape? The issue in most cases will not 
be that a single road or a single development should be blamed for its 
effects on wildlife. Our mule deer, elk, pronghorn and sage grouse have 
been affected by roads, fences, ranching and farming, towns, second 
home development and long-term reduction in habitat quality. Migratory 
herds in Wyoming live on the National Forest in summer where 
accelerated development would occur, and migrate over 100 miles to the 
sage desert where accelerated development is already underway. Herds of 
elk that used to migrate even further from Jackson Hole to the sage 
deserts along the Green River can no longer do so because of those 
multiple influences. At some point the next new activity will be the 
one that leads to a potential irreversible reduction in the ability of 
some of these herds to survive--and certainly to sustain the current 
level of public use and local economic benefit.
    In conclusion, a wide array of wildlife and fishery organizations 
and our hunters and anglers across America have a stake in the outcome 
of any decision to change. roadless status or accelerate energy 
development. Most organizations with which we work would like to see 
the dialog on roads return to the complex task of management of the 
entire road system on National Forests. Many don't like the sweeping 
manner in which designations were made, but also think we should get on 
with the business of managing roads comprehensively rather than 
continuing to focus on confrontation. Many are interested in testing 
how and where management of forests for fire and wildlife and fish can 
occur within the current rules. We ask that all of this be considered 
carefully, with strong attention to fish and wildlife resources and 
science, and with careful balancing of costs and benefits for the 
tradeoffs to be involved. Whether maintaining an area roadless or 
opening it to development of this nature will have costs and benefits 
to wildlife, fish and people.

    Senator Cantwell. Thank you, Dr. Sparrowe, for your 
testimony. We are now going to hear from Greg Schaefer who is 
with the National Mining Association.

        STATEMENT OF GREG SCHAEFER, DIRECTOR, EXTERNAL 
   AFFAIRS, ARCH COAL INC., ON BEHALF OF THE NATIONAL MINING 
                    ASSOCIATION, WRIGHT, WY

    Mr. Schaefer. Thank you. I am Greg Schaefer with the Arch 
Coal Company and I am here on behalf of the National Mining 
Association and Colorado, Wyoming, and Utah mining 
associations.
    The Forest Service mineral policy which was developed in 
1970 states: National forests and grasslands have an essential 
role in contributing to an adequate and stable supply of 
mineral and energy resources. This policy is as important today 
as the day it was written. The mineral and energy policy 
further states that the Forest Service require reclamation 
plans for all proposed surface disturbing activities to return 
the land to productive uses in accordance with land management 
goals.
    One of the justifications for the roadless area rule itself 
was the backlog of maintenance costs and the need by the Forest 
Service to spend more money, but with regard to coal mining, 
keep clearly in mind that any road that we construct must be 
reclaimed at our expense to a condition at least as good as the 
pre-mining land condition.
    The final rule stated this action was not designed to 
prohibit mining, it only prohibits road construction and 
reconstruction. Roads are needed even with an underground 
mining operation for such activities as exploration drilling, 
construction, maintenance of mine ventilation and for emergency 
situations. The inability to construct a road for these 
purposes is a de facto prohibition on mining.
    California has drawn a great deal of attention over the 
past year. Currently the State of California is importing 25 
percent of their electricity from other Western States. There 
are no major coal-fired powerplants in the State of California 
but coal-fired generated electricity still accounts for 20 
percent of their total electricity consumption. Some of these 
sources include the Intermountain Power Project located in Utah 
which is owned by the city of Los Angeles and burns Utah coal. 
The Reid-Gardner unit number 4 in Nevada burns Utah and 
Colorado coals. The Deseret G&T plant in Utah burns Utah coal. 
The Boardman plant in Oregon burns Utah, Colorado, and Wyoming 
coals. And there are various other sources going into 
California including a couple of Pacific Corp., coal-fired 
plants in Utah which is supplied by Utah coal.
    Each of these powerplants obtains coal from mines that are 
either on or immediately adjacent to the new roadless areas. 
Switching to Colorado, the State of Colorado produces roughly 
between 25 and 30 million tons of low sulfur coal annually. 
Roughly 40 percent of this coal is used in the State and the 
remainder is exported to other States such as Kentucky, 
Illinois, Wisconsin, Michigan, Oregon, Minnesota, Texas, Iowa 
and Utah.
    The North Fork Valley of Colorado which is shown on the map 
here produces between 50 and 60 percent of the total volume of 
Colorado coal and is the fastest growing region in Colorado. 
These underground mines employ about 700 people in rural 
Colorado with an annual payroll of about 50 million dollars. 
The Department of Energy reported that the West Elk mine 
requires access--do you want to point that out, Dave, where 
that is located--in the next 1 to 5 years of high quality coal 
resources that lie partially or entirely under roadless areas. 
Approximately 200 million tons of high quality coal would be 
put off limits, roughly a 35 to 40 year supply of coal for that 
mine, and the mine would be forced to close prematurely. As a 
result, the 100 million dollars of infrastructure already 
invested in this mine would be abandoned.
    The Bowie mine, which is just to the north of that, is 
hemmed in on the north and west by roadless areas. These are 
the logical directions for expansion of this mine. The mining 
company estimates the roadless area would put 50 million tons 
of high quality coal off limits to the Bowie mine. The other 
mine, the Oxbow mine, acknowledges an impact but was unable to 
quantify the number of tons due to the lack of exploration 
data.
    Switching to Utah the map shows that a significant portion 
of Utah's coal production, nearly 70 percent, is located in the 
Manti-La Sal National Forest and is either overlaying or 
adjacent to the roadless area boundary. Over half of Utah's 
coal production is used in generating plants within the State 
of Utah. Utah coal is also exported to Nevada, Missouri, 
Oregon, Illinois, Kentucky, Nebraska and to the Pacific Rim.
    The State of Utah is unique among coal producing States in 
that it does not have an extensively developed rail system for 
many of their coal-fired powerplants. This means in most 
instances the Utah plants are reliant on local sources of coal. 
For example, the Hunter Power Plant which has no rail service 
is planning on a significant expansion to meet energy demands 
in Utah and other Western States such as California. As 
mentioned, the city of Los Angeles owns the Intermountain Power 
Project in Utah. This plant is also considering a significant 
expansion. The proposed powerplants and expansions in Utah 
could add as much as a 40 percent increase in in-State demand 
for Utah coal used in electricity generation.
    As a result of this rule we are now facing a long-term 
impact to the coal supplies in Colorado and Utah. I am hoping 
that the Senate and Congress carefully looks at this impact to 
energy production in the West and corrects the mistakes that 
have been made due to a lack of sufficient information. Thank 
you, again for the opportunity to speak today.
    [The prepared statement of Mr. Schaefer follows:]

 PREPARED STATEMENT OF GREG SCHAEFER, DIRECTOR, EXTERNAL AFFAIRS, ARCH 
  COAL INC., ON BEHALF OF THE NATIONAL MINING ASSOCIATION, WRIGHT, WY

    Good afternoon and thank you for the opportunity to speak to you 
today regarding the Roadless Area Final Rule. My name is Greg Schaefer 
and I am Director External Affairs Western Operations for Arch Coal, 
Inc. I am also here on behalf of the National Mining Association (NMA) 
as well as the Colorado, Utah and Wyoming Mining Associations. As 
background, Arch Coal is the second largest coal producer in the 
nation, producing about 112 million tons of high quality coal annually. 
We serve 149 power plants in 30 states. We currently have six operating 
coal mines in the western United States, four of which operate at least 
partially on National Forest Service lands.
    At the outset let me say that the Forest Service, throughout the 
rulemaking process, stated the rule was not designed to prohibit 
mining, it would only prohibit the construction and reconstruction of 
roads. In fact the preamble to the rule states that ``[m]ineral leasing 
activities not dependent on road construction such as ``underground 
development, would not be affected by the prohibition.'' This 
proposition was refuted in the record by a Department of Energy report 
(``Impact of the Roadless Initiative on Coal Resources'' Bill 
Hochheiser, November 30, 2000) which provided, ``[w]hile these 
resources are recovered using underground mines, roads are needed to 
build ventilation shafts and for safety.'' Simply put, one must have 
roads for mineral exploration and development. This point was clearly 
made in the rulemaking record and obviously ignored by the rule's 
authors.

                      IMPACTS ON ENERGY RESOURCES

    The Forest Service has a stated policy regarding minerals on Forest 
Service Lands which provides:

          ``The Federal Government's policy for minerals resource 
        management is expressed in the Mining and Minerals Policy Act 
        of 1970--`. . . foster and encourage private enterprise in the 
        development of economically sound and stable industries, and in 
        the orderly and economic development of domestic resources to 
        help assure satisfaction of industrial, security, and 
        environmental needs.' Within this context, the national forests 
        and grasslands have an essential role in contributing to an 
        adequate and stable supply of mineral and energy resources 
        while continuing to sustain the land's productivity for other 
        uses and its capability to support biodiversity goals.''

    This policy is as important today as it was on the day it was 
written. Coal and mineral resources from Forest Service lands are vital 
to supplying electricity at a reasonable price and in an 
environmentally sound manner. The mineral policy also states that the 
Forest Service ``require reclamation plans for all surface-disturbing 
activities to return the land to productive uses consistent with the 
ecological capability of the area and in accordance with land 
management goals.'' This policy is consistent with state and federal 
laws and regulations governing coal mining activities.
    As I will describe in more depth later in this testimony, the 
Forest Service proposed and promulgated the Roadless Area Conservation 
Rule without sufficient information to perform an adequate analysis of 
the rule's impact on coal production from Forest Service lands. Only 
after the abbreviated 69-day comment period closed did it become clear 
what areas would be affected and to what degree. When this information 
became available to the Forest Service, it was glossed over or 
completely ignored in the Final Environmental Impact Statement (FEIS), 
the final rule and its preamble.
    Due to the lack of detailed information, the Department 
significantly underestimated the rule's impact on energy supplies in 
the western United States. The preamble to the final rule shows the 
extent to which the Department has gone to try and minimize the impact 
of the rule. Faced with the additional information that we provided, 
the Forest Service concluded:

          ``Moreover, it seems likely that even if resources do 
        underlie inventoried roadless areas, they would be among the 
        last areas entered for exploration and development . . . the 
        agency has determined that the information does not materially 
        alter the environmental analysis disclosed in the FEIS and does 
        not constitute significant new circumstances or information 
        relevant to environmental concerns bearing on the rulemaking 
        effort.''

    The fallacy of this statement can be seen on the attached maps. The 
additional coal resources needed to keep the West Elk Mine alive would 
be among the first areas entered for exploration and development--not 
among the last.
    The Department also downplayed the significance of National Forest 
Service lands as a source of high quality, low sulfur coal. In the 
preamble to the final rule it stated:

          ``The FEIS described the coal production from NFS lands as 
        accounting for about 7% of national production in 1999.''

    This statement implies that tightening up access simply will not 
have much impact on energy production from National Forest Service 
lands. However, last year our Black Thunder Mine in Wyoming alone 
produced over 60 million tons of coal, which represents over 5% of 
national production by itself. The Black Thunder Mine is located in the 
Powder River Basin of Wyoming and is located on the Thunder Basin 
National Grasslands which is managed by the National Forest Service. In 
speaking with Forest Service personnel, it was learned that they do not 
have a good method of estimating coal production from National Forest 
Service lands. A quick survey of some of producers on the Thunder Basin 
National Grasslands revealed that these few mines in Wyoming accounted 
for 8-10% of national coal production. This completely ignores coal 
production from National Forest Service lands in Colorado and Utah. If 
accurate data were used, the percentage of national coal production 
from National Forest Service Lands could very likely be 15-20%, which 
is a very significant percentage.
    In the justification for limiting access to high quality coal 
reserves on National Forest Service lands, which ultimately leads to 
phasing out the existing mining operations, the Department concluded:

          ``Overall, the U.S. has abundant coal reserves. Also, 
        alternative sources of low-sulfur coal do exist, concentrated 
        in the western U.S., mostly in Colorado, Montana and Wyoming. 
        Additionally, the abundant sources of low cost-coal and 
        available technology, such as scrubbers, will enable electric 
        utilities to meet their Clean Air Act compliance goals.''

    This statement writes off significant sources of high quality 
compliance coal in Utah and parts of Colorado and creates major 
problems for the generators of electricity in Utah. The premise for 
this statement is simply incorrect, and will be discussed below.
Colorado Impacts
    The State of Colorado produces close to 30 million tons of high 
quality bituminous coal annually. Roughly 45% of this coal is used 
within the state and the remainder is exported to other states. The 
North Fork Valley near Paonia, Colorado (roughly 90 miles east of Grand 
Junction, Colorado) produces approximately 60% of the total volume of 
Colorado coal, and is the fastest growing coal-producing region in 
Colorado. This area consists of three underground coal mines: Arch's 
West Elk Mine, the Oxbow Mine and Bowie Resources. It is anticipated 
that these three mines will produce up to16 million tons of coal in 
2001 with about 700 employees and an annual payroll of $50 million.
    In 1999, coal from these three mines was shipped to power plants in 
Colorado, Kentucky, Illinois, Wisconsin, Michigan, Oregon, Minnesota, 
Missouri, Texas, Iowa, and Utah. The Utah power plant supplied by this 
coal was the Intermountain Power Project (IPP) which is owned by the 
City of Los Angeles and provides low cost reliable power to California.
    The Department of Energy report referenced above highlights some of 
the energy impacts created by the roadless rule:

          ``This coal is highly valued by these utilities because of 
        its low sulfur content (0.5%) and high Btu value. Utilities 
        such as Tennessee Valley Authority rely on this coal as their 
        Clean Air Act compliance strategy. The utilities blend this 
        coal with other, higher sulfur, lower Btu coal to achieve 
        compliance, and burn the Colorado coal exclusively during time 
        of high demand in order to avoid derating of their plants while 
        staying under air emissions limits.''

