[House Report 105-824]
[From the U.S. Government Publishing Office]



                                                 Union Calendar No. 463
105th Congress, 2d Session - - - - - - - - - - - - House Report 105-824


 
      MONUMENTAL ABUSE: THE CLINTON ADMINISTRATION'S CAMPAIGN OF 
 MISINFORMATION IN THE ESTABLISHMENT OF THE GRAND STAIRCASE-ESCALANTE 
                           NATIONAL MONUMENT

                               __________

                              R E P O R T

                                 of the

                         COMMITTEE ON RESOURCES

                        HOUSE OF REPRESENTATIVES

                             together with

                            DISSENTING VIEWS





October 16, 1998.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed


                         COMMITTEE ON RESOURCES

                      DON YOUNG, Alaska, Chairman
W.J. (BILLY) TAUZIN, Louisiana       GEORGE MILLER, California
JAMES V. HANSEN, Utah                EDWARD J. MARKEY, Massachusetts
JIM SAXTON, New Jersey               NICK J. RAHALL II, West Virginia
ELTON GALLEGLY, California           BRUCE F. VENTO, Minnesota
JOHN J. DUNCAN, Jr., Tennessee       DALE E. KILDEE, Michigan
JOEL HEFLEY, Colorado                PETER A. DeFAZIO, Oregon
JOHN T. DOOLITTLE, California        ENI F.H. FALEOMAVAEGA, American 
WAYNE T. GILCHREST, Maryland             Samoa
KEN CALVERT, California              NEIL ABERCROMBIE, Hawaii
RICHARD W. POMBO, California         SOLOMON P. ORTIZ, Texas
BARBARA CUBIN, Wyoming               OWEN B. PICKETT, Virginia
HELEN CHENOWETH, Idaho               FRANK PALLONE, Jr., New Jersey
LINDA SMITH, Washington              CALVIN M. DOOLEY, California
GEORGE P. RADANOVICH, California     CARLOS ROMERO-BARCELO, Puerto Rico
WALTER B. JONES, Jr., North          MAURICE E. HINCHEY, New York
    Carolina                         ROBERT A. UNDERWOOD, Guam
WILLIAM M. (MAC) THORNBERRY, Texas   SAM FARR, California
JOHN B. SHADEGG, Arizona             PATRICK J. KENNEDY, Rhode Island
JOHN E. ENSIGN, Nevada               ADAM SMITH, Washington
ROBERT F. SMITH, Oregon              WILLIAM D. DELAHUNT, Massachusetts
CHRIS CANNON, Utah                   CHRIS JOHN, Louisiana
KEVIN BRADY, Texas                   DONNA CHRISTIAN-GREEN, Virgin 
JOHN E. PETERSON, Pennsylvania           Islands
RICK HILL, Montana                   RON KIND, Wisconsin
BOB SCHAFFER, Colorado               LLOYD DOGGETT, Texas
JIM GIBBONS, Nevada
MICHAEL D. CRAPO, Idaho


                         LETTER OF TRANSMITTAL

                              ----------                              

                          House of Representatives,
                                    Committee on Resources,
                                  Washington, DC, October 16, 1998.
Hon. Newt Gingrich,
Speaker, House of Representatives,
Washington, DC.
    Dear Mr. Speaker: By direction of the Committee on 
Resources, I submit the Committee's report to the 105th 
Congress on ``Monument Abuse: The Clinton Administration's 
Campaign of Misinformation in the Establishment of the Grand 
Staircase-Escalante National Monument.'' The report was adopted 
and ordered reported to the House of Representatives by voice 
vote on October 7, 1998.
            Sincerely,
                                               Don Young, Chairman.
    Enclosure.



                            C O N T E N T S

                              ----------                              
                                                                   Page
Introduction.....................................................     3
Committee Jurisdiction and Scope of Review.......................     4
History of Coal Mining on the Kaiparowits Plateau................     6
``Rope in the Kaiparowits''......................................     7
National Environmental Policy Act (NEPA) Process for the Warm 
  Springs Project................................................     8
Ecological Consequences of the Warm Springs Project..............    10
Socioeconomic Consequences of the Warm Springs Project...........    12
Abuse of the NEPA Process........................................    14
Attachment 1: March 25, 1996, E-Mail Message.....................    19
Attachment 2: Excerpts from Warm Springs Project PDEIS...........    21
Attachment 3: March 27, 1996, E-Mail Message.....................   192
Attachment 4: April 9, 1996, Memorandum..........................   195
Attachment 5: April 3, 1996, E-Mail Message......................   197
Attachment 6: April 4, 1996, E-Mail Message......................   199
Attachment 7: DOI Organizational Chart...........................   201
Attachment 8: June 21, 1996, E-Mail Message......................   203
Attachment 9: September 16, 1996, E-Mail & Note..................   205
Attachment 10: Maps..............................................   207
      