    The Department of Energy report also describes specific energy 
impacts in the North Fork Valley:

          ``The West Elk Mine requires access in the next one to five 
        years to three areas of high quality coal resources that lie 
        partially or entirely under roadless areas. Approximately 200 
        million tons of high quality coal would be put off limits and 
        the mine would be forced to close prematurely. In addition, as 
        much as 50 million tons of coal on the existing lease would 
        likely not be mined because planned longwall panels that would 
        extend into unleased federal coal would not proceed. As a 
        result, the $100 million of infrastructure already invested in 
        this mine would be abandoned.
          The West Elk Mine produces seven million tons of coal per 
        year, providing $26 million dollars per year of direct labor 
        income and almost $90 million of direct plus indirect income. 
        The potentially unminable 200 million tons of coal have a value 
        of $3 billion. Using the multiplier of 3.5, as used in the FEIS 
        (p.3-316, table 3-68), this represents a total of over $10 
        billion in foregone economic activity.
          The Bowie mine, northwest of the West Elk mine, is hemmed in 
        on the north and west by roadless areas. These are the logical 
        directions of expansion for this mine. This mine produces five 
        million tons of high Btu/low sulfur coal and employs 178 people 
        at the mine, with an annual payroll of $9 million per year. 
        This translates to more than $30 million per year of direct 
        plus indirect economic impact.
          The mining company estimates that the roadless rule would put 
        50 million tons of high quality coal off limits to the Bowie 
        mine, coal with a value of $750 million. Using the multiplier 
        from the previous bullet, this translates to over $2.5 billion 
        of economic activity.''

Utah Impacts
    In Uinta coal region of Utah, the Forest Service analysis 
concentrated on only three tracts: the Muddy, Ferron, and North Horn 
tracts. These tracts are either next to an existing mine or contain 
sufficient high quality reserves to support a new mine. The FEIS that 
preceded the final roadless rule estimates these three tracts contain 
185 million tons of high-Btu coal. This coal would have a value of over 
$2.8 billion to $3.7 billion if mined.
    While these three tracts represent a sizable amount of coal, they 
also represent only the tip of the iceberg as shown on the attached map 
of the Uinta region. The roadless areas block mine development and 
expansion across the entire western boundary of the region. None of 
this information regarding resource information outside of the three 
tracts was considered by the rule writers nor the authors of the FEIS.
    The primary impact of the roadless area rule in Utah will be on the 
Manti-LaSal National Forest. The map shows that a significant portion 
of Utah's coal industry is located in the Manti-LaSal National Forest 
and is either overlain or adjacent to the roadless area boundary. The 
State of Utah annually produces roughly 25 to 27 million tons of high 
quality, low sulfur coal, half of which is used in the State of Utah. 
Just under 50% of the coal is exported to states such as Nevada, 
California, Oregon, Illinois, Missouri, Kentucky, Idaho, Colorado, 
Washington, Wyoming and Tennessee for electric generation (about 26%) 
and other industrial/commercial/residential uses (16%). Depending on 
the exchange rate and the demand for steam and metallurgical coal, 
about 10% of Utah coal is exported to Pacific Rim countries through the 
Los Angeles Export Terminal.
    The existing coal mines that are overlain by or adjacent to the 
roadless areas are the SUFCO, Deer Creek, Trail Mountain, Crandell and 
Star Point mines. In 1999 these mines represented almost 70% of the 
coal production in the State of Utah.
    The State of Utah is unique among coal producing states in that it 
does not have an extensively developed rail system for many of the 
mining operations and coal-fired power plants. This means that in many 
instances the Utah power plants are much more reliant on local sources 
of coal than counterparts in other states. For example, the Huntington 
Power Plant has no rail service and must rely on local mines to supply 
coal by truck. This plant is planning a significant expansion to meet 
energy demand needs for the State of Utah, as well as for export to 
other western states (e.g., California).
    The City of Los Angeles owns the Intermountain Power Project (IPP), 
with the power generated by this plant being exported to California. As 
a part of the current energy crisis in California, the IPP plant is 
also considering a significant expansion. The vast majority of the coal 
used at this plant is from the State of Utah.
    The potential power plant expansions in Utah could add as much as a 
40% increase in in-state demand for Utah coal. This is at a time when 
the number of coal mines in Utah have been decreasing and significant 
uncertainty has been added due to the roadless rule. A complicating 
factor in the State of Utah is the settlement agreement between the 
state and the federal government over the lost coal resources as a 
result of the designation of the Grand Staircase Escalante National 
Monument. In this settlement agreement, the federal government 
transferred temporary ownership of some coal reserves to the State of 
Utah (SITLA). The final rule states that these tracts have valid 
existing rights and can be mined. However, after a certain amount of 
coal has been produced from these tracts, they revert back to the 
federal government. Furthermore, some of these tracts will need 
adjacent coal in order to justify the capital needed to build a mine. 
Where that adjacent federal coal is encumbered by the roadless area 
prohibitions, the likelihood of one investing capital in these mines is 
diminished.

California
    This section briefly discusses the role of coal in the State of 
California. This State was chosen since it is currently in the middle 
of a critical energy crisis and has generated a great deal of 
attention. Currently, the State of California is meeting 75% of its 
electric needs by in-state generation and is importing the remaining 
25% from other western states. There are no major coal-fired power 
plants in the State of California, but coal-fired-generated electricity 
still accounts for 20% of their total energy mix.\1\ Some of these 
sources include the Intermountain Power Project in Utah (Utah coal); 
Reid-Gardner Unit 4 in Nevada (Utah and Colorado coals); Deseret G&T in 
Utah (Utah and Colorado coals); Boardman Plant in Oregon (Utah, 
Colorado and Wyoming coals). Each of these sources receives a portion 
of its coal from mines either adjacent to or underlying areas affected 
by the roadless rule. The State of California also has various 
``northwest contracts'' from various sources including Pacificorp in 
Utah, which is supplied by Utah coal and similarly affected by the 
rule. As can be seen, the Utah and Colorado coal industries are an 
integral and critical part of not only the Utah and Colorado electric 
supply but the State of California as well.
---------------------------------------------------------------------------
    \1\ Source: 1999 Net System Power Calculation, Electricity Analysis 
Office, California Energy Commission, April 2000.
---------------------------------------------------------------------------

Summary
    The Nation must use its vast domestic resources to meet the growing 
energy requirements that an expanding economy requires. Many of these 
resources, including coal, are found on lands administered by the 
Forest Service and on other public lands. Demand for coal for 
affordable, reliable electricity is expected to increase by over 25% 
during the next 20 years. Nearly 90% of this additional coal production 
will come from public lands in the West; much from Forest Service 
administered lands impacted by this rule. If this affordable coal is 
not available, high costs for alternative fuels will mean higher 
electricity costs and lower electricity reliability. Also, the coal 
industry will continue to be required to reclaim any surface 
disturbance to at least as good a condition as the premining landscape.

                  THE ROADLESS AREA INITIATIVE PROCESS
 
   I have been involved in the roadless area proceedings since 
President Clinton announced the initiative on October 13, 1999. I 
attended several public scoping meetings, including one in Grand 
Junction, Colorado in December, 1999 and subsequently requested an 
extension of time of the scoping period. In our letter, dated December 
17, 1999, requesting an extension of time we made several requests that 
have never been adequately addressed in this process:

          ``It is difficult, if not impossible, to provide 
        knowledgeable comments on the proposal when the Forest Service 
        has not provided the public with sufficient detail. For 
        example, the Forest Service has not provided maps with any 
        level of detail to be able to develop questions or comments 
        relative to our operations. Just prior to writing this letter, 
        I went to the Forest Service website dedicated to the Roadless 
        Area initiative and it still states that the maps are `Under 
        Development'. In Colorado, a public hearing was held in Grand 
        Junction, Colorado. Once again, the Forest Service provided 
        maps, but in this case they were `conceptual', and lacked any 
        meaningful detail. We have asked for detailed maps, that 
        included coordinates, townships, ranges, and sections, but have 
        been unable to acquire the requested information. Local Forest 
        Service personnel have tried to help, but they have warned us 
        that even when the maps are available, they may not be 
        accurate? At a minimum, the Forest Service should provide the 
        following so that meaningful comment can be submitted:

          ``Detailed maps showing the location of the proposed roadless 
        areas, with coordinates, sections, townships and ranges. 
        Identify the coal reserves that are located within the proposed 
        roadless areas, as well as quantify the coal quality of those 
        reserves. Identify the location of existing mining operations 
        that could access these reserves, and provide an analysis of 
        the socio-economic consequences of the inability to obtain 
        additional reserves. If there are no nearby mining operations, 
        assess the impact on the loss of those coal reserves from the 
        reserve pool.''

    The Forest Service never addressed this request. Subsequently, maps 
were posted on the website after the close of the public comment 
period, but the scale and lack of legal description made them virtually 
useless for assessing local impacts, but did give us a sense that we 
should look very closely at our Colorado operation in particular. The 
same information was requested by the NMA though a Freedom of 
Information Act (FOIA) request during the comment period for the 
proposed rule. After the close of the comment period, NMA was told in a 
formal response from the Forest Service that, in short, the maps and 
the relationship between roadless areas and mineral reserves were 
available on the Forest Service web site. Anyone who saw the 
information on the Forest Service web site knows this statement is just 
plain wrong.
    Fearing that we would not have any data in which to assess the 
boundary of the roadless area relative to our West Elk Mine in 
Colorado, we set out on a mission to try and develop our own map(s). 
Working with a local Forest Service employee we dug up the RARE II 
boundary that was proposed in 1979 and plotted that information on our 
mine plan map. It was found that the boundary passed right over the top 
of the West Elk Mine and contained nearly all future reserves 
accessible by this underground mine. As it turned out, the 1979 RARE II 
boundaries were used in setting the boundaries of the roadless area 
without any further review of any changes over the 20-year period. Of 
particular interest is that this boundary encompasses lands that 
contain a significant number of existing roads.
    Once this map was developed, we met with the Regional Forester's 
Office in Denver, Colorado in early February 2000. Their response was 
that they were pleased to have a map with this level of details, as 
they had not been provided with any detailed information from the 
Washington, D.C. Office of the Forest Service. The Regional Office 
acknowledged the problem and asked what relief we were seeking. Our 
response was that since the West Elk Mine was on the margin (edge) of 
the proposed Roadless Area that we would like the boundary slightly 
modified in order to provide a future for the West Elk Mine. The reply 
was that there was not an opportunity to move the boundaries as that 
decision had already been made.
    Even though the public comment period had closed, we provided the 
map that we had developed to the national Forest Service Team working 
on the Roadless Area Environmental Impact Statement. One member of the 
team reiterated that there was no opportunity to move the boundary as 
that decision had already been made. Our question was how could that be 
if the Draft Environmental Impact Statement was only now being 
prepared?
    All of our efforts during this period were reflected in one small 
paragraph of the DEIS, which stated:

          ``[The prohibition of road construction] could increase 
        exploration and development costs for leaseable minerals so 
        that deposits in inventoried roadless areas may be less 
        economically feasible for development. For example, one 
        Colorado coal company has submitted information showing that 
        the opportunity to access coal resources adjacent to their 
        existing leases would be severely limited by a prohibition on 
        road construction.''

    Leadership in the Department either did not have adequate 
information or chose to ignore it. The problem remained that there was 
a lack of detailed map information. Arch Coal commissioned a consultant 
to develop the location of existing, and in some instances prospective 
coal leases, on the Grand Mesa, Uncompaghre and Gunnison (GMUG) 
National Forest in Colorado. Significant resources were put into 
developing this map, but the most difficult aspect was obtaining the 
legal descriptions of the proposed roadless areas.
    During the development of these maps, we continued to meet with the 
minerals branch of the Forest Service, the Department of Energy, Office 
of Management and Budget, Council on Environmental Quality, among 
others. A scheduled meeting with Forest Service Chief Mike Dombeck was 
``delegated'' as the Director and other senior members of the Forest 
Service delegated the meeting to lower level staff at the last moment.
    During one meeting with the Department of Energy we were shown a 
roadless area delineation map supplied to them by the Forest Service 
that showed several areas of significant impact to the coal industry on 
the Manti-LaSal National Forest in Utah. This information was stunning 
for two reasons: first, the Forest Service had never made this 
information public; and second, our company had been told several times 
by local forest service officials that there was no impact to our 
underground coal mining operations in Utah. Unfortunately, we took that 
declaration at face value.
    Upon the revelation that the issue extended beyond our Colorado 
operations, we also commissioned the consultant to perform the same 
mapping exercise for the Manti-LaSal National Forest in Utah. The 
Colorado and Utah maps were finally completed right about the time the 
Final Environmental Impact Statement was issued, and are attached and 
incorporated in this testimony. Although the final rule can be 
published as soon as 30 days following publication of the FEIS, the 
message these maps conveyed manifested a significant impact the Forest 
Service failed to project and the message was conveyed to the 
Department of Energy, the Office of Management and Budget, the Council 
on Environmental Quality and the Forest Service.
    Notwithstanding this compelling information, the preamble to the 
final rule states:

          ``The Department has decided not to adopt the exception for 
        future discretionary mineral leasing because of the potentially 
        significant environmental impact that road construction could 
        cause to inventoried roadless areas.''