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


                     MONUMENTAL ABUSE: THE CLINTON

                      ADMINISTRATION'S CAMPAIGN OF

                  MISINFORMATION IN THE ESTABLISHMENT

                    OF THE GRAND STAIRCASE-ESCALANTE

                           NATIONAL MONUMENT

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

      
                              Introduction

    On September 18, 1996, President Bill Clinton stood in the 
Arizona sun on the rim of the Grand Canyon and announced the 
establishment of the 1.7-million-acre Grand Staircase-Escalante 
National Monument (Utah Monument), seventy miles away in Utah. 
He quoted Teddy Roosevelt and praised the beauty of the Utah 
lands he and Vice President Al Gore had chosen to ``protect.'' 
From what threat was the President protecting these lands? ``I 
am concerned about a large coal mine proposed for the area,'' 
the President said. ``[W]e shouldn't have mines that threaten 
our national treasures.'' \1\
---------------------------------------------------------------------------
    \1\ Remarks Announcing the Establishment of the Grand Staircase-
Escalante National Monument at Grand Canyon National Park, Arizona, 32 
Weekly Comp. Pres. Doc. 1785 (Sept. 23, 1996).
---------------------------------------------------------------------------
    Far from threatening our national treasures, the mine 
project inappropriately killed by the Clinton Administration 
would have provided millions in funds for Utah's 
schoolchildren--which Clinton and Gore call ``the greatest 
resource in the country.'' \2\
---------------------------------------------------------------------------
    \2\ Gore Pushes Technology, Better Pay for Teachers, Greensborough 
News & Record, May 29, 1997, at B5.
---------------------------------------------------------------------------
    At the time the Utah Monument was designated by 
Presidential Proclamation No. 6920, an environmental impact 
review of the ``large coal mine'' (the Smoky Hollow Mine) 
referred to by the President had been underway for nearly seven 
years.\3\ As required by the National Environmental Policy Act 
(NEPA), the Bureau of Land Management (BLM) and the Office of 
Surface Mining and Reclamation (OSM) had produced a 
comprehensive preliminary draft environmental impact statement 
(PDEIS) that was prepared for public comment. This report 
reviews that PDEIS and shows that the characterization of the 
project as a threat to the lands designated under the 
Antiquities Act was purely a pretext and not supported by the 
record. The substance of that review is contained in this 
report.
---------------------------------------------------------------------------
    \3\ Proclamation No. 6920, 61 Fed. Reg. 50,223 (1996).
---------------------------------------------------------------------------
    The American public, watching the Escalante campaign event, 
may have believed the President when he warned of the mine's 
supposed impact on sensitive lands. People had no reason not to 
take the President at his word at that time. Documents and 
records obtained by the House Committee on Resources and 
reviewed in this report now show that the President's statement 
was as far away from accuracy as he was from Utah. The only 
thing the President was trying to protect by designating the 
Utah Monument was his chance to win reelection. The ``threat'' 
motivating the President's action was electoral, not 
environmental.
    The Utah Monument was designated pursuant to Section 2 of 
the Act of June 8, 1906 (Antiquities Act), which allows the 
President to reserve parcels of federal land as national 
monuments by public proclamation.\4\ The language of the 
Antiquities Act makes clear, however, that the land reserved 
``shall be confined to the smallest area compatible with the 
proper care and management of the objects to be protected.'' 
\5\ The Act contemplates that objects to be protected must be 
threatened or endangered in some way. For example, a 
proclamation withdrawing Devil's Hole in Nevada was upheld in 
court because it was not solely for the purpose of preserving 
the unique limestone formations in Devil's Hole pool, but also 
to protect the endangered pupfish from possible extinction due 
to agricultural use of the pool's water.\6\
---------------------------------------------------------------------------
    \4\ 16 U.S.C. Sec. 431 et seq.
    \5\ ID.
    \6\ U.S. v. Cappaert, 508 F. 2d 313 (9th Cir. 1974), aff'd, 426 
U.S. 128 (1976). For further discussion of Congressional intent 
regarding the limited application of the Antiquities Act see the House 
debate at 40 Cong. Rec. H7888 (June 5, 1906). See also Report to 
accompany S. 4698, Rpt. No. 3797, 59th Cong., 1st Sess. (May 24, 1906).
---------------------------------------------------------------------------
    It follows that for the designation of the Utah Monument to 
be proper its lands had to be somehow threatened or endangered. 
The Clinton Administration knew that they were not. In a March 
25, 1996, email message to T.J. Glauthier at the Office of 
Management and Budget (OMB) and Linda Lance at the Council on 
Environmental Quality (CEQ), Kathleen McGinty (the Chair of 
CEQ) stated her doubts about the planned designation:

        I'm [sic] increasingly of the view that we should just 
        drop these utah [sic] ideas. we [sic] do not really 
        know how the enviros will react and I do think there is 
        a danger of ``abuse'' of the withdraw/antiquities 
        authorities especially because these lands are not 
        really endangered.\7\ [Emphasis added.]
---------------------------------------------------------------------------
    \7\ Staff of House Comm. on Resources, Behind Closed Doors: The 
Abuse of Trust and Discretion in the Establishment of the Grand 
Staircase-Escalante National Monument, H.R. Rep. No. 105-D, 105th 
Cong., 1st Sess. at 28 (Comm. Print 1997) (emphasis added). Attachment 
1.

    To have at least the appearance of credibility, the 
President had to point to some sort of threat. As far as the 
Clinton Administration was concerned, the coal mine fit the 
bill. After all, in a campaign where image reigned supreme, 
reality was of little consequence. After election day, however, 
reality remained. As the campaign dust settled, a new question 
arose: was the development of the coal mine actually a threat 
sufficient to justify sealing off 1.7 million acres of southern 
Utah? The PDEIS makes it clear the answer is no. In fact, the 
Clinton Administration's own agencies determined after a full 
review, that between killing the mine and approving it, 
approval was the ``preferred alternative.'' \8\
---------------------------------------------------------------------------
    \8\ Warm Springs Project PDEIS 2-1 (Dec. 11, 1995) [hereinafter 
PDEIS (1995)]. For all references to the PDEIS, refer to Attachment 2 
of this report.
---------------------------------------------------------------------------

               Committee Jurisdiction and Scope of Review

    The Committee on Resources has jurisdiction over the 
Antiquities Act and the creation of the Grand Staircase-
Escalante National Monument under Articles I and IV of the U.S. 
Constitution, Rules X and XI of the Rules of the U.S. House of 
Representatives, and Rule 6(a) of the Rules for the Committee 
on Resources (Committee Rules), jurisdiction that is delegated 
under Rule 6(d) of the Committee Rules to the Subcommittee on 
National Parks and Public Lands.
    The Subcommittee has a continuing responsibility under Rule 
6(b) of the Committee Rules to monitor and evaluate 
administration of laws within its jurisdiction. In relevant 
part, that Rule states:

          Each Subcommittee shall review and study, on a 
        continuing basis, the application, administration, 
        execution, and effectiveness of those statutes or parts 
        of statutes, the subject matter of which is within that 
        Subcommittee's jurisdiction; and the organization, 
        operation, and regulations of any Federal agency or 
        entity having responsibilities in or for the 
        administration of such statutes, to determine whether 
        these statutes are being implemented and carried out in 
        accordance with the intent of Congress.