    This is clearly an excuse and not a valid reason. State and federal 
mining regulations require that all surface disturbances associated 
with the mining operation must be reclaimed to a condition at least as 
good as the pre-mining condition. This means that any roads developed 
in conjunction with the mine, including exploration, development or 
operation must be reclaimed. Further, state and federal mining 
regulations require that the quality of surface and ground water must 
be protected.
    In a further effort to convince the public that these lands need to 
be off-limits for future mineral development the preamble states that 
if road construction and reconstruction were allowed for future energy 
and mineral leasing, an additional 59 miles of road over a five-year 
period would be built in roadless areas (including oil, gas and non-
fuel minerals). The preamble further states that at this rate, 10 
million acres would be affected, which is interesting considering that 
the Department only identified 8 million acres that have the potential 
for oil and natural gas (of which 2.5 million acres have potential for 
coal and coal bed methane). Again, the Forest Service has conveniently 
ignored the fact that roads developed in conjunction with mining must 
be fully reclaimed to a condition at least as good as the pre-mining 
condition.

             PROTECTIONS FOR ROADLESS VALUES ALREADY EXIST

    The Forest Service chose to accept these severe proscriptions for 
roadless areas even though roads associated with coal mines are 
temporary and the Surface Mining Control and Reclamation Act (SMCRA) 
mandates that these roaded areas be reclaimed to a condition as good or 
better than they were before mining. Furthermore, surface coal mines 
cannot be permitted at all on Forest Service lands unless the Secretary 
of Interior ``finds that there are no significant recreational, timber, 
economic or other values which may be incompatible with surface mining 
operations . . .'' (Section 522(e)2)) In other words, the values the 
rule is intended to safeguard have already been considered and 
protected by an existing statute.
    During the rulemaking process, the Forest Service also ignored the 
fact that the SMCRA provides the exclusive statutory scheme for 
designating areas unsuitable for coal mining. The first question the 
authors of this rule should have asked was whether the agency has the 
authority to deny reasonable access to federal coal.
Other Mineral Related Impacts of the Roadless Area Conservation Rule
    Stillwater Mining Company produces platinum and palladium from its 
mine located partially on Forest Service lands in Montana. Two of the 
roadless conservation areas cover portions of these reserves, which 
represent the only operating platinum/palladium mine in the Western 
Hemisphere. Even though Congress specifically drew the boundaries of 
the Absaroka-Beartooth Wilderness to exclude these important deposits, 
the roadless rule ignores this obvious congressional intent.
    Platinum and palladium are critical elements in catalytic 
converters as well as components in high temperature and corrosion 
resistant alloys used in jet aircraft and other defense applications. 
The environmental, economic and national security implications of 
denying access to develop these unique and important deposits are 
significant.
    Like coal underlying Forest Service lands, holders of federal 
phosphate leases will be limited in their ability to expand production 
levels beyond the boundaries of existing leases. The FEIS states that 
873.3 million tons of phosphates not yet leased could be affected by 
the roadless rule and additional amounts could be affected when land 
management plans are revised or amended. The cumulative impact of the 
increased energy costs and the escalated cost of fertilizer on western 
farmers and ranchers will be profound.
Conclusion
    The Final Roadless Area Conservation Rule will clearly result in 
the loss of millions of tons of coal and phosphates, as well as 
substantial quantities of metallic and other hardrock minerals, that 
could otherwise be recovered from Forest Service administered lands. 
The economic impact on energy, agriculture and mining sectors is 
hundreds of millions of dollars. The cost/benefit analysis appears to 
under-estimate grossly the impact, and the Forest Service has ignored 
the cumulative effect the rule will have on sectors of the economy 
already reeling because of elevated energy costs.
    In its evaluation of the adequacy of the regulatory framework for 
hard rock mining, the National Research Council stated:

          The lack of information appeared to be greatest among highly 
        placed officials who have the greatest need to know. 
        Consequently, those responsible for regulatory management and 
        change, and for keeping the public and Congress adequately 
        informed, appear to be severely limited in their ability to do 
        so.\2\
---------------------------------------------------------------------------
    \2\ Hardrock Mining on Federal Lands, National Research Council 
(September, 1999).

    Although this observation was made in a different regulatory 
context, it is clearly applicable to the situation at hand.
    The authors of the rule went to great pains first to dismiss then, 
when confronted, understate the impacts this rule will have on the 
Nation's ability to meet its energy needs. The agency completely 
ignored the existing regulatory scheme, including the Clean Water Act, 
the Endangered Species Act, the Surface Mining Control and Reclamation 
Act, and most notably the Wilderness Act, that protects the values this 
rule claims to defend. The price the entire Country will pay of this 
failure has already been witnessed in California and is spreading 
across the West.

    Senator Cantwell. Thank you, Mr. Schaefer. Now we are going 
to hear from Mr. Edmund Segner with EOG Resources Inc, 
representing the American Petroleum Institute.

           STATEMENT OF EDMUND P. SEGNER, PRESIDENT, 
                      EOG RESOURCES, INC.

    Mr. Segner. That is correct. And also representing the 
Domestic Petroleum Council and the IPAA and also the Public 
Lands Advocacy. The U.S. oil and natural gas industry has a 
long record of providing a reliable and affordable supply of 
energy to America. The Federal Government has always played a 
pivotal role in determining how well producers meet U.S. energy 
needs. It is important that government and industry develop a 
workable national energy policy that both protects the 
environment and delivers the energy to insure continued 
prosperity. We believe both goals can be achieved.
    Most natural gas we use come from U.S. sources. According 
to the National Petroleum Council demand will rise by more than 
30 percent by the year 2010 and 60 percent by 2020. We will 
need an additional 7 trillion cubic feet of natural gas 
annually over the next decade and 14 trillion cubic feet a year 
of additional supplies in less than 20 years.
    The NPC study also found that producers would have to 
invest almost $660 billion in new capital to meet that 
increased need for energy. We are capable of meeting this 
demand if energy companies have greater access to Federal lands 
now off limits or subject to severe restrictions. The 
Department of Energy study on the roadless rule estimated it 
would close off 11 trillion cubic feet of natural gas estimated 
to be beneath these lands.
    The study also illustrates the disregard given to energy 
values. More than 80 percent of the predicted 11 trillion cubic 
feet of natural gas is located on just 5 percent of the land 
covered by the rule. The new rule bans reconstruction, creating 
new roadless areas in lands that have previously been available 
for multiple use. As a result the Forest Service is changing 
congressional intent.
    When the Forest Service devised its long-term strategic 
plan in 1990 under the Resource Planning Act it stated 
petroleum leasing activity was designed to meet most demands 
for access to explore and develop mineral resources, except 
when doing so would pose unacceptably high risk to other 
resources. Since then the Forest Service has paid little 
attention to mineral resources in drafting their land use 
plans.
    Advanced technology enables us to develop and produce oil 
and natural gas with far less impact on the environment than 
even 10 years ago. A 1990 DOE study of environmental benefits 
of today's technology found: With advanced technologies the oil 
and gas industry can pinpoint resources more accurately, 
extract them more efficiently, and with less surface area and 
with less surface disturbance, minimizing associated waste, and 
ultimately restore sites to original or better condition.
    Even with these advances in technology, the domestic 
producing industry is not asking to drill in areas set aside by 
acts of Congress. We seek solely to access lands designated as 
multiple use by Congress so that exploration and production can 
take place in an environmentally compatible manner.
    The roadless rule continues the trend towards less 
development of the natural resources beneath Federal lands. The 
resulting decrease in petroleum activities will have a 
significant impact on jobs and local economies. Moreover, the 
withdrawal of these lands from leasing will have a seriously 
negative impact on the U.S. Treasury and State governments. The 
Forest Service rule will cost the Federal Government and State 
governments millions of dollars in lost leasing revenues and 
production royalties. Revenues will steadily decrease if 
currently producing oil and gas new leases are not continued.
    One argument advanced by proponents of the roadless rule is 
the high cost of maintaining roads. In the proposed rule, the 
Forest Service claimed a $10 billion backlog for maintenance 
and reconstruction of existing roads. However, the oil and gas 
industry funds the construction, maintenance and reclamation of 
the roads needed to find and produce oil and gas beneath Forest 
Service lands, and if a prospect turns out to be a dry hole, 
the industry removes the road and reclaims the land.
    This industry is very concerned that the roadless rule has 
withdrawn 60 million acres without a balanced assessment of the 
energy implications of such a decision. This rule prohibits 
activities that are consistent with congressionally mandated 
multiple use, and we believe the rule will inflict economic 
harm to many people, including residents of local communities.
    We urge Congress to carefully review the final roadless 
rule. A new plan can be developed so that a projected 11 
trillion cubic feet of natural gas can be produced in an 
environmentally compatible manner.
    Overall, our energy policy needs to have the following 
characteristics. We need to balance energy needs with 
environmental needs. We need to fully staff our regulatory 
offices. We need to streamline the permitting processes, and we 
need processes that in fact can change and be flexible over 
time, incorporating the facts that we will see improvements in 
technology over time. Thank you very much.
    [The prepared statement of Mr. Segner follows:]

 PREPARED STATEMENT OF EDMUND P. SEGNER, PRESIDENT, EOG RESOURCES, INC.

    Good afternoon. My name is Edmund Segner, president of EOG 
Resources, Inc., one of the largest independent producers of oil and 
natural gas in the United States.
    Thank you for inviting us to testify. I am a member of the 
Executive Committee of the Domestic Petroleum Council and today I am 
also testifying on behalf of the American Petroleum Institute, the 
Independent Petroleum Association of America, and Public Lands 
Advocacy, who together speak for thousands of oil and natural gas 
producing companies in the United States. I will discuss the energy 
implications of the U.S. Forest Service (USFS) Roadless Rule that was 
finalized in January 2001.
    The U.S. oil and natural gas industry has a long record of 
providing a reliable and affordable supply of energy to American 
families. At the same time, the federal government has always played a 
pivotal role in determining how well producers meet U.S. energy needs. 
With U.S. energy demand now at an all-time high, it is important that 
government and industry develop a workable national energy policy that 
both protects the environment and delivers the energy to ensure 
continued U.S. prosperity. Both goals can be achieved.
    My testimony focuses on Forest Service multiple use lands 
containing oil and natural gas resources that were placed off limits to 
exploration and production as part of the so-called ``Roadless Rule.'' 
The effect of that rule is to put off limits lands estimated to hold 
between 3.5 and 23.1 trillion cubic feet (Tcf) of natural gas. The 
final rule chose to ignore such vast potential reserves despite our 
industry's comments highlighting those energy implications.
    Today, we import 57 percent of our crude oil. Last year's gasoline 
price volatility was due in part to a cutback in production by foreign 
oil producing countries even as demand grew rapidly. While we cannot 
eliminate our dependence on imported oil, there are many things that 
can be done to offset it. And one of them is to do all we can to 
encourage greater production in this country of all kinds of energy.
    Unlike crude oil, most of the natural gas we use comes from U.S. 
sources. According to a study by the National Petroleum Council (NPC)--
an Energy Department advisory group--U.S. natural gas demand will rise 
by more than 30 percent by the year 2010, and by 60 percent to an 
estimated 36 Tcf by 2020.
    We will need an additional seven trillion cubic feet of natural gas 
annually by the end of this decade, and 14 Tcf a year in additional 
supplies in less than 20 years. Almost half of that will be needed to 
produce electricity because many new power plants are predicted to be 
powered by natural gas.
    The 1999 NPC study that produced the numbers on natural gas demand 
also found that producers will have to invest almost $660 billion in 
new capital to meet that increased need for energy over the next 
quarter century. The study also concluded the United States is capable 
of meeting this additional demand, but only if energy companies are 
given greater access to available federal lands that are now off limits 
or severely restricted as a result of discretionary federal actions.
    There must be a new policy permitting companies to explore for, and 
produce in multiple-use federal lands, including some of those placed 
off limits by the USFS.

                     THE EFFECTS OF THE FINAL RULE

    A recent study conducted for the Department of Energy in the last 
days of the Clinton Administration on the energy implications of the 
Roadless Rule estimated that the new rule would completely close to 
development 9.4 Tcf of the total 11 Tcf of natural gas found on the 
lands covered by the initiative.
    The study also illustrates the casual disregard given to energy 
values in the USFS Rule. More than 80 percent of the predicted 11 Tcf 
of natural gas is located on just five percent of the land covered by 
the Forest Service rule on roadless construction. In other words, if 
the Forest Service had left out that five percent, it would have made 
available the vast majority of the natural gas beneath USFS lands in 
the Rocky Mountain region. It is precisely this type of cavalier 
dismissal of energy values in federal land use decision-making that has 
aggravated our current energy difficulties.
    Specifically, the new rule bans road reconstruction, thus 
effectively creating new roadless areas in lands that have previously 
been available for multiple use. As a result, the Forest Service is 
circumventing congressional intent, and bans activities that are 
consistent with multiple use.
    Moreover, the Rule effectively withdraws more public lands from oil 
and gas development without justification, to the detriment of the 
nation's domestic energy supply. It also exacts costs from local 
economies in affected states and causes a decline in federal revenues 
from bonus bids, rents and royalties on exploration and production on 
federal lands.
    When the Forest Service devised its long-term strategic plan in 
1990, under the Resource Planning Act, its stated petroleum leasing 
strategy was designed to ``meet most demands for access to explore and 
develop mineral resources, except when doing so would pose unacceptably 
high risks to other resources.''
    This goal was articulated by the agency in the aftermath of a 1988 
controversy in which the Forest Service admitted that it paid ``little 
attention . . . to minerals while making land use decisions that 
restrict mineral exploration access.'' Since that time, the managers of 
the National Forests have paid minimal attention to mineral resources 
in drafting their land-use plans. As a result, a vast amount of Forest 
Service acreage had been placed off-limits to oil and gas leasing prior 
to the final Roadless Rule.
    In the last administration, the Forest Service asserted that its 
policies and road construction bans were based on goals that have 
changed over the years, from a system ``largely funded and constructed 
to develop areas for timber harvesting and to allow the development of 
other resources. In the last two decades, interest in the appropriate 
uses of the resources . . . has shifted toward recreation and 
wildlife.''
    This shift away from development of the natural resources on 
federal lands, without a balanced assessment of competing uses, is of 
great concern to the oil and gas industry. From 1983 to 1996, oil and 
gas leasing on National Forest and Bureau of Land Management lands in 
eight western states declined by a drastic 72 percent, from 114.2 
million acres to 32.6 million acres. Across the entire National Forest 
system, lands in Designated Wilderness Areas, which are barred from 
petroleum leasing, increased substantially--from 9.3 million acres in 
1964 to 35 million acres in 1996. Moreover, nearly 6.1 million acres of 
Forest Service lands remain in limbo as Wilderness Study Areas. The 
Forest Service decisions regarding potential Wilderness were made as a 
result of the Roadless Area Review and Evaluation (RARE) I and II 
processes, and what industry terms RARE III, which was conducted as 
part of the Forest Service land and resource management planning 
process completed between 1985 and 1990.
    It is evident that the real issue at stake is expanding wilderness 
acreage throughout the entire National Forest System. The first 
Wilderness designated by Congress in 1964 totaled 9 million acres. 
Since then, an additional 100 million federal acres have been 
designated as Wilderness nationwide. In addition, other categories, 
including the Forest Service's ``further planning'' areas, recommended 
Wilderness Areas, and Wilderness Study Areas (designated by the agency 
and Congress), amount to more than 27 million acres. Combined with 
other set-asides, such as national parks and refuges, native claims 
selections in Alaska, and special management areas, more than 50 
percent of federal lands--some 300 million acres--are already 
completely off-limits to oil and gas leasing and exploration. Of the 
federal lands available to leasing, more than half are subject to 
severely restrictive land classifications or lease stipulations. The 
cumulative effects of this expansion have major consequences for those 
whose role in the economy depends on important resources located on 
federal lands and for the nation.

                               TECHNOLOGY

    Any discussion of increased access to natural gas reserves 
inevitably turns to the technology used in the 21st century to find and 
remove the gas.
    A 1999 Department of Energy report entitled, Environmental Benefits 
of Advanced Oil and Gas Exploration and Production Technology had this 
to say about the industry's approach to protecting the environment:

        ``. . . innovative E&P approaches are making a difference to 
        the environment. With advanced technologies, the oil and gas 
        industry can pinpoint resources more accurately, extract them 
        more efficiently and with less surface area and with less 
        surface disturbance, minimize associated wastes, and, 
        ultimately, restore sites to original or better condition.
          (The industry) has integrated an environmental ethic into its 
        business and culture and operations (and) has come to recognize 
        that high environmental standards and responsible development 
        are good business.''

    These advances in technology apply to exploration and production on 
hundreds of millions of acres of lands owned by the federal government. 
However, the domestic producing industry is not asking to drill on 
parklands or in wilderness areas set aside by Acts of Congress. Rather, 
we seek access to lands designated as ``multiple use'' by Congress on 
Forest Service lands so that so that exploration and production can 
take place in an environmentally compatible manner.
    Critics often portray the industry as careless about environmental 
concerns. They have probably never visited a rig where safety and 
environmental protection are the central concerns, regardless of their 
location, and where our obligations with the government require us to 
return the land to its original status once oil or gas production 
ceases.

                            ECONOMIC IMPACTS

    The Roadless Rule continues the trend toward less development of 
the natural resources beneath federal lands. No new leases of Forest 
Service lands could be granted where roads must be constructed to 
achieve the purposes of the lease. The resulting decrease in petroleum 
activities will have a significant impact on jobs. Drilling activities 
for a single well require as many as 20 workers for up to three months, 
generating some $150,000 in wages. Another $1 million must be expended 
on equipment, goods and services for a typical well. Most of this money 
is spent in the local area where a well is drilled--for severance 
taxes, production royalties, payments in lieu of taxes (PILT), income 
taxes and so forth, where previous decreases in oil and gas activity 
have already had a significant economic impact.
    Moreover, the withdrawal of these lands from leasing will have a 
seriously negative impact on the U.S. Treasury. Under the competitive 
leasing system, the federal government receives a minimum bid of $2 an 
acre to lease these lands for petroleum development. By imposing this 
moratorium on roads--which are essential to oil and gas development--
the Forest Service is foregoing a potential for at least $66 million in 
leasing revenues. If there is more than one company interested in 
leasing in a parcel of land, the high lease bid in the past has gone up 
to as high as $1,000 an acre or more. Bonus bids amounting to the first 
year's rent are also paid at the time a lease is sold. In addition, the 
Roadless Rule not only diminishes lease rentals and bonuses, but also 
production royalties that would be paid during the life of production 
of the lease.
    Petroleum reserves and federal ownership of lands are extensive in 
the West and oil and gas are important sources of state revenues. In 
Montana, for example, oil and gas producers and refiners paid nearly 
$100 million in state and local taxes in 1996. In Wyoming, the oil and 
gas production industry paid $378 million, and in North Dakota, $53 
million. In Utah, the state severance tax on oil and gas produced $46 
million in 1983--but only $12 million in 1996.
    Revenues, in these and other states, will steadily decrease if 
currently producing oil and gas leases on Forest Service lands are not 
augmented by new leases and subsequent development. The Roadless Rule 
will discourage, delay and very likely eliminate further petroleum 
activity on Forest Service lands.

                         ROAD MAINTENANCE COSTS

    One argument advanced by proponents of the Roadless Rule is the 
high cost of maintaining roads. In the proposed rule, the Forest 
Service claimed a $10 billion backlog for maintenance and 
reconstruction of existing roads on its lands. However, it should be 
noted that the oil and gas industry funds the private construction, 
maintenance and reclamation of the roads needed to find and produce oil 
and gas from beneath Forest Service lands. It does not depend on 
assistance from the federal government. Moreover, if a prospect turns 
out to be a ``dry hole,'' the industry removes the road and reclaims 
the land. The only time the petroleum industry leaves intact a road 
that it has constructed is when the Forest Service requests it. Thus, 
the Forest Service is only required to maintain roads for public use. 
Ironically, while road maintenance payments to the Forest Service have 
declined in recent years, it is the decreasing access of commercial 
users, including the oil and gas industry that has led to this decline.

                             MULTIPLE USES

    It is also important to note that oil and gas development does not 
prevent leased land from being used for other purposes or by other 
users. Under the terms of a federal oil and gas lease, the operator 
cannot construct housing, farm the land, or remove any minerals other 
than oil and natural gas. The Forest Service is free to grant permits 
for non-petroleum uses to others or allow activities which require 
roads but do not require permits, such as mountain biking, cross-
country skiing, fishing, hunting, sight-seeing or picnicking.
    The oil and gas industry supports reasonable measures to protect 
fish, wildlife and environmental resources. This industry has 
repeatedly demonstrated its commitment to operating in an 
environmentally compatible manner, with vigilant consideration given to 
sensitive resource values. This record should provide a basis for a 
policy that does not prevent oil and gas activity in the unroaded 
areas. Moreover, the Forest Service's authority under current policies 
gives the agency almost complete control over how surface resources are 
managed, providing additional assurance that exploration and production 
will be conducted with respect for environmental values.

                               CONCLUSION

    This industry is very concerned that the Roadless Rule has placed 
60 million acres in de facto wilderness withdrawal without a balanced 
assessment of the energy implications of such a decision. These lands 
have repeatedly been found not to meet the 1964 Wilderness Act 
criteria, and were released to multiple use during the comprehensive 
RARE I and II processes and the Forest Service planning process. This 
Rule appears to be an alternate method of prohibiting activities that 
are consistent with congressionally mandated multiple-use. The Rule 
imposes high costs on many people--severe economic impacts on local 
communities, effects on the price and availability of oil and gas, 
hardrock minerals, lumber and paper products and other goods and 
services. Moreover, there is also a cost in more limited recreational 
opportunities to the public. The gain--preserving unroaded acreage with 
the National Forest System--does not appear to equal the cost.
    We urge Congress to carefully review the Forest Service's Final 
Roadless Rule. A new plan can be developed in these unroaded areas 
without halting all activities on these lands so that a projected 11 
trillion cubic feet of needed domestic natural gas can be produced in 
an environmentally compatible manner.
    We must find a way to eliminate government obstacles and regulatory 
complexity so that our companies will be better able to produce the 
enormous amounts of energy that will be required over the next decade 
and beyond. That includes the Forest Service's capricious rule banning 
new road construction on multiple use Forest Service lands that are 
most promising for oil and gas exploration.

    Senator Cantwell. Thank you, Mr. Segner. Finally, Professor 
Tom McGarity from the University of Texas School of Law at 
Austin. Thank you for being with us as well.

STATEMENT OF PROFESSOR THOMAS O. McGARITY, UNIVERSITY OF TEXAS 
                   SCHOOL OF LAW, AUSTIN, TX

    Mr. McGarity. Than you. I am a professor of law at the 
University of Texas School of Law where I have taught 
administrative law and environmental law for the last 20 years. 
I am pleased to testify here on the legal issues concerning the 
Forest Service's final rule on roadless areas and the Bush 
administration's response to that rule. The testimony that I am 
giving, however, I represent only myself and I do not 
necessarily represent the views of the University of Texas.
    As is typically the case when an administration during the 
transition between administrations and the following 
administration, the volume of proposed and final regulations 
issued by many executive departments increases--that happened 
in the Clinton administration. This is not at all unusual for 
any decision-making institution to increase its output at the 
end of its appointed term.
    The roadless rule was one of these. It was not an ill-
conceived product of a hasty decision-making process. As 
Senator Cantwell has pointed out, there was a great deal of 
notice and comment, a great deal of public participation with 
respect to this rule over a long period of time. Impressive to 
me, more impressive than 800,000 form letters sent in is the 
430 public meetings which were attended by 23,000 people. That 
is a pretty impressive record of public participation to me. On 
January 20, the White House Chief of Staff, Andrew Card, wrote 
a memorandum to the heads of the agencies asking them to 
withdraw rules that had been submitted and published in the 
Federal Register--or at least to stay them, I'm sorry, for a 60 
day period.
    It is certainly conceivable that at the end of this 60 day 
period the Forest Service's 60 day stay will either be extended 
or perhaps even be made indefinite. I think that the demand 
that the agency extend the effective date for 60 days was, as 
at least explained in the Federal Register notices, violative 
of the Administrative Procedures Act. The rulemaking process is 
by its very nature open ended, and one administration may 
certainly rescind or replace a rule issued by a prior 
administration; however, a regulation may only be deferred, 
modified, withdrawn, or repealed through the same notice and 
comment procedures that the APA, the Administrative Procedures 
Act, prescribes for promulgating regulations in the first 
instance.
    Moreover, any decision to appeal, withdraw, defer, or amend 
a regulation may ordinarily be accomplished only with the same 
degree of study, analysis, and deliberation, and supported by a 
rulemaking record.
    The postponement of the effective date of a rule is itself 
a rule, and therefore rulemaking procedures should be 
undertaken in that exercise. So long as the action does not 
come within one of the exceptions to notice and comment 
rulemaking in section 553 of the Administrative Procedures Act, 
the postponement may legally be accomplished only through the 
procedures prescribed therein. There was a boilerplate 
paragraph in the Forest Service rule, as in all of the rules 
that were issued pursuant to the Card memorandum, taking the 
position that it was either a procedural rule--which it clearly 
is not--or that there was good cause for the 60 day 
postponement, but with little explanation for that, other than 
there had been a change of administrations. And the law is very 
clear that simple deadline or change of administrations is not 
good cause for extending the effective date of a rule.
    It is possible that the Forest Service may, during the time 
that it reviews this rule, decide to withdraw or amend the 
rule. It has certainly been suggested here that that is an 
action the Forest Service should take. Two important 
impediments stand in the way of an attempt to implement that 
option. First, any rescission must be accomplished through 
notice and comment rulemaking with full public participation. 
Second, any such action must be supported with data and 
analysis capable of demonstrating that the rescission or 
modification is not arbitrary and capricious. The leading 
Supreme Court holding on this question, the State Farm case, 
says that agency rule rescissions must be reviewed with the 
same degree of scrutiny as the review of initial rule 
promulgations.
    The Court said, and I quote, ``an agency changing its 
course by rescinding a rule is obligated to supply a reasoned 
analysis for the change beyond that which may be required when 
an agency does not act in the first place.''
    I have submitted my full comments for the record and I ask 
that they be printed with the hearings. I would simply conclude 
with the conclusion that the Chief of Staff's memorandum did 
send a message to ordinary people that it is acceptable to 
circumvent the legally binding procedural requirements set out 
in the Administrative Procedures Act. I think that neither the 
President nor Congress should reinforce that message by 
arbitrarily rescinding, at the behest of a few interests, 
protective regulations like the roadless rule that have been 
years in the making. Thank you.
    [The prepared statement of Mr. McGarity follows:]

   PREPARED STATEMENT OF PROFESSOR TOM MCGARITY, UNIVERSITY OF TEXAS 
                       SCHOOL OF LAW, AUSTIN, TX

    My name is Tom McGarity. I hold the W. James Kronzer Chair in Law 
at the University of Texas School of Law, where I have for the last 20 
years taught courses in Administrative Law and Environmental Law. As my 
attached Curriculum Vitae indicates, I have published many articles and 
two books in the area of Administrative Law and Regulatory Reform, and 
I have co-authored a casebook on Environmental Law. I am, therefore, 
pleased to testify today on the Forest Service's Final Rule on Roadless 
Area Conservation and the Bush Administration's response to those 
regulations.