    In accordance with its Rule 6(d) responsibility, the 
Committee and Subcommittee Chairmen initiated a review of the 
creation of the Grand Staircase-Escalante National Monument. 
The initial review focused on the actions of the Executive 
Branch in the designation of the Monument. This review resulted 
in a majority staff report entitled ``Behind Closed Doors: The 
Abuse of Trust and Discretion in the Establishment of the Grand 
Staircase-Escalante National Monument.'' \9\ The report made 
several findings supported by evidence discovered by the 
Committee. The significant findings, as summarized in the 
report, are as follows:
---------------------------------------------------------------------------
    \9\ H.R. Rep. No. 105-D, 105th Cong., 1st Sess. (Comm. Print 1997).
---------------------------------------------------------------------------
          (1) the designation of the Monument was almost 
        entirely politically motivated to assist the Clinton-
        Gore reelection effort;
          (2) the plan to designate the monument was 
        purposefully kept secret from Americans and the Utah 
        congressional delegation;
          (3) the Monument designation was put forward even 
        though Administration officials did not believe that 
        the lands proposed for protection were in danger;
          (4) use of the Antiquities Act was intended to 
        overcome Congressional involvement in land designation 
        decisions;
          (5) use of the Antiquities Act by the Clinton 
        Administration was planned to evade the National 
        Environmental Policy Act (NEPA). Indeed, its use was 
        specifically intended to evade the provisions of NEPA 
        and other Federal administrative requirements.
    As a consequence of this report, the Subcommittee requested 
a further review of the question whether there was any actual 
threat posed by development of the Smokey Hollow Mine that was 
sufficient to justify the use of the Antiquities Act to 
``protect'' Utah's ``threatened'' national treasures. On 
November 5, 1997, the Committee sent a letter to Secretary of 
Interior Bruce Babbitt requesting each version of the 
preliminary draft environmental impact statement prepared for 
the Warm Springs Project/Smokey Hollow Mine. The Committee's 
request was met with the threat of a claim of privilege based 
upon the ``predecisional'' nature of the documents, in spite of 
the fact that no such privilege applies to Congress. On 
November 12, 1997, consistent with the Committee's oversight 
powers, a subpoena was served on the Department of Interior and 
the requested documents were received by the Committee one week 
later.
    The subpoenaed materials included not only the complete 
text of all versions of the PDEIS but also copies with marginal 
notes and correspondence regarding the Warm Springs Project. 
This report, based on a review of the documents provided, was 
developed for and provided to Members of the Committee on 
Resources for their information so that Members can undertake 
their legislative and oversight responsibilities under the 
Constitution, the Rules of the House of Representatives, and 
the Rules for the Committee on Resources.
    While the earlier staff report demonstrates that the 
President acted without legal authority in designating the Utah 
Monument, this Committee report shows that the President's 
environmental conservation justification was just as illusory.

           History of Coal Mining on the Kaiparowits Plateau

    The proposed Smoky Hollow Mine was to be located on the 
Kaiparowits Plateau.\10\ The sweeping, arid plateau covers 
approximately 1,650 square miles of southern Utah. It extends 
65 miles north to south, 20 miles across its northern boundary, 
and 55 miles across its southern boundary. The Plateau contains 
an original coal resource of 62.3 billion short tons, though 
only about 30 billion short tons are in areas where geologic 
conditions are favorable for current underground mining 
technology. Overall, the Kaiparowits Plateau contains about 1.5 
percent of the Nation's total coal resource in the lower forty-
eight states. The low sulfur content of Kaiparowits coal 
creates a relatively low polluting power plant fuel, while the 
thickness of the seams make it attractive for mining. Except 
for the Monument designation, the region would be an important 
source of low-cost, environmentally safe fuel for the Nation's 
needs in the 21st century.\11\
---------------------------------------------------------------------------
    \10\ Refer to maps at Attachment 10.
    \11\ See U.S. Geological Survey Open-File Report 96-539, 
Preliminary investigations of the distribution and resources of coal in 
the Kaiparowits Plateau, southern Utah (1996).
---------------------------------------------------------------------------
    Coal in the region was first mined by settlers in the late 
1800's near the town of Escalante, Utah, with several small 
mines producing coal for local needs until the early 1960's. In 
the 1970's, about 12,000 tons of coal were mined from a test 
mine (the Missing Canyon Coal Mine) whichwas part of a larger 
project to develop a 3,000-megawatt coal-burning power plant. 
Construction plans for the plant were eventually halted due to 
development difficulties.
    The prior incidence of development in southern Utah caused 
BLM to exclude most of the land in the mining area from its 
wilderness review. In BLM's initial review three areas (Warm 
Creek, Nipple Bench, and Head of the Creeks) were excluded 
because they ``clearly and obviously'' did not meet wilderness 
criteria. In BLM's Final Utah Wilderness EIS, released in 1990, 
the remaining two areas (Wahweap and Burning Hills) were also 
not recommended for wilderness. This was due to the fact that 
neither Burning Hills nor Wahweap's geologic features were 
considered to be of National or regional importance and their 
potential for energy mineral extraction outweighed their low 
wilderness values.\12\ According to BLM's scientists and land 
managers, the land that would be affected by the proposed coal 
mine was not, as President Clinton would later say ``the most 
remarkable land in the world.''.\13\ Its high potential for 
future energy development outweighed its low wilderness 
values.\14\
---------------------------------------------------------------------------
    \12\ ``BLM concluded that although the Wahweap WSA is in a natural 
state, only about 10 percent of the WSA has outstanding opportunities 
for solitude. About 17 percent of the WSA has high scenic values, in 
six scattered locations. Opportunities for primitive recreation are not 
outstanding. About 1,000 acres of comparatively old pinyon and juniper 
trees and 11,700 acres of features with geologic interest in the WSA 
are not considered to be of National or regional importance.'' PDEIS 3-
89 (1995).
    \13\ PDEIS 3-89 (1995).
    \14\ PDEIS 3-89 (1995).
---------------------------------------------------------------------------

                      ``Rope in the Kaiparowits''

    If, as BLM concluded, the Kaiparowits Plateau's greatest 
value was for energy development and it ``clearly and 
obviously'' did not meet wilderness criteria, what is the 
Plateau doing in a national monument? The answer has more to do 
with political expediency than environmental protection.
    To invoke the Antiquities Act, the President needed to 
point his finger at a credible threat. The northern end of the 
Utah Monument (which does arguably have geologic features of 
significance) was not threatened in the least and could not 
have been designated standing alone. The President faced a 
Catch-22: the geologically and culturally significant lands 
were not threatened, while the purportedly ``threatened'' lands 
were not significant. Faced with this difficulty in the 
campaign scheme, the Council on Environmental Quality (CEQ) was 
ready to drop the project altogether. On March 25, 1996, 
Kathleen McGinty, Chair of CEQ, expressed her doubts about the 
planned designation in an e-mail message to T.J. Glauthier at 
OMB and Linda Lance at CEQ, stating:

        I'm [sic] increasingly of the view that we should just 
        drop these utah [sic] ideas. we [sic] do not really 
        know how the enviros will react and I do think there is 
        a danger of ``abuse'' of the withdraw/antiquities 
        authorities especially because these lands are not 
        really endangered.\15\ [Emphasis added.]
---------------------------------------------------------------------------
    \15\ Staff of House Comm. on Resources, Behind Closed Doors: The 
Abuse of Trust and Discretion in the Establishment of the Grand 
Staircase-Escalante National Monument, H.R. Rep. No. 105-D, 105th 
Cong., 1st Sess. at 28 (Comm. Print 1997) (emphasis added.) Attachment 
1.

    Two days later, however, the campaign-style event was back 
on track. Someone at CEQ had the idea of simply adding the 
1,650-square-mile Kaiparowits Plateau to the planned monument 
package. Doing so would provide a pretext that would allow the 
Administration to claim the land was ``threatened'' by the mine 
and in need of ``protection'' through a withdrawal. The fact 
that the supposedly ``threatened'' area and the ``significant'' 
area were separated by a considerable distance was of no 
importance to the President.
    The first mention of this idea is in a March 27, 1996, e-
mail message by Tom Jensen at CEQ directed to Linda Lance, T.J. 
Glauthier, and Kathleen McGinty:

        KM \16\ and others may want to rope in the Kaiparowits 
        and Escalante Canyons regions if this package 
        ultimately doesn't seem adequate to the President's 
        overall purpose.\17\ [Emphasis added.]
---------------------------------------------------------------------------
    \16\ Probably Kathleen McGinty.
    \17\ Id. at 29 (emphasis added). Attachment 3.

    ``Roping in the Kaiparowits'' may have given the 
Administration what it wanted--the appearance of credibility in 
the designation of the Utah Monument. However, it also meant 
that the Utah Monument's area had to be expanded to 1.7 million 
acres. Since there is no actual justification for the inclusion 
of the Kaiparowits in the Utah Monument, the Utah Monument 
violates the requirement of the Antiquities Act that the land 
reserved ``shall be confined to the smallest area compatible 
with the proper care and management of the objects to be 
protected.'' \18\ And, if the other lands were not appropriate 
as a stand-alone monument, then ``roping-in'' the allegedly 
``threatened'' Kaiparowits did not make them so.
---------------------------------------------------------------------------
    \18\ 16 U.S.C. Sec. 431 et seq.
---------------------------------------------------------------------------
    The fact that the ``roping in'' of Kaiparowits was 
unjustified is clearly demonstrated by the Warm Springs Project 
EIS, discussed below. It is equally clear, for the Clinton 
Administration, facts were of little consequence. In its view, 
the ends justified the means.

 National Environmental Policy Act (NEPA) Process for the Warm Springs 
                                Project

    The Warm Springs Project (Project) was the collective name 
given to the proposed Smoky Hollow Mine and the facilities 
necessary to mine and deliver the coal to market, including its 
power, communication, and loadout facilities, the Fredonia/
Hurricane truck maintenance facility, and the Warm Creek/
Benchtop Road. Andalex Resources, Inc. (Andalex), the largest 
federal leaseholder in the southern part of the Kaiparowits 
coal field, proposed reopening the inactive Missing Canyon Mine 
and mining 100 to 120 million tons of coal over a 45-year 
period.
    The company began contacting various entities involved with 
possible development of their leases as early as 1988. In May 
1990, it was determined that an environmental impact statement 
(EIS) should be prepared. An EIS is an analytical document 
which evaluates potential impacts to the human environment of a 
proposed course of action and its reasonable alternatives as 
required by the National Environmental Policy Act of 1969 
(NEPA).\19\ NEPA compliance is overseen by the Council on 
Environmental Quality (CEQ), chaired by Kathleen McGinty.
---------------------------------------------------------------------------
    \19\ 42 U.S.C. Sec. 4321, et seq.
---------------------------------------------------------------------------
    The Bureau of Land Management and the Office of Surface 
Mining Reclamation and Enforcement (the agencies) were jointly 
responsible for preparing the EIS, including the determination 
of content, the level of analysis, and the assessment of any 
impacts. In addition, private third-party contractors were 
retained to provide outside expertise and independent analysis. 
Under the terms of the contract, the third-party contractors 
were specifically barred from any communication with Andalex or 
others affected by the EIS.
    The NEPA process requires two documents before a 
significant federal action can occur: (1) a public draft EIS 
which fully analyzes the proposed actions and their potential 
impacts; and (2) a final EIS which incorporates public comments 
to the draft and is used by the decision-maker to make a final 
determination.\20\
---------------------------------------------------------------------------
    \20\ 40 CFR Sec. 1502.9 (1997).
---------------------------------------------------------------------------
    According to the regulations implementing NEPA, the draft 
``must fulfill and satisfy to the fullest extent possible the 
requirements established for final statements * * *'' \21\ This 
means that a ``draft'' EIS is expected to be as close to a 
final as possible, lacking only public comment. The regulations 
do not address the relative authority of a ``preliminary'' 
draft EIS. Though the draft stage for the Warm Springs Project 
was substantially completed, the document was never released to 
the public and the effort to finish it was abandoned soon after 
the designation of the Utah Monument.
---------------------------------------------------------------------------
    \21\ 40 CFR Sec. 1502.9(a) (1997).
---------------------------------------------------------------------------
    Over a period of nearly seven years at an estimated cost to 
Andalex of $8 million, federal agencies completed six 
iterations of the EIS leading to a preliminary draft 
environmental impact statement (PDEIS) in December 1995.\22\ 
The 1995 iteration of the PDEIS was distributed to other 
federal agencies for their comments. Their comments were 
integrated into the seventh iteration of the PDEIS which was 
nearing completion at the time the Utah Monument was 
designated.\23\ A member of the EIS team estimated that, but 
for the designation, the draft EIS would have been completed 
and ready for public comment in the spring of 1997.\24\
---------------------------------------------------------------------------
    \22\ The dates of the iterations are: Round #1, 10/19/94; Rd. #2, 
2/8/95; Rd. #3, 6/6/95; Rd. #4, 8/3/95; Rd. #5, 12/11/95; Rd. #6, 12/
12/95.
    \23\ The seventh iteration began on or around 6/18/96 and was 
finally abandoned around 11/20/96.
    \24\ Staff Communication with Warm Springs EIS team member 5/14/98.
---------------------------------------------------------------------------
    The last complete version of the EIS to be produced before 
the designation is a comprehensive, 561-page document 
reflecting nearly seven years of study and analysis. If the 
Smoky Hollow Mine was indeed the threat alleged by President 
Clinton, some indication of its danger would be evident in the 
documents produced by the federal scientists and managers who 
studied the project for seven years. No such indication of 
environmental threat exists.
    Of the PDEIS's eight chapters and five appendices, the most 
significant is chapter four, entitled ``Environmental 
Consequences.'' It discusses the anticipated impacts to the 
human environment, both with the Warm Springs Project 
(Alternative 1) and without the Project (Alternative 2). The 
chapter contains an analysis of the impacts of the Project on 
14 broad subject areas such as wildlife, geology, paleontology, 
socioeconomics, hydrology, and recreation. Each potential 
impact was assessed both in terms of its anticipated magnitude 
and its anticipated importance to the human environment. The 
magnitude scale ranges from ``none'' to ``major.'' The 
importance scale ranges from ``insignificant'' to 
``significant.'' Impacts were assumed to be insignificant 
unless otherwise indicated.\25\
---------------------------------------------------------------------------
    \25\ For a full definition of ``significantly'' as used in NEPA, 
see 40 C.F.R. Sec. 1508.27 (1997).
---------------------------------------------------------------------------
    It is notable that, as detailed in the earlier staff 
report, Andalex was required by CEQ to comply with the NEPA 
process at the same time CEQ--through its Chair, Kathleen 
McGinty--was advising the President on how to evade NEPA's 
requirements in the creation of the Utah Monument.\26\ No 
environmental impact statement was ever conducted or requested 
by CEQ on the possible ecological or socioeconomic consequences 
of the Monument, yet Andalex was required by CEQ to fully 
observe NEPA's provisions.
---------------------------------------------------------------------------
    \26\ Staff of House Comm. on Resources, Behind Closed Doors: The 
Abuse of Trust and Discretion in the Establishment of the Grand 
Staircase-Escalante National Monument, H.R. Rep. No. 105-D, 105th 
Cong., 1st Sess. at 12, 13 (Comm. Print 1997).
---------------------------------------------------------------------------