                  THE ROADLESS AREA CONSERVATION RULE.

    As is typically the case during the transition between one 
Administration and the following Administration, the volume of proposed 
and final regulations issued by many Executive Branch agencies 
increased during the last few weeks of the Clinton Administration. The 
same thing happened at the end of the Carter and Bush Administrations 
when a President from a different political party was elected.
    It is not at all unusual for a decisionmaking institution to 
increase its output substantially at the end of its appointed term. The 
volume of Supreme Court opinions invariably increases dramatically in 
June and July as the October term comes to an end. Legislative bodies, 
including this body, typically pick up the legislative pace and enact a 
disproportionate number of laws at the end of a legislative session. It 
is in the nature of a deliberative law-making body to deliberate longer 
and harder over difficult decisions and, consequently, to leave them to 
the end of the deliberations.
    One of the regulations issued at the end of the Clinton 
Administration was the Forest Service's Final Rule on Roadless Area 
Conservation.\1\ This regulation was not an ill-conceived product of a 
hasty decisionmaking process. The Forest Service proposed to suspend 
road construction and reconstruction in most inventoried roadless areas 
in January, 1998, three years before the issuance of the final rule.\2\ 
After considering more than 119,000 public comments on the proposal, 
the Forest Service a little more than a year later issued an interim 
rule temporarily suspending road construction and reconstruction in 
most inventoried roadless areas.\3\
    Having temporarily suspended road construction and reconstruction 
in roadless areas, the Forest Service began the process of providing 
long-term protection of the areas by announcing, in October, 1999, that 
it planned to initiate a rulemaking and to prepare a Draft 
Environmental Impact Statement (DEIS) analyzing various alternative 
approaches to protecting roadless areas.\4\ After issuing this notice, 
the Forest Service conducted 187 public meetings that were attended by 
about 16,000 people, and the agency received more than 517,000 
responses.\5\
    On May 10, 2000, the agency issued a proposed regulation,\6\ and 
soon thereafter it made the DEIS available to the public.\7\ The 
documents and much other background information were published on the 
agency's website.\8\ The agency hosted two cycles of public meetings on 
the proposed rule and the DEIS, resulting in a total of about 430 
public meetings attended by more than 23,000 people.\9\ On November 17, 
2000, the agency published a notice announcing the availability of the 
Final Environmental Impact Statement (FEIS). By the time that the 
rulemaking period had closed, the agency had received more than 60,000 
original letters, 90,000 e-mail transmissions and one million postcards 
or other written submissions.\10\ The agency carefully analyzed those 
submissions in a full volume of the FEIS and responded to significant 
negative comments in the preamble to its final rule.\11\
    All interested members of the public thus had ample opportunity to 
present their views and to have them considered by the agency. 
Moreover, the preamble to the final rule carefully analyzed the public 
comments on the alternatives identified in the DEIS, and it changed 
various aspects of the regulation in light of the comments that it 
received.\12\ The final rule has been challenged in a federal district 
court in Idaho on the ground that it is arbitrary and capricious. 
Assuming that the rule is not withdrawn, that challenge will presumably 
go forward and the court will address the merits of the regulation 
under the Multiple-Use Sustained-Yield Act of 1960 \13\ and the 
National Environmental Policy Act.\14\

       THE CARD MEMORANDUM AND SUBSEQUENT DELAY OF EFFECTIVE DATE

    On January 20, 2001, White House Chief of Staff Andrew Card wrote a 
memorandum to the heads and acting heads of all Executive Branch 
agencies to communicate to them President Bush's ``plan for managing 
the Federal regulatory process at the outset of his Administration.'' 
\15\ Subject to some limited exceptions for emergencies and urgent 
situations relating to public health and safety, the memorandum asked 
the agency heads to ``withdraw'' any regulation that had been sent to 
the Office of the Federal Register, but had not been published in the 
Federal Register. The regulation was not to be published in the Federal 
Register ``unless and until a department or agency head appointed by 
the President after noon on January 20, 2001, reviews and approves the 
regulatory action.'' \16\ With respect to final regulations that had 
been published in the Federal Register but had not taken effect, the 
agency heads were asked to ``temporarily postpone the effective date of 
the regulations for 60 days.'' \17\ The memorandum defined the term 
``regulation'' to mean ``any substantive action by an agency (normally 
published in the Federal Register) that promulgates or is expected to 
lead to the promulgation of a final rule or regulation, including 
notices of inquiry, advance notices of proposed rulemaking, and notices 
of proposed rulemaking.'' \18\
    The Forest Service responded to the Card Memorandum by publishing 
on February 5, 2001, a notice in the Federal Register ``temporarily 
delay[ing] for 60 days the effective date'' of the roadless area rule, 
which the agency had previously published in the Federal Register.\19\ 
Although it is not clear how the Forest Service will proceed at the end 
of the 60-day delay period, it is certainly conceivable that the agency 
will suspend the effective date indefinitely while it decides whether 
to modify portions of it or to rescind it altogether.

                       LEGAL AND POLICY ANALYSIS

    The rulemaking process is by its very nature open-ended, and rules 
that are promulgated during one administration may be rescinded and 
replaced during another, if the relevant agency statutes give the 
agencies discretion to do so. The agencies' substantive statutes are 
the determinants of the substantive legitimacy of the regulations and 
of their amendment or repeal. Unless an agency's statute prescribes a 
different process, the Administrative Procedure Act (APA) is the 
determinant of the procedural aspects of rule promulgation, amendment 
and repeal.\20\
    In general, a regulation may only be deferred, modified, withdrawn 
or repealed through the same notice-and-comment rulemaking procedures 
that the APA prescribes for promulgating regulations in the first 
instance. Moreover, any decision to repeal, withdraw, defer, or amend a 
regulation should ordinarily be accomplished with the same degree of 
study, analysis and deliberation that went into the promulgation of 
those regulations. Anything less would represent a disservice to the 
intended beneficiaries of the protections that the rules provided. 
Legal considerations aside, it is bad public policy cavalierly to throw 
out important environmental protections solely because they were 
promulgated during a previous administration. It makes no more sense to 
erect a presumption against retaining regulations promulgated near the 
end of a presidential administration than it would make to erect a 
presumption against the wisdom or legitimacy of legislation enacted 
during the end of a congressional session.

      POSTPONEMENT OF THE EFFECTIVE DATE OF THE ROADLESS AREA RULE

    As an initial matter, the APA exempts rules involving ``public 
property'' from notice-and-comment rulemaking procedures. In 1971, 
however, the United States Department of Agriculture (USDA), acting 
pursuant to a recommendation of the now-defunct Administrative 
Conference of the United States, published a regulation voluntarily 
waiving this exemption.\21\ This regulation ``fully bound the Secretary 
to comply thereafter with the procedural demands of the APA.'' \22\ 
Thus, until such time as it revokes the 1971 regulation, the Forest 
Service must follow the prescriptions of section 553 of the APA in 
promulgating regulations related to Forest Service lands.
    Once a rule has been published in the Federal Register, it is a 
final rule for purposes of the APA, even if the effective date of one 
or more of its legally binding requirements occurs some time in the 
future.\23\ The agency may not modify the rule except through the 
section 553 notice-and-comment rulemaking procedures.\24\ The Card memo 
requested the executive branch agencies to ``temporarily postpone the 
effective date'' of the already published regulations for 60 days to 
allow newly appointed agency heads to review and approve those 
regulations,\25\ and the Forest Service complied with that request.
    The law is clear that the postponement of the effective date of a 
rule, either indefinitely or for a set period of time, is 
``rulemaking'' within the meaning of the APA. The court in Natural 
Resources Defense Council, Inc. v. EPA,\26\ the leading case on the 
subject, observed that ``it makes sense to scrutinize the procedures 
employed by the agency all the more closely where the agency has acted, 
within a compressed time frame, to reverse itself by the procedure 
under challenge.'' \27\ In ``postponing the effective date'' of the 
rule, the agency in that case had ``reversed its course of action up to 
the postponement,'' and it had done so ``without notice and an 
opportunity for comment, and without any statement . . . on the impact 
of that postponement.'' \28\ The indefinite postponement of the 
regulations was a ``rule'' within the meaning of the APA that could 
lawfully be promulgated only through the procedures provided for in the 
APA.
    So long as the action postponing the regulation does not come 
within one of the exceptions listed in section 553 of the APA, the 
postponement may legally be accomplished only through the notice-and-
comment rulemaking procedures provided for in section 553. The 
exemptions, in turn, are quite narrow. As the D.C. Circuit Court of 
Appeals has noted: ``it should be clear beyond contradiction or cavil 
that Congress expected, and the courts have held, that the various 
exceptions to the notice-and-comment provisions of section 553 will be 
narrowly construed and only reluctantly countenanced.'' \29\
    The Forest Service's Federal Register notice for the 60-day delay 
of the roadless area rule contained a boilerplate explanation for why 
the delay was either a ``rule of procedure'' within section 553's 
exemption for such rules from the notice-and-comment rulemaking 
requirements or were subject to the ``good cause'' exception.\30\ In 
relevant part, the boilerplate reads as follows:

          To the extent that 5 U.S.C. section 553 applies to this 
        action, it is exempt from notice and comment because it 
        constitutes a rule of procedure under 5 U.S.C. section 
        553(b)(A). Alternatively, the Department's implementation of 
        this rule without opportunity for public comment, effective 
        immediately upon publication today in the Federal Register, is 
        based on the good cause exceptions in 5 U.S.C. section 
        553(b)(B) and 553(d)(3). Seeking public comment is 
        impracticable, unnecessary and contrary to the public interest. 
        The temporary 60-day delay in effective date is necessary to 
        give Department officials the opportunity for further review 
        and consideration of new regulations, consistent with the 
        Assistant to the President's memorandum of January 20, 2001. 
        Given the imminence of the effective date, seeking prior public 
        comment on this temporary delay would have been impractical, as 
        well as contrary to the public interest in the orderly 
        promulgation and implementation of regulations. The imminence 
        of the effective date is also good cause for making this rule 
        effective immediately upon publication.\31\

The boilerplate explanation for neither exemption is at all convincing.

    The 60-day suspension of the effective date of the roadless area 
rule issued in response to the Card memo cannot reasonably be 
characterized as a ``procedural rule'' within the meaning of the APA. 
The law is well established that ``[a] procedural rule is one that does 
not itself alter the rights or interests of parties, although it may 
alter the manner in which the parties present themselves or their 
viewpoints to the agency.'' \32\ Agency actions that ``jeopardize or 
substantially effect the rights and interests of private parties'' are 
not procedural rules.\33\ The effective date of a substantive rule is a 
substantive, not a procedural component of that rule. Procedural rules 
are rules that govern the procedures under which an agency exercises 
its powers or under which private parties interact with the agency. 
They address how the agency goes about its substantive work.\34\ They 
do not affirmatively implement the agency's substantive 
responsibilities. The roadless area rule implemented the Forest 
Services substantive responsibilities under the Multiple-Use Sustained-
Yield Act of 1960.
    Just as clearly, the suspension did not come within section 553's 
``good cause'' exemption. An agency may rely upon that exemption when 
it ``for good cause finds . . . that notice and public procedure 
thereon are impracticable, unnecessary, or contrary to the public 
interest.'' \35\ The courts have repeatedly held that the ``good 
cause'' exemption is to be ``narrowly construed and only reluctantly 
countenanced . . . [and] should be limited to emergency situations.'' 
\36\ In particular, ``the mere existence of deadlines for agency action 
. . . [can]not in itself constitute good cause for a 
Sec. Sec. 553(b)(B) exception.'' \37\ Otherwise the ``good cause'' 
exception could easily swallow the rule that regulations must be 
promulgated through notice-and-comment procedures.\38\ The good cause 
exemption is not an `escape clause' that may be arbitrarily utilized at 
the agency's whim.'' \39\
    The boilerplate rationale that the Forest Service provided in its 
Federal Register notice was that the ``temporary 60-day delay in 
effective date is necessary to give Department officials the 
opportunity for further review and consideration of new regulations, 
consistent with the Assistant to the President's memorandum of January 
20, 2001.'' An agency's desire to re-consider a regulation that it has 
already considered cannot conceivably constitute the sort of emergency 
that is required to support the ``good cause'' showing under section 
553. An agency is free to reconsider a previously promulgated 
regulation while it remains in effect by issuing a notice of proposed 
rulemaking, inviting public comment on any changes the agency has in 
mind, and either withdrawing the previously promulgated rule or 
promulgating an amended rule. The Forest Service's postponement of the 
effective date of the final roadless area regulation cannot possibly 
fit within the intentionally narrow ``good cause'' exemption to section 
553's notice and comment procedural requirements.