          Ecological Consequences of the Warm Springs Project

    Chapter four of the PDEIS does not list a single major 
impact associated with development of the Warm Springs Project 
that would affect the list of ``environmental values'' 
supposedly protected by the designation of the Utah Monument:
    1. In his proclamation, President Clinton specifically 
mentioned the ``world class paleontological sites'' he wanted 
to protect from the mine.\27\ The PDEIS, however, states that 
impacts to paleontological resources in the Smoky Mountain area 
would be ``minor over the short term, negligible over the long 
term.'' \28\ [Emphasis added.]
---------------------------------------------------------------------------
    \27\ Proclamation No. 6920, 61 Fed. Reg. 50,223 (1996).
    \28\ PDEIS 4-12 (1995).
---------------------------------------------------------------------------
    2. President Clinton mentioned the important ``cultural 
resources'' he wanted to protect from the mine.\29\ The PDEIS 
states that the Project's impact in this area would be 
``minor.'' \30\ [Emphasis added.]
---------------------------------------------------------------------------
    \29\ Proclamation No. 6920, 61 Fed. Reg. 50,223 (1996).
    \30\ PDEIS 4-118 (1995).
---------------------------------------------------------------------------
    3. President Clinton also mentioned the ``spectacular array 
of unusual and diverse soils'' and ``cryptobiotic crusts'' that 
he wanted to protect from the mine.\31\ Again, the PDEIS states 
clearly that the Project's impact on soils would be ``minor to 
moderate over the short term, minor over the long term,'' and 
the impact on cryptobiotic soils in the Smoky Mountain area 
would be ``minor over both the short and long terms.'' \32\ The 
impact on soils due to mining-related subsidence were 
determined to be ``negligible to minor over the short term and 
negligible over the long term.'' \33\ [Emphasis added.]
---------------------------------------------------------------------------
    \31\ Proclamation No. 6920, 61 Fed. Reg. 50,223 (1996).
    \32\ PDEIS 4-21,22 (1995).
    \33\ PDEIS 4-21 (1995).
---------------------------------------------------------------------------
    4. President Clinton's concerns for the ``many different 
vegetative communities and numerous types of endemic plants'' 
were also exaggerated and overblown. The agencies concluded 
that ``impacts to vegetative productivity and community 
stability in the proposed Warm Springs Project area with 
mining-related activities would be minor over the short term 
and negligible to minor over the long term.'' \34\ [Emphasis 
added.]
---------------------------------------------------------------------------
    \34\ PDEIS 4-24 (1995).
---------------------------------------------------------------------------
    5. The same holds true for President Clinton's concerns 
over wildlife. The agencies concluded that ``the impacts to 
wildlife habitat and productivity in the Smoky Mountain area 
with Project-related activities would be minor over the short 
term and negligible over the long term.'' \35\ [Emphasis 
added.] President Clinton had no credible reason to ``protect'' 
Utah's wildlife with a 1.7 million acre land lockup.
---------------------------------------------------------------------------
    \35\ PDEIS 4-30 (1995).
---------------------------------------------------------------------------
    The ``protection'' of the above resources was cited by the 
President as the rationale for the Utah Monument's designation. 
Given that the underlying rationale was false, no environmental 
or safety justification for the Utah Monument designation 
exists. The Clinton-Gore Monument was constructed on a very 
flimsy foundation.
    There were no major anticipated impacts associated with the 
Warm Springs Project because Andalex, together with the agency 
scientists and managers on the ground worked with concerned 
parties at the local, state, and federal level to identify 
potential problems and create solutions before a final decision 
had to be made. This is a model the Administration should have 
followed when considering the Utah Monument designation.
    For example, the initial plan was to locate the mine's 
surface facilities on the upper benches of Spring Point and 
Smoky Mountain so that they would be closer to the actual mine 
site. The agencies and Andalex realized, however, that locating 
the facilities there would cause impacts to visual resources 
and require more surface disturbance through road building. 
They modified the plan and came up with a better solution, 
thereby reducing the impacts of the Project.\36\
---------------------------------------------------------------------------
    \36\ PDEIS 2-3 (1995).
---------------------------------------------------------------------------
    Instead of building the surface facilities on top of Smoky 
Mountain which would have had a significant impact on the 
visual resources of the area, the agencies and Andalex agreed 
to locate the facilities in a 400-foot deep, enclosed part of 
Smoky Hollow Canyon. According to the PDEIS, because of ``the 
deep, confined nature of this canyon site, the proposed 
facility complex would not be visible from the WSA's \37\ or 
any other sensitive viewpoints outside Smoky Hollow.'' \38\
---------------------------------------------------------------------------
    \37\ Wilderness Study Areas.
    \38\ PDEIS 4-104 1995).
---------------------------------------------------------------------------
    Similarly, the initial alignment of the Benchtop Road was 
more convenient to the mine but had the potential of causing 
impacts to areas with cultural and wetland values. Andalex and 
the Agencies worked together to solve the problem--the route 
was adjusted and the magnitude of the impacts dropped.\39\
---------------------------------------------------------------------------
    \39\ PDEIS 2-4 (1995).
---------------------------------------------------------------------------
    Due to these and similar changes, the agencies were able to 
accurately predict that:

          Construction and operation of the proposed Project 
        would have no direct, physical impact on any of the 
        wilderness study areas (WSAs) or the potential 
        designation of wilderness areas in the Smoky Mountain 
        area.\40\ [Emphasis added.]
---------------------------------------------------------------------------
    \40\ PDEIS 4-11 (1995) (emphasis added).