                  WITHDRAWAL OF PUBLISHED FINAL RULES

    The Card memo contemplated that ageny heads would ``review and 
approve'' postponed published final rules. Although not made explicit, 
it no doubt also contemplated that the agencies would rescind 
regulations that did not receive the approval of the agency heads.\40\ 
Thus, the Forest Service may decide to withdraw or amend the roadless 
area rule. Two important impediments, however, stand in the way of any 
attempt to implement that option.
    First, as discussed above, any rescission or modification of a 
published final rule must be accomplished through notice-and-comment 
rulemaking procedures, unless the action comes within the good cause 
exception. Section 553 defines ``rulemaking'' as ``agency process for 
formulating, amending, or repealing a rule.'' \41\ Hence, the amendment 
or repeal of a final rule must be accomplished through section 553 
notice-and-comment rulemaking procedures.
    Second, and perhaps more importantly, any such action must be 
supported with data and analysis capable of demonstrating that the 
rescission or modification is not ``arbitrary and capricious.'' \42\ In 
the leading Supreme Court opinion on this question, the Court held that 
courts should review agency rule rescissions with the same degree of 
scrutiny as they review initial rule promulgations, and it explicitly 
rejected the claim that the courts should review the repeal of a 
regulation as a decision declining to promulgate regulation in the 
first place.\43\ The Court noted that ``an agency changing its course 
by rescinding a rule is obligated to supply a reasoned analysis for the 
change beyond that which may be required when an agency does not act in 
the first instance.'' \44\ The Court then articulated the test for 
``substantive'' judicial review of agency action under the arbitrary 
and capricious test.\45\ The same standard applies to the indefinite 
suspension of a previously promulgated rule.\46\
    As noted above, the Forest Service assembled a massive record on 
the roadless area rule, and it supported that rule with extensive 
analysis both in the FEIS and the preamble to the Notice of Final 
Rulemaking. While it is possible that the agency could adequately 
justify a decision to amend or repeal that rule with less extensive 
data and analyses than those that went into the promulgation of the 
original rule, a reviewing court would no doubt insist that the agency 
back up such an action with a substantial record and very strong 
reasons. The mere fact of a change of Administrations is not a 
sufficient justification for the modification or repeal of a 
promulgated rule.

           REPEALING RULES UNDER THE CONGRESSIONAL REVIEW ACT

    One alternative to the unlawful postponement or withdrawal of a 
published final rule is action under the Congressional Review Act to 
rescind a major rule. When Congress takes this rather extreme step, 
however, the rescinded regulation cannot be promulgated in 
``substantially the same form'' without explicit authorizing 
legislation.\47\ Because it has the effect of undoing all of the work 
that the agency has put into the rule, this relatively blunt tool has 
the potential to waste huge amounts of public and private resources. In 
the case of the roadless area rule, the Forest Service has spent years 
of time and huge quantities of its limited analytical resources on the 
recently promulgated regulation. The congressional review process is 
not likely to devote nearly the same degree of care and analysis to the 
rule, should Congress elect to take it up.
    Congress should not hastily exercise its power to undo the 
legitimate products of a deliberative rulemaking process. In general, 
neither the offices of individual congresspersons nor the committee 
staffs are populated with persons who have the technical expertise to 
second-guess the technical conclusions of agency staff and upper-level 
agency decisionmakers. With the demise of the Office of Technology 
Assessment in 1995, Congress lost its institutional capacity to elicit 
the technical advice of experts in particular subject areas relevant to 
federal regulation. The primary determinants of congressional decisions 
under the Congressional Review Act are likely to be political, not 
technical considerations. The fate of individual regulations, long in 
the making, should not turn on a hasty and unprincipled exercise of raw 
political power. In the years since it enacted the Congressional Review 
Act, Congress has wisely refrained from using that statute to reward 
political benefactors and punish political enemies. It should continue 
to do so in the future.

                               CONCLUSION

    Like the Bush Administration before it, the Clinton Administration 
issued a comparatively large number of rules and proposed rules during 
its last few weeks. When Chief of Staff Card, at the President's 
request, asked agencies to postpone the effective date of published 
final regulations, he was asking them to take an action that was 
unlawful under the Administrative Procedure Act. The fact that it may 
be impossible, as a practical matter, for an affected citizen to 
challenge the unlawful conduct of the agencies in court does not render 
that conduct any less unlawful. Federal agencies should obey the law, 
just as they expect ordinary citizens to obey the law. The Chief of 
Staff, in asking the agencies to engage in unlawful conduct, sent a 
message to ordinary citizens that it is acceptable to circumvent 
legally binding procedural requirements in pursuit of political ends. 
Congress should not reinforce that message by arbitrarily rescinding, 
at the behest of a few special interests, protective regulations like 
the roadless area rule that have been years in the making.

                               END NOTES
     \1\ 66 Fed. Reg. 3244 (2001).
     \2\ See 66 Fed. Reg. at 3247.
     \3\ 64 Fed. Reg. 7290 (1999).
     \4\ 64 Fed. Reg. 56306 (1999).
     \5\ See 66 Fed. Reg. at 3248.
     \6\ 65 Fed. Reg. 30276 (2000).
     \7\ 65 Fed. Reg. 31898 (2000).
     \8\ 66 Fed. Reg. at 3248.
     \9\ Id.
    \10\ Id.
    \11\ Id.
    \12\ 66 Fed. Reg. at 3249-67.
    \13\ 16 U.S.C. Sec. Sec. 1600, et seq.
    \14\ 42 U.S.C. Sec. 4321, et seq.
    \15\ Memorandum for the Heads and Acting Heads of Executive 
Departments and Agencies from Andrew H. Card, Jr., dated January 20, 
2001, 66 Fed. Reg. 7702 (2001) [hereinafter cited as Card memo].
    \16\ Id.
    \17\ Id.
    \18\ Id.
    \19\ Forest Service, Special Areas; Roadless Area Conservation: 
Delay of Effective Date, 66 Fed. Reg. 8899 (2001).
    \20\ 5 U.S.C. Sec. 551 et. seq.
    \21\ 36 Fed. Reg. 13804 (1971).
    \22\ Rodway v. USDA, 514 F.2d 809, 814 (D.C. Cir. 1975).
    \23\ Indeed, under section 553(d) of the APA, the effective date of 
a regulation is ordinarily at least 30 days after promulgation in the 
Federal Register.
    \24\ See Alaska Professional Hunters Association, Inc. v. FAA, 177 
F.3d 1030, 1034 (D.C. Cir. 1999) (the term ``rulemaking'' in the APA 
``includes not only the agency's process of formulating a rule, but 
also the agency's process of modifying a rule'').
    \25\ Card memo, supra, at 7702.
    \26\ 683 F.2d 752 (3d. Cir. 1982) (indefinite suspension of a 
published regulation is rulemaking that must follow notice-and-comment 
rulemaking procedures). See also Environmental Defense Fund, Inc. v. 
Environmental Protection Agency, 716 F.2d 915 (D.C. Cir. 1983) 
(attorney fee recovery case in which court noted that ``[flhe 
suspension or delayed implementation of a final regulation normally 
constitutes substantive rulemaking under the APA''); Environmental 
Defense Fund, Inc. v. Gorsuch, 713 F.2d 802, 816 (D.C. Cir. 1983) (``an 
agency action which has the effect of suspending a duly promulgated 
regulation is normally subject to APA rulemaking requirements'').
    \27\ 683 F.2d at 760.
    \28\ Id.
    \29\ New Jersey v. United States Environmental Protection Agency, 
626 F.2d 1038, 1045 (D.C. Cir. 1980).
    \30\ The agency did not claim that the suspension constituted an 
``interpretative rule'' or a ``statement of policy,'' both of which may 
be promulgated without full notice and comment procedures. That route 
was foreclosed by judicial opinions rejecting such contentions in other 
contexts. See Environmental Defense Fund, Inc. v. Gorsuch, 713 F.2d 
802, 816-17 (D.C. Cir. 1983).
    \31\ For other notices delaying previously published regulations 
pursuant to the Card memo, see Department of Health and Human Services, 
Public Health Service, Alcohol, Drug Abuse and Mental Health 
Administration (ADAMHA) Substance Abuse and Mental Health Services 
Administration (SAMHSA), Opioid Drugs in Maintenance and Detoxification 
Treatment of Opiate Addiction; Repeal of Current Regulations and. 
Issuance of New Regulations: Delay of Effective Date and Resultant 
Amendments to the Final Rule, 66 Fed. Reg. 15347 (2001); Department of 
Labor, Mine Safety and Health Administration, Diesel Particulate Matter 
Exposure of Underground Metal and Nonmetal Miners; Delay of Effective 
Dates, 66 Fed. Reg. 15032 (2001).
    \32\ Chamber of Commerce v. Department of Labor, 174 F.3d 206 (D.C. 
Cir. 1999).
    \33\ Thomas v. State of New York, 802 F.2d 1443, 1447 (D.C. Cir. 
1986).
    \34\ A possible example of a true procedural rule for which an 
agency legitimately extended a deadline pursuant to the Card memorandum 
is the revision of the Department of Housing and Urban Development's 
regulations for implementing the Freedom of Information Act. Department 
of Housing and Urban Development, Revision of Freedom of Information 
Act Regulations; Delay of Effective Date, 66 Fed. Reg. 8175 (2001).
    \35\ 5 U.S.C. Sec. 553(b)(B).
    \36\ Environmental Defense Fund, Inc. v. EPA, 716 F.2d 915, 920 
(D.C. Cir. 1983).
    \37\ United States Steel Corp. v. United States Environmental 
Protection Agency, 595 F.2d 207, 213 (5th Cir. 1979).
    \38\ See Council of the Southern Mountains v. Donovan, 653 F.2d 573 
(D.C. Cir. 1981) (finding good cause in the ``possibly unique'' 
situation in which: (1) the forces requiring the rule postponement were 
beyond the agency's control; (2) the agency acted diligently to 
overcome the hurdles erected by other parties; (3) the record strongly 
indicated that the agency intended to implement the regulations on 
schedule; (4) the agency deferred the implementation date for only a 
short time; and (5) government counsel assured the court that the 
regulations would be fully implemented by a date certain).
    \39\ American Federation of Govt'l Employees, AFL-CIO v. Block, 655 
F.2d 1153, 1156 (D.C. Cir. 1981) (quoting S. Rept. No. 752, 79th Cong., 
1st Sess. (1945)).
    \40\ At least one agency has done just that. On March 23, 2001, EPA 
published a notice of proposed rulemaking to extend indefinitely the 
final rule for arsenic in drinking water. Environmental Protection 
Agency, National Primary Drinking Water Regulations; Arsenic and 
Clarifications to Compliance and New Source Contaminants Monitoring: 
Delay of Effective Date, 66 Fed. Reg. 16134 (2001).
    \41\ 5 U.S.C. Sec. 551(5).
    \42\ 5 U.S.C. Sec. 706.
    \43\ Motor Vehicle Manufacturers Ass'n v. State Farm Mutual 
Automobile Insurance Co., 463 U.S. 29, 41-42 (1983).
    \44\ 463 U.S. at 42. See also Atchison, T.&S.F.R. Co. v. Wichita 
Bd. of Trade, 412 U.S. 800, 807-808 (1973) (observing that a ``settled 
course of behavior embodies the agency's informed judgment that, by 
pursuing that course, it will carry out the policies committed to it by 
Congress. There is, then, at least a presumption that those policies 
will be carried out best if the settled rule is adhered to.'').
    \45\ 463 U.S. at 43. The test prescribed by the court is as 
follows:
    Normally, an agency rule would be arbitrary and capricious if the 
agency has relied on factors which Congress has not intended it to 
consider, entirely failed to consider an important aspect of the 
problem, offered an explanation for its decision that runs counter to 
the evidence before the agency, or is so implausible that it could not 
be ascribed to a difference in view or the product ofagency expertise.
    Id.
    \46\ Public Citizen v. Steed, 733 F.2d 93 (D.C. Cir. 1984).
    \47\ Congress has exercised its power under the Congressional 
Review Act, enacted in 1996, on only one occasion--the recently 
rescinded OSHA Ergonomics standard.

    Senator Cantwell. Thank you, Professor McGarity.
    Senator Craig. Senator Cantwell, why do not you go ahead 
and start with questions.
    Senator Cantwell. I would be happy to, thank you Mr. 
Chairman.
    I think I will start with Dr. Morton. On your comments 
about the possible supply from these lands, it sounds like the 
last panel used a different formulation and came up with 75 
percent that was really extractable, there would be half a 
year's supply. Your numbers, as they relate to consumption, are 
approximately 21 to 29 days of oil supply and 2 to three months 
of natural gas supply. That is what your study and analysis 
show as far as what might actually be produced from the 
roadless areas?
    Dr. Morton. That is correct.
    Senator Cantwell. So why would we want to undertake these 
activities at such great cost? This seems almost like a guise 
by which to overturn the rule, when in my State we are seeing 
11 times the rate in the mid Columbia for electricity prices 
over last year. There are a lot more urgent questions people 
want answered today than whether or not energy companies can 
enter parts of our pristine forests to go and look for reserves 
that are only going to provide us with two to three months of 
supply over 20 years.
    Dr. Morton. Yeah, I spent several hours yesterday listening 
to the testimony on high gas prices in the West and it seemed a 
lot of the experts suggested that it has to do with refining 
capacity and bottlenecks in the infrastructure. And actually 
there is been articles showing increased profits for oil 
companies, they just had record profits, so I think that is 
probably a good place to focus some of our attention, not in 
the roadless areas.
    Senator Cantwell. But your point as well is that there have 
been years of opportunity to do resource extraction in these 
roadless areas and it has not happened. Probably for these same 
reasons.
    Dr. Morton. Yeah. I think these areas have a low potential 
to begin with. A lot of the high potential, as I mentioned the 
high potential areas are already under lease and they have 
difficult operating conditions, and they have been available 
for leasing for 60, 70 years and there has not been much 
interest. So I think the Forest Service did an adequate job in 
doing an analysis because if nobody has been interested in your 
product and they have the high potential lands already leased, 
I do not think it was worth taxpayer's dollars to spend a lot 
of time doing the analysis, I think--any more analysis than 
what they already did. So I think they did a good job.
    Senator Cantwell. Thank you. And Professor McGarity, I want 
to ask you a question because I want to make sure I understood 
you correctly. You believe that the rule is in force, and that 
the postponement of that rule is actually a----
    Mr. McGarity. The postponement of the effective date of the 
rule does not make it not a final rule. It is still a final 
rule. If it has not become effective yet, it can still have 
legal significance. And certainly to amend that rule even to 
postpone the effective date is itself a rulemaking process and 
requires notice and comment.
    Senator Cantwell. And so you believe that the Card memo 
does not quite meet that standard, that it is actually a 
violation of the APA?
    Mr. McGarity. Yes, I think the memo was urging agencies to 
violate the Administrative Procedures Act, yes.
    Senator Cantwell. That said, there was some discussion 
about changing this rule that now is in force. How would one go 
about doing that?
    Mr. McGarity. Well, I think we need to go through the full 
notice and comment process, and it needs to be supported by 
such evidence, data, analysis, et cetera, as would survive 
judicial--or as to not be arbitrary and capricious.
    In addition, by the way, under the National Environmental 
Policy Act, any change or modification might very well require 
a supplemental environmental impact statement or even a totally 
new environmental impact statement if the change was that 
dramatic.
    Senator Cantwell. Well, it seems now that if there were 
some agreement on, for example, this 5 percent area in the 
Rockies, you could go back with an amendment to the APA and go 
through the APA procedures? Which would make sense, as opposed 
to overturning the entire rule to go after a very small area 
that somebody wanted to investigate?
    Mr. McGarity. Yeah. Two points on that, one is certainly 
you could do that and that would be an amendment to the rule, 
that would again require notice and comment and need to be 
supported in the record. The other is probably that would not 
require a fresh environmental impact statement but could be 
accomplished through a supplemental EIS.
    Senator Cantwell. And why does that not seem to be a simple 
solution here, if we're discussing such a limited segment of 
the roadless areas? Do any of the other panelists want to 
comment?
    Mr. Segner. I certainly cannot get into the legal side, but 
in terms of thinking about a couple of issues here, one is we 
do not know at this time what areas will prove to be 
beneficial. Obviously we have got some areas that have been 
designated at this point in time as having potential, but as 
technology changes, our knowledge of the where will also 
change, and so taking steps that permanently cut off areas 
could be harmful in the long term.
    Senator Cantwell. Why not just keep the whole United States 
open then, under that scenario? I mean, you are saying that we 
should not close off anything to resource extraction.
    Mr. Segner. I think the correct process is to look at areas 
by area as circumstances arise.
    Senator Cantwell. Offshore?
    Mr. Segner. Certainly----
    Senator Cantwell. Off our coast of Washington? Where do you 
draw the line here? Part of this process was saying what areas 
do we want to make sure.
    Mr. Segner. No, I understand your point.
    Senator Cantwell. So what is wrong with going through APA 
procedures if later technological advancements determined that 
there were recoverable resources in the Rockies or somewhere 
else? Why couldn't we go through the APA process? As Professor 
McGarity was saying it would not even necessarily require 
another EIS, but you could do an amendment to the APA and 
thereby get at that the resources. I know my time is expiring, 
Mr. Chairman, but if he could answer that, it would be 
appreciated.
    Senator Craig. Certainly. Please proceed.
    Mr. Segner. I am not a specialist on the process so I 
really do not have a view there.
    Mr. McGarity. There is something called site specific 
rulemaking that would accomplish this just exactly, you could 
amend the rule to a site specific rule and accomplish what you 
wanted to accomplish, I think.
    Senator Cantwell. Thank you, Mr. Chairman.
    Senator Craig. Thank you very much. Mr. Sparrowe, I have a 
letter that you and a good many others signed to Secretary 
Veneman on April 11 in which you said: We urge the department 
to rescind the new planning regulations and to initiate the 
development of a regulatory framework that will enable the 
Forest Service to pursue resource stewardship on our national 
forests rather than confound its ability to do so. We offer our 
assistance in this important effort.
    I say that in passing, and I wanted to enter that into the 
record. What was your thinking in signing this letter along 
with, I haven't counted the other groups, but a good number of 
other conservation groups?
    Dr. Sparrowe. There are some specific wordings in that 
planning reg for example that require Forest Service managers 
to certify certain things about the sustainability of actions 
and resources and other things which we see as largely an 
invitation to challenge, and possible continuation of gridlock 
in management of the public lands which is currently going on. 
And we think some of that is worth rethinking.
    Senator Craig. Thank you. Mr. Schaefer, let me turn to you. 
In his January 5, 2000 letter, John Spotila, the Office of 
Management and Budget, former Forest Service Chief Mike Dombeck 
stated several times that the agency could not determine the 
impact of the rule on coal production in Colorado's Grand Mesa, 
Uncompahgre, and Gunnison national forests or Utah's Manti-La 
Sal Forest because no operators indicated a need for access to 
contiguous reserves in inventoried areas to continued existing 
operations.
    According to, the question then is according to Chief 
Dombeck, Arch Coal Company was the only coal operator to 
provide comments during the abbreviated DEIS scoping period. 
Would you explain how you determined your West Elk mine would 
be affected by the roadless rule?
    Mr. Schaefer. Yes, Mr. Chairman. Dave, would you put up the 
Colorado map one more time?
    In the assessment in--the letter that Arch Coal was the 
only coal company that commented was not correct. The National 
Mining Association provided comments as did Interwest Mining 
which is based in Salt Lake City. Dave, if you'll get up and 
point, since it is fairly small over there, point where the 
West Elk mine is, right there. And then the roadless area to 
the right of that, that is the location of all our future 
reserves. When we started through this process, we initially 
started in the public scoping comment. When they had presented 
the concept we are going to expand the roadless areas 
throughout the United States, our question was how does that 
impact our mine? They said, do not worry about it, we will 
provide you maps, they will be on the Internet shortly.
    The public scoping comments closed in January. In February 
the maps were finally posted on the Internet themselves, but 
were on such a gross scale that they were absolutely useless to 
be able to determine. So what we have done is we were able to 
get finally the RARE II boundary and took that and plotted that 
over our West Elk mine. And that was ultimately how we 
determined there was an impact. We then took these maps and 
provided them to the Forest Service.
    And this map was done in about February or March of 2000, 
and Dave, pull back up the other Colorado map. We finalized 
this which shows the entire North Fork Valley, that was 
finalized in the October, November 2000 time frame. And the 
Utah map which you can see took quite a bit more to develop 
where the lease areas were, we finally finished that in 
December of last year and provided that to the Forest Service. 
But this was all done under our own volition. And it was very 
difficult to put those together. It took almost a year process 
to put those together.
    Senator Craig. It strikes me that the spirit, if not the 
letter of the Administrative Procedures Act and NEPA, require 
an agency to define its proposal in sufficient detail to allow 
the public to understand the impact of the proposal and the 
alternatives and provide substantive and meaningful comment on 
them. In your opinion, did the information provided by the 
Forest Service either in the proposed rule, notice of intent to 
publish an EIS, the draft EIS, or anywhere else including 
communications with individual forests or other Forest Service 
and Agriculture Department personnel, give you sufficient 
information to determine the true impact of the roadless rule 
on Federal coal accessibility or production?
    Mr. Schaefer. Absolutely not. We were not able. That again 
was done completely on our own volition in taking that 
information to the Forest Service. In fact the only Federal 
agency that asked us for our opinion on what kind of impacts 
there were, was the Department of Energy and Mr. Hochheiser.
    Senator Craig. Former director Dombeck took a very 
aggressive stand against minimizing the impact to the coal 
industry in Colorado and Utah. Did you ever meet with Mr. 
Dombeck personally to discuss the rule's impact.
    Mr. Schaefer. We had set up a meeting with Mr. Dombeck and 
scheduled it for, it was around the October, November time 
frame. A couple of days before we had the meeting with Mr. 
Dombeck we got a call from the Forest Service mineral staff, 
and said you might as well not come over, it has been delegated 
clear down into our staff level functions now and you have 
already talked to us. So we never did get the chance to sit 
down face to face with Mr. Dombeck.
    Senator Craig. Did you or the National Mining Association 
file a FOIA request to get adequate information to determine 
the impact of the roadless rule?
    Mr. Schaefer. The National Mining Association did file a 
Freedom of Information request. The information that came back 
was, see our website, and that was just about it. Again those 
maps were on such a gross scale as to be unusable for 
determining site specific impacts.
    Senator Craig. Thank you. Senator Cantwell, do you have any 
further questions?
    Senator Cantwell. Thank you Mr. Chairman. I'm sorry to hear 
the Internet was not as accommodating as it should have been in 
this process. But being new here I am trying to understand 
this. I almost feel like we are having a hearing about a law 
that we passed and that now people are coming to say what parts 
of the public comments were listened to and what parts were 
not.
    So I am really trying to understand the APA from a process 
perspective. And so if you could, Professor McGarity, go 
through that again, because my impression is that some of this 
discussion is about the process and now what steps we can take 
from here. And my sense is that this applies no matter which 
administration is in place. There are probably many examples of 
Administrative Procedure Act decisions. And since there is a 
legal process here, I am very concerned. Because every day it 
seems like there is an article in the paper about another rule 
or action that had been proposed by the past administration and 
yet is now being overturned by this administration.
    In this case, the APA is a rulemaking which has the force 
of law . Is that--?
    Mr. McGarity. The final rule, there were a number of 
regulations affected by the Card memorandum in various degrees 
of status. I testified in the House a month ago about those. 
Some of them could easily be rescinded, withdrawn from the 
Office of Federal Register with no legal consequence at all.
    The one kind of regulation where the law is very clear is a 
regulation that has been submitted to and published by the 
Office of the Federal Register. There the law is clear that 
that is a final rule, that is when it becomes final, whether or 
not its effective date has gone or some other condition 
subsequent may have occurred.
    A final rule then may only be amended through the 
rulemaking process absent good cause. And I spoke and my 
testimony speaks about the good cause exemption. That is how it 
works. The Administrative Procedures Act was set up in 1946 as 
a result of the New Deal creation of lots and lots of 
regulatory agencies with regulatory authority over people. And 
the notion was that the Government should not act arbitrarily 
and that that should apply to the Government across 
administrations as well as to the tiniest official operating at 
some locale.
    Senator Cantwell. So our Attorney General should be acting 
as if it has the force of law?
    Mr. McGarity. I think that the regulation that is written 
right now is the final rule. Its effective date has been 
postponed, I think that that was an unlawful postponement of 
the effective date and violative of the Administration 
Procedures Act. The consequence of that of course is difficult 
to determine because one has to ultimately have litigation to 
know what the ultimate consequences of that will be.
    Senator Cantwell. Is this the only one of the various 
environmental issues being discussed that was part of an APA 
rulemaking?
    Mr. McGarity. The Forest Service?
    Senator Cantwell. Yes.
    Mr. McGarity. No, there were several, the arsenic rule, the 
EPA arsenic rule, there was several environmental regulations 
that had likewise been submitted to the Office of Federal 
Register and published in the Federal Register.
    Senator Cantwell. Thank you.
    Mr. Segner. Senator, could I respond perchance to the same 
question that you asked Dr. Morton earlier?
    Senator Cantwell. Yes.
    Mr. Segner. You asked about the impact effectively of 11 
trillion cubic feet and in the first panel you asked Mr. Eppink 
about spreading that over a period of time.
    Senator Cantwell. I did not care if you spread it out or 
used it all at once, I was just trying to get the amount.
    Mr. Segner. The point I would like to get back to is that 
changing our national supply by just a few percentage, even 2 
percent, 1 percent, and much less 5 percent, actually can have 
a huge impact on price.
    If we go back and look at this past year, where prices 
obviously have increased dramatically and have come down now 
some, but still higher than they have been in the past, in most 
of the past, we would find that really it is the change in 
storage levels, which is really a function of either supply or 
a major demand change, obviously on the supply side was one of 
the critical factors and why storage was what it was. Had 
storage been simply one or two percent on a per day basis 
higher in terms of injection capability, that would have a 
fairly impactful effect on price.
    Senator Cantwell. I am sure you can imagine if you are 
dealing with 100 percent or more rate increases, and tens of 
thousands of jobs being lost, for example, in the aluminum 
industry and in agriculture, you can imagine that people would 
like to see a more direct, easier path with larger results in a 
shorter period of time.
    Mr. Segner. Absolutely.
    Senator Cantwell. Not that there could not be, as you said, 
as technology advances, more specific targeting that would 
allow us to go back with a particular proposal and amendment 
for a very rich resource area. Thank you for your comments.
    Senator Craig. Thank you. Gentlemen, thank you. We will 
keep the record open for any additional questions we might 
submit to you through next week, but we thank you all for your 
testimony and the building of this record. The subcommittee 
will stand adjourned.
    [Whereupon, at 4:20 p.m., the hearing was adjourned.]