    The conclusion of the federal scientists and managers who 
studied the Project for seven years is in direct opposition to 
what President Clinton told the American people.
    In addition to solving problems before they arose through 
changing the Project's design, the agencies and Andalex agreed 
to a series of proactive measures that would have ensured the 
avoidance of future problems.
    As a condition of permit approval, Andalex agreed to 
conduct ``intensive field inventories'' for the presence or 
absence of endangered plant species two years prior to any 
disturbance.\41\ Similar conditions were agreed to for the 
protection of the desert tortoise, the Mexican spotted owl, and 
the peregrine falcon.\42\ Alternate routes for roads and 
methods of coal transport were considered at length and only 
those with minimal impacts were included in the final analysis. 
Andalex agreed to the changes up front. Although there were 
less costly and more convenient ways to mine the coal in their 
leases, the company participated in the process in an effort to 
plan a safe project with minimal impacts. While lengthy and 
expensive, the PDEIS is testimony to the success of that 
process.
---------------------------------------------------------------------------
    \41\ PDEIS 2-2 (1995).
    \42\ PDEIS 2-2 (1995).
---------------------------------------------------------------------------
    As a result of the conditions agreed to by Andalex there 
may have been more protection of the area's unique resources, 
not less, if the Project were approved. For example, with 
disapproval of the Project ``[n]o information surveys on the 
primrose or the biscuitroot [both endangered plants] would be 
obtained from proposed surveys in the Project area.'' \43\ The 
same goes for proposed wildlife resource environmental 
education programs, baseline studies on raptor nests, and 
Mexican spotted owl inventories.\44\
---------------------------------------------------------------------------
    \43\ PDEIS 4-127 (1995).
    \44\ PDEIS 4-128, 9 (1995)
---------------------------------------------------------------------------
    The PDEIS also notes that with disapproval of the Project 
``[f]ossil resource discoveries and scientific data that could 
potentially be gained from mining-related survey and mitigation 
activities would not occur.'' \45\
---------------------------------------------------------------------------
    \45\ PDEIS 4-123 (1995).
---------------------------------------------------------------------------
    The PDEIS shows conclusively that the proposed mine was not 
the ecological threat that President Clinton alleged when he 
designated the Utah Monument. This conclusion was reached not 
only by Resources Committee staff, but also by Dave 
Alberswerth, a Clinton Administration political appointee in 
the Department of Interior, who noted in an April 9, 1996, 
memorandum that the two alternatives ``appear to indicate no 
significant difference in environmental impacts for the area of 
either permitting or not permitting the proposed Smoky Hollow 
Project.'' \46\
---------------------------------------------------------------------------
    \46\ Memorandum from Dave Alberswerth to A. Strasvogel dated Apr. 
9, 1996. Attachment 4.
---------------------------------------------------------------------------

         Socioeconomic Consequences of the Warm Springs Project

    In addition to misinforming the American people by 
exaggerating any potentially negative impacts of the Warm 
Springs Project, President Clinton failed to mention the value 
of the project to southern Utah and northern Arizona 
communities. The PDEIS states that ``[a]t full production over 
the life of the Project, the combined direct and secondary 
employment would create a total of 822 to 832 jobs * * * in 
Kane, Coconino, and Washington Counties.'' \47\
---------------------------------------------------------------------------
    \47\ PDEIS 4-61 (1995).
---------------------------------------------------------------------------
    The direct jobs would have paid an annual wage of about 
$35,000, ``considerably above prevailing wages in the region,'' 
and the secondary jobs would ``benefit the region's economy and 
the residents by expanding the economic opportunities available 
and increasing the volume of business activity.'' \48\
---------------------------------------------------------------------------
    \48\ PDEIS 4-61, 65 (1995).
---------------------------------------------------------------------------
    The secondary impacts of the Project on the region were 
also discussed at length in the PDEIS. It was estimated that 
purchases of locally available goods and services by the mine 
and trucking firm would be $7.4 million annually.\49\ At full 
production, ``an additional $7.7 million in annual earnings 
would be realized by workers filling secondary jobs supported 
by the proposed project.'' \50\
---------------------------------------------------------------------------
    \49\ PDEIS 4-65 (1995).
    \50\ PDEIS 4-65 (1995).
---------------------------------------------------------------------------
    According to the PDEIS, the ``combined direct and secondary 
wage and salary earnings associated with the proposed Project 
are projected at about $23.5 million annually.'' \51\ These 
earnings would have been a significant increase in the affected 
communities.
---------------------------------------------------------------------------
    \51\ PDEIS 4-65 (1995).
---------------------------------------------------------------------------
    As the agencies noted, ``the Project-related wages and 
salaries represent a substantial potential benefit to residents 
of the three Utah counties and Coconino County, Arizona, where 
the projected increase is equivalent to about 1.7 percent of 
the wages and salaries paid in 1992.'' \52\ The effects might 
have been even greater in Kane County where ``the proposed 
Project could generate up to a 50 percent increase in annual 
wage and salary payments in Kane County compared with those in 
1992.'' \53\
---------------------------------------------------------------------------
    \52\ PDEIS 4-65 (1995).
    \53\ PDEIS 4-65 (1995).
---------------------------------------------------------------------------
    These and other positive impacts would ``benefit the local 
economies in Kane and Coconino Counties by increasing the 
economic diversification of the region, by creating higher 
wages and year-round employment, and by generating additional 
support for local businesses.'' \54\
---------------------------------------------------------------------------
    \54\ PDEIS 4-67 (1995).
---------------------------------------------------------------------------
    The Project was anticipated to have similarly beneficial 
impacts on state and federal government fiscal resources. A 
Utah study concluded that ``the net fiscal impact of the 
proposed Project would be positive over the life of the 
Project, with indirect revenues accruing to the State projected 
to average about $2.25 million per year.'' \55\ Direct revenues 
from the Project accruing to the State of Utah, including sales 
and use taxes, mineral lease royalties, and State land 
payments, were estimated to average about $3.3 million 
annually.\56\
---------------------------------------------------------------------------
    \55\ PDEIS 4-72 (1995).
    \56\ PDEIS 4-73 (1995).
---------------------------------------------------------------------------
    One of the most significant benefits that would have 
accrued to the State of Utah was the royalty revenue derived 
from the development of Utah's State Trust Lands. Such 
royalties are deposited in a permanent trust fund and the 
income is used to support children's education in the State. 
Because these royalties are invested and managed in a permanent 
fund, the Project would have continued to benefit children even 
after it had ceased operations.\57\ Thus, President Clinton's 
decision to sweep the PDEIS under the rug was to pull the rug 
out from under Utah's school children.
---------------------------------------------------------------------------
    \57\ PDEIS 4-76 (1995).
---------------------------------------------------------------------------
    The mine would have also returned substantial revenues to 
the federal treasury from sources such as personal and 
corporate income taxes and excise taxes, as well as the mining-
specific revenues. At full production these revenues would 
include: ``$1.75 million annually from the retained share of 
mineral royalties, $2.15 million in payments into the Federal 
Black Lung Program, and $375,000 for the Abandoned Mine Land 
Reclamation (AML) Fund. Federal highway user's revenues would 
exceed $1.24 million annually at full production.'' \58\
---------------------------------------------------------------------------
    \58\ PDEIS 4-74 (1995).
---------------------------------------------------------------------------
    The effect of the Project on local governments was also 
expected to be positive. According to the PDEIS, [n]et revenues 
to local governmental units, after accounting for projected 
increases in public service expenditures, were estimated at 
$1.8 million annually.'' \59\
---------------------------------------------------------------------------
    \59\ PDEIS 4-68 (1995).
---------------------------------------------------------------------------
    All of these benefits would have accrued to an area already 
hit hard by the Clinton Administration's efforts to shut down 
Western resource development. The three Utah counties that 
would have benefitted most from the Warm Springs Project (Iron, 
Washington, and Kane) each suffer from subpar incomes (ranging 
from 26 to 41 percent below National averages) and limited 
growth.
    According to the PDEIS, the cause of these difficulties can 
be traced to ``losses of mining and timbering jobs, and the 
heavy dependency on tourism-related employment'' which is 
``characterized by lower paying, seasonal and/or part-time 
jobs.'' \60\
---------------------------------------------------------------------------
    \60\ PDEIS 3-60 (1995).
---------------------------------------------------------------------------
    Towns like Kanab and Fredonia have had to struggle after 
major employers such as Energy Fuels and Kaibab Forest Products 
were forced to cut back or shut down due to Clinton 
Administration policies. Fredonia's logging and mining 
employment base, for example, ``has declined since 1990 by more 
than 300 jobs and ceased to exist in February 1995.'' \61\ The 
Project would have benefitted these communities immensely.
---------------------------------------------------------------------------
    \61\ PDEIS 3-74 (1995).
---------------------------------------------------------------------------
    Instead President Clinton chose to ignore their needs in 
his effort to appease the political whims of false 
environmentalism and partisan political gain.

                       Abuse of the NEPA Process

    The Warm Springs Project case illustrates not only an abuse 
of the Antiquities Act, it also provides an example of how the 
Clinton-Gore Administration uses NEPA as both a sword and a 
shield, abusing and manipulating the process to achieve its 
political ends.
    The decision to ``rope in the Kapairowits'' was made in CEQ 
on or around March 27, 1996. Within a week, on April 3, 1996, 
top staff at BLM were suddenly very interested in the Warm 
Springs Project PDEIS. An e-mail message from Willie Taylor, 
Director of the Office of Environmental Policy and Compliance 
(OEPC),\62\ to Terry Martin and Vijai Rai (also of OEPC) 
expresses this interest:
---------------------------------------------------------------------------
    \62\ OEPC is an office within the U.S. Department of Interior.

          I talked to Brooks \63\ this afternoon and he was 
        interested in the status of an EIS for coal mining on 
        the Kaparowitz ((?) I know the place, but I am not sure 
        how to spell it!) Plateau. We know that it is at the 
        PDEIS stage, but need to know how far along they are. I 
        believe that this is a delegated EIS (between BLM & 
        OSM, but in the AS/LM \64\). Without ``raising any 
        alarms,'' please check on the status (delegated vs. 
        non-delegated and time frame for the DEIS) of this EIS 
        and then let's get together to discuss tomorrow (Brooks 
        needs the information tomorrow).\65\ [Emphasis added.]
---------------------------------------------------------------------------
    \63\ Brooks Yeager, Deputy Assistant Secretary for Policy and 
International Affairs, Department of Interior.
    \64\ Bob Armstrong, Assistant Secretary for Land and Minerals 
Management (AS/LM), Department of Interior. The AS/LM oversees the 
Bureau of Land Management (BLM), the Minerals Management Service (MMS), 
and the Office of Surface Mining Reclamation and Enforcement (OSM).
    \65\ E-mail message from Willie Taylor to Terry Martin & Vijai Rai 
dated Apr. 3, 1996, 4:59 PM (emphasis added). Attachment 5.

    Due to the fact that the Warm Springs Project EIS was 
delegated and that it had been progressing for seven years 
without any involvement from Washington, D.C., it would have 
''raised alarms'' if OEPC sought to become involved. So OEPC, 
under the direction of Brooks Yeager, created the false 
appearance of being ``invited'' in as a consultant by the 
Assistant Secretary for Land and Minerals--by writing its own 
invitation. In an e-mail message from Willie Taylor to Brooks 
Yeager dated April 4, 1996, Taylor describes the invitation 
---------------------------------------------------------------------------
they have written:

          Below is a forwarded message with the information you 
        requested. Vijai drafted the document. While it is 
        longer than the paragraph you requested, I suggest that 
        if you wish to rewrite it you maintain the essential 
        element for this Office [OEPC]: (1) potential for 
        controversy (a logical reason for our participation) 
        and (2) that some mechanism be kept to get any comments 
        made by this Office fully addressed (since the EIS will 
        continue to be delegated). [Emphasis added.]
          As we discussed, any review by this Office at this 
        point is likely to be resented by the bureaus and has 
        the potential to significantly increase the time 
        required for the completion of the PDEIS. As such, if 
        AS/LM sends out a memo like the one we have discussed, 
        he needs to make it clear to his people (in staff 
        meetings, not just through the memo) that we have been 
        invited into this process.\66\ [Emphasis added.]
---------------------------------------------------------------------------
    \66\ E-mail message from Willie Taylor to Brooks Yeager dated Apr. 
4, 1996, 2:03 PM (emphasis added). Attachment 6.