    [The following letter was received for the record:]
                               Washington Legal Foundation,
                                    Washington, DC, April 25, 2001.
Hon. Larry E. Craig,
Chairman, Subcommittee on Forests and Land Management of the Senate 
        Committee on Energy and Natural Resources, U.S. Senate, 
        Washington, DC.
    Dear Mr. Chairman: This letter is in response to your letter of 
April 3, 2001, requesting the Washington Legal Foundation (WLF) to 
survey and analyze ``(1) the Clinton Administration's record in court 
on defending or abandoning the resource management decisions of 
previous administrations; as well as (2) cases where the Clinton 
Administration was called upon to defend its own resource management 
decisions.'' Your inquiry was prompted by unfounded criticism with 
respect to the Bush Administration's handling of the Roadless Rule 
issue in the courts.
    We appreciate the opportunity to be of assistance to you and the 
committee. WLF is a non-profit public interest law and policy center 
that promotes principles of free enterprise and private property rights 
through litigation, the administrative process, and civic 
communications. WLF does not lobby for or against pending legislation.
    As you properly noted in your letter, WLF has been actively 
involved in several resource management issues, such as the Roadless 
Rule issue. That rule would needlessly lock up approximately 58 million 
acres of our national forests, and as you are no doubt aware, the 
federal court in Idaho recently granted a motion to preliminarily 
enjoin enforcement of the rule because of the flawed rule making 
process in that proceeding. State of Idaho v. U.S. Forest Service, No. 
CV01-11-N-EJL (D. Id. Apr. 5, 2001). WLF has recently filed a formal 
petition with the Department of Agriculture to repeal the Roadless 
Rule, a copy of which is enclosed for your information.*
---------------------------------------------------------------------------
    * Retained in subcommittee files.
---------------------------------------------------------------------------
    Based on our review of reported decisions, it appears that the 
Clinton Administration on at least 13 occasions refused to defend 
resource management decisions of its predecessors, choosing to accept 
an injunction or remand from a U.S. district court rather than defend 
those decisions in a U.S. court of appeals. On at least 28 other 
occasions, the Clinton Administration refused to defend its own 
resource management decisions in a court of appeals after receiving an 
injunction or remand from a U.S. district court. On these 41 occasions 
the Clinton Administration chose to abandon rather than defend timber 
sales, grazing allotments, mining approvals and wildlife management 
decisions that were carefully made by professional resource managers.
    The Clinton Administration's defense effort in the Supreme Court 
was even worse. Apart from the district court losses that it refused to 
defend, the Clinton Administration lost over 20 resource management 
cases in U.S. courts of appeals after winning in the district court. 
More than half of these losses were in the Ninth Circuit court of 
appeals, the appellate court with the highest reversal rate (over 90%) 
in the Supreme Court. Yet in its eight years in office, the Clinton 
Administration asked the Supreme Court to review an adverse resource 
management decision by a court of appeals just once.\1\
---------------------------------------------------------------------------
    \1\ Thomas v. Pacific Rivers Council, 514 U.S. 1082 (1995) 
(petition for writ of certiorari was denied).
---------------------------------------------------------------------------

 I. 13 RESOURCE MANAGEMENT DECISIONS MADE BY PRIOR ADMINISTRATIONS AND 
 THEN ABANDONED BY CLINTON ADMINISTRATION; NO APPEAL OF U.S. DISTRICT 
                    COURT INJUNCTION OR REMAND ORDER

    1. Defenders of Wildlife v. Babbitt, 958 F. Supp. 670 (D.D.C. 
1997). The court overturned Fish and Wildlife Service (FWS) decision 
not to list Canada lynx under Endangered Species Act (ESA). On March 
11, 1993, the new FWS regional director asked FWS national director to 
rescind prior administration's finding that listing was not justified.
    2. Oregon Natural Desert Association v. Green, 953 F. Supp. 1133 
(D. Or. 1997). The court enjoined Bureau of Land Management (BLM) plan 
for eastern Oregon river for violations of Wild and Scenic Rivers Act 
and National Environmental Policy Act (NEPA).
    3. Southwest Center for Biological Diversity v. Babbitt, 926 F. 
Supp. 920 (D. Ariz. 1996). The court overturned FWS decision not to 
list northern goshawk west of 100th meridian under ESA.
    4. Greater Gila Biodiversity Project v. Forest Service, 926 F. 
Supp. 914 (D. Ariz, 1994). The court enjoined Forest Service timber 
sale on Apache-Sitgreaves National Forest pending NEPA compliance.
    5. Friends of the Bitterroot, Inc. v. U.S. Forest Service, 900 F. 
Supp. 1368 (D. Mon. 1995). The court remanded Forest Service timber 
sale to the agency to correct NEPA violation in 1990 environmental 
impact statement (EIS).
    6. Carlton v. Babbitt, 900 F. Supp. 526 (D.D.C. 1995). The court 
overturned FWS decision not to move grizzly bears from threatened to 
endangered under ESA. On remand, the agency again decided that there 
was no justification to reclassify grizzly bear. The district court 
again ruled against agency and remanded matter to agency for a second 
time. Carlton v. Babbitt, 26 F. Supp. 2d 102 (D.D.C. 1998).
    7. Shoshone-Paiute Tribe v. United States, 889 F. Supp. 1297 (D. 
Id. 1994). The court enjoined Air Force training range development for 
NEPA violations in 1992 EIS.
    8. Ayers v. Espy, 873 F. Supp. 455 (D. Col. 1994). The court 
enjoined Forest Service timber sale approved in 1992 on Arapaho and 
Roosevelt National Forests pending NEPA and National Forest Management 
Act (NFMA) compliance. The government's motion for reconsideration was 
denied.
    9. Anacostia Watershed Society v. Babbitt, 871 F. Supp. 475 (D.D.C. 
1993). The court enjoined transfer of portions of Anacostia Park, a 
national park, to local government for development for children's park, 
pending preparation of EIS or environmental assessment (FA). 
Plaintiff's motion for clarification was denied. 875 F. Supp. 1 (D.D.C. 
1995).
    10. Hells Canyon Preservation Council v. Richmond, 841 F. Supp. 
1039 (D. Or. 1993). The court ordered the Forest Service to issue final 
regulations for Hells Canyon National Recreation Area.
    11. Alpine Lakes Protection Society v. U.S. Forest Service, 838 F. 
Supp. 478 (W.D. Wash. 1993). The court enjoined Forest Service road 
access permits to private timber company pending NEPA compliance.
    12. Sierra Club v. Lujan, 1993 WL 151353 (W.D. Tex. 1993). The 
court ordered FWS to impose minimum streamflows on San Antonio water 
source to remedy ESA violations.
    13. National Wildlife Federation v. Babbitt, 1993 WL 304008 (D.D.C. 
1993). The court remanded BLM coal leasing regulations pending new EIS.

   II. 28 CLINTON ADMINISTRATION RESOURCE MANAGEMENT DECISIONS LATER 
 ABANDONED BY CLINTON ADMINISTRATION; NO APPEAL OF U.S. DISTRICT COURT 
                       INJUNCTION OR REMAND ORDER

    1. Greenpeace Foundation v. Mineta, 122 F. Supp. 2d 1123 (D. Ha. 
2000). The court enjoined National Marine Fisheries Service (NMFS) 
approval of Hawaiian lobster fishery pending ESA and NEPA compliance on 
monk seals.
    2. Wilderness Society v. Bosworth, 118 F. Supp. 2d 1082 (D. Mon. 
2000). The court enjoined Forest Service timber sale in Clearwater 
National Forest for NEPA and NFMA violations.
    3. Greenpeace v. NMFS, 106 F. Supp. 2d 1066 (W.D. Wash. 2000). The 
court enjoined fishing in critical habitat of endangered Stellar sea 
lion pending ESA compliance by NMFS.
    4. Federation of Fly Fishers v. Daley, 2000 WL 33225295 (N.D. Cal. 
2000). The court overturned decision by NMFS not to list steelhead as 
threatened under ESA.
    5. Center for Biological Diversity v. Badgley, 2000 WL 1513812 (D. 
Or. 2000) The court ordered FWS to make 12-month ESA finding on yellow-
billed cuckoo.
    6. Siskiyou Regional Education Project v. Rose, 87 F. Supp. 2d 1074 
(D. Or. 1999) The court enjoined BLM rule easing mining restrictions 
for NEPA violation.
    7. Defenders of Wildlife v. Ballard, 73 F. Supp. 2d 1094 (D. Az. 
1999). The court enjoined nationwide Corps of Engineers wetlands fill 
permits pending NEPA compliance on pygmy-owl.
    8. Oregon Natural Resources Council v. U.S. Forest Service, 59 F. 
Supp. 2d 1085 (W.D. Wash. 1999) The court enjoined 35 Forest Service 
and BLM timber sales and all new sales pending compliance with survey 
and manage requirements of Northwest Forest Plan.
    9. Alaska Center for the Environment v. West, 31 F. Supp. 2d 714 
(D. Ak. 1998) The court enjoined nationwide Section 404 permit to fill 
wetlands for home construction pending further Clean Water Act analysis 
by Corps of Engineers.
    10. Conservation Council for Hawai'i v. Babbitt, 24 F. Supp. 2d 
1074 (D. Ha. 1998). The court ordered FWS to publish 100 proposed 
critical habitat designations by November 30, 2000, and additional 145 
by April 30, 2002.
    11. Sierra Club v. United States, 23 F. Supp. 2d 1132 (N.D. Cal. 
1998). The court enjoined housing construction in Yosemite National 
Park pending NEPA compliance by National Park Service.
    12. National Wildlife Federation v. Cosgriffe, 21 F. Supp. 2d 1211 
(D.Or. 1998). The court ordered BLM to prepare management plan under 
Wild and Scenic Rivers Act.
    13. Kentucky Heartwood, Inc. v. Worthington, 20 F. Supp. 2d 1076 
(E.D. Ky. 1998). The court enjoined all Forest Service timber sales on 
Daniel Boone National Forest pending ESA and NEPA compliance.
    14. Sierra Club v. Babbitt, 15 F. Supp. 2d 1274 (S.D. Ala. 1998). 
The court set aside two FWS incidental take permits for housing 
projects pending additional ESA and NEPA review.
    15. Oregon Natural Resources Council v. Daley, 6 F. Supp. 2d 1139 
(D. Or. 1998). The court set aside NMFS decision not to list coastal 
coho salmon as arbitrary and capricious and ordered new decision in 60 
days.
    16. Pacific Coast Federation of Fishermen's Associations v. 
National Marine Fisheries Service, No. 97-775R (W.D. Wash. 1998). The 
court enjoined 23 Forest Service and BLM timber sales in southwestern 
Oregon pending ESA compliance.
    17. Save Our Springs v. Babbitt, 27 F. Supp. 2d 739 (W.D. Tex. 
1997). The court overturned FWS decision not to list Barton Springs 
salamander under ESA.
    18. Friends of the Wild Swan v. FWS, 12 F. Supp. 2d 1121 (D. Or. 
1997). The court ordered FWS to reconsider decision not to list bull 
trout under ESA.
    19. Curry v. Forest Service, 988 F. Supp. 541 (W.D. Pa. 1997). The 
court enjoined Forest Service timber sales in Allegheny National Forest 
pending NEPA and NFMA compliance.
    20. House v. Forest Service, 974 F. Supp. 1022 (E.D. Ky. 1997). The 
court enjoined Forest Service timber sales in Daniel Boone National 
Forest pending ESA compliance.
    21. Restore: The North Woods v. U.S. Dept. of Agriculture, 968 F. 
Supp. 168 (D. Vt. 1997). The court enjoined Forest Service land 
exchange for ski resort expansion in Vermont pending NEPA compliance.
    22. Friends of the Wild Swan v. FWS, 945 F. Supp. 1388 (D. Or. 
1996). The court overturned FWS decision that listing bull trout under 
ESA, although warranted, was precluded by higher-priority species. On 
remand, FWS listed bull trout only in certain geographical areas rather 
than throughout species' entire range. That decision was also 
overturned. Friends of the Wild Swan v. FWS, 12 F. Supp. 2d 1121 (D. 
Or. 1997).
    23. Biodiversity Legal Foundation v. Babbitt, 943 F. Supp. 23 
(D.D.C. 1996). The court overturned FWS decision not to list Alexander 
Archipelago wolf under ESA.
    24. Southwest Center for Biological Diversity v. Babbitt, 939 F. 
Supp. 49 (D.D.C. 1996). The court overturned FWS decision not to list 
Queen Charlotte goshawk under ESA.
    25. Klamath Tribes v. United States, 1996 WL 924509 (D. Or. 1996). 
The court enjoined eight Forest Service timber sales within former 
Klamath reservation in Oregon for violations of tribal rights despite 
release language in 1995 Rescissions Act.
    26. Sierra Club v. Martin, 71 F. Supp. 2d 1268 (N.D. Ga. 1996). The 
court enjoined Forest Service timber sales on Chattahoochee and Oconee 
National Forests pending NEPA and NFMA compliance.
    27. Washington Trails Association v. Forest Service, 935 F. Supp. 
1117 (W.D. Wash. 1996). The court enjoined Forest Service trail 
reconstruction project pending NEPA compliance.
    28. Leavenworth Audubon Adopt-A-Forest Alpine Lakes Protection 
Society v. Ferraro, 881 F. Supp. 1482 (W.D. Wash. 1995). The court 
enjoined three Forest Service timber sales on Wenatchee National Forest 
prepared under Northwest Forest Plan pending NEPA and NFMA violations.
    We hope that this information is of help to you and your committee. 
We would also like to express our appreciation to students enrolled in 
WLF's Economic Freedom Law Clinic at George Mason University School of 
Law for assisting in this research.
    If we can be of any further assistance to you, please feel free to 
call on us.
            Sincerely yours,
                                   Daniel J. Popeo,
                                           Chairman and General 
                                               Counsel.
                                   Paul D. Kamenar,
                                           Senior Executive Counsel.