    Of course, OEPC was not actually invited into the process. 
They sought involvement because Clinton Administration 
officials in the Department of Interior knew that the 
designation of the Utah Monument was in the works and they 
wanted to ensure that the PDEIS for the Warm Springs Project 
indeed presented the threat they hoped it did. They used the 
pretext of controversy (``a logical reason for our 
participation'') as a means to cover their true intention. Once 
again, as detailed in the earlier staff report, the 
Administration needed to create a phony paper trail to justify 
their actions.
    OEPC's involvement was improper not simply because it 
fabricated a paper trail and disguised their motives, it was 
improper because it was a violation of due process. The 
decision to approve or deny the permits necessary for the Warm 
Springs Project (the whole reason an EIS was required) rested 
with the Assistant Secretary for Land and Minerals (AS/LM) 
Armstrong. If the AS/LM had denied the permits, the applicant 
(Andalex) could then appeal the decision to DOI's Office of 
Hearing and Appeals. Jurisdiction over the appeal is also 
retained by the Secretary of Interior under title 43 Code of 
Federal Regulations part 4.5. The Office of Hearing and Appeals 
is organizationally under OEPC, as is the AS/LM.\67\
---------------------------------------------------------------------------
    \67\ Please refer to the DOI organizational chart, Attachment 7.
---------------------------------------------------------------------------
    The inappropriateness of OEPC's effort to ensure that its 
comments were addressed and incorporated in the predecisional 
PDEIS lies in the fact that if OEPC is eventually asked to 
contribute its analysis to an appeal of its own decision they 
will be unable to offer an unbiased review. Their involvement 
in effect denies applicants the ability to make meaningful 
administrative appeals and therefore denies their rights to due 
process--a Constitutionally protected right.
    Once Administration officials gained access to the PDEIS, 
they were disappointed by what they saw. In an April 9, 1996, 
memorandum Dave Alberswerth \68\ expressed his feelings: ``it 
strains credulity to base a `go' or `no go' decision on an 
analysis of two alternatives which appear to indicate no 
significant difference in environmental impacts for the area of 
either permitting or not permitting the proposed Smokey Hollow 
Project.'' \69\ [emphasis added]. He appears to be saying that 
there should be an alternative that does have significant 
impacts for the area. Alberswerth proposes such an alternative 
in his memo: ``In the minds of many, the potential future 
development activities that could utilize or improve upon the 
infrastructure created by this project is the most significant 
issue with the proposal.'' \70\
---------------------------------------------------------------------------
    \68\ In 1996, the Special Assistant to Bob Armstrong (AS/LM).
    \69\ Memorandum from Dave Alberswerth to A. Strasvogel dated Apr. 
4, 1996 (emphasis added). Attachment 4.
    \70\ Id.
---------------------------------------------------------------------------
    OEPC's involvement also appears to have been largely an 
effort to ``dirty up'' an EIS that presented no significant 
impacts, and therefore no threat, to the environment. Andalex 
had proposed mining only 100 to 120 million tons of coal over 
the life of the project. OEPC wanted to include an alternative 
that would have Andalex mining significantly more coal than 
Andalex planned. The result of such an alternative would be 
greater and more significant impacts, especially in the 
transport of the coal (e.g., more trucks hauling coal). A 
permit based on an EIS that contained such an alternative would 
be much easier to deny than the one reflecting Andalex's actual 
plans that presented minor impacts.
    OEPC sent the Utah EIS team its recommendations in a June 
6, 1996, memorandum. The suggestions were not taken well. The 
people on the ground who had been working on the Project for 
seven years recognized the recommendations for what they were: 
an effort by Washington to kill the mine. In a June 21, 1996, 
e-mail message to Willie Taylor, Vijai Rai described their 
reaction: ``[a]s expected, the field personnel are very 
unhappy. They feel that I was not given all the information 
that should have been reviewed by me as part of the review 
process. They feel that had I looked at all the information, 
some of my recommendations may have been different.''\71\
---------------------------------------------------------------------------
    \71\ E-mail message from Vijai Rai to Willie Taylor dated June 21, 
1996. Attachment 8.
---------------------------------------------------------------------------
    The dispute over whether to add another (more 
environmentally harmful) alternative to the PDEIS was never 
finally resolved. OEPC, led by Vijai Rai, was attempting to 
have it included (over the opposition of the Utah EIS team) 
almost until the time of the Utah Monument designation.
    On September 16, 1996, two days before the designation, 
Vijai Rai received an e-mail from Willie Taylor letting him 
know that he would no longer need to argue OEPC's case. ``I 
just spoke to Dave Alberswerth about the subject review. He 
wanted me to know that he thought you had done exactly what was 
asked and that you had done a good job.''\72\ Exactly what was 
asked, apparently, was to make every attempt to dirty up the 
EIS to make the Project appear more threatening than it was.
---------------------------------------------------------------------------
    \72\ e-mail message from Willie Taylor to Vijai Rai dated September 
16, 1996. Attachment 9.
---------------------------------------------------------------------------
    Soon after receiving his commendation, Vijai Rai wrote a 
handwritten note to ``Geoff'' \73\ which explained another 
reason for including a third, more harmful, alternative in the 
EIS:
---------------------------------------------------------------------------
    \73\ Probably Geoff Webb, a Department of Interior political 
appointee.

          I do wish to reiterate to you once again that the 
        PDEIS should evaluate in depth the environmental and 
        economic issues related to higher annual coal 
        production. If the detailed analysis were to conclude 
        that higher annual coal production is not feasible 
        within the life-of-mine (40 years) Andalex's claims, if 
        any, under taking [sic] will be based on a relatively 
        small coal mine. In my view, if the mine plan and/or 
        the permit were not approved, Andalex is likely to sue 
        the Govt. based on the value of all the coal under its 
        leases. I believe that the public and the Government 
        will come out better if we were to do the full analysis 
        up front.\74\
---------------------------------------------------------------------------
    \74\ Handwritten note from ``Vijai'' to ``Geoff'' dated Sept. 16, 
1996: Attachment 9.

    Vijai Rai's comments highlight the overall goal of OEPC's 
last-minute involvement in the Warm Springs Project EIS to kill 
the Project, not to make it better, and to prepare a litigation 
weapon, not an EIS. Through manipulating the environmental 
review, the Clinton Administration was attempting to depress 
the value of a private company's holdings to improve its own 
position later in court. Such a manipulation of the NEPA 
process, using it as both a shield and a sword, is an abuse of 
both the letter and spirit of the law.
    It is ironic that in this case Andalex had more respect for 
the NEPA process than the Clinton Administration. Chapter 5 of 
the PDEIS contains the following example:

          A variety of Federal, State, and local agencies, 
        interest groups, and private individuals have been 
        contacted by Andalex since the permitting process for 
        the Smoky Hollow Mine began. Between 1988 and 1996, 
        company representatives contacted over 2,500 people and 
        held more than 500 meetings to provide their 
        explanation of the proposed Project and resolve as many 
        issues and concerns as early in the process as 
        possible. Although these contacts were not made by the 
        Agencies as part of the formal scoping process for the 
        EIS, they did afford the interested public additional 
        opportunities to become familiar with the various 
        components that would eventually make up the Warm 
        Springs Project. As a result of these initial contacts 
        by Andalex, many of these groups and individuals were 
        more active in their participation during the formal 
        EIS scoping activities conducted by the Agencies.\75\
---------------------------------------------------------------------------
    \75\ PDEIS 5-6 (1995).

    Andalex, according to the federal agencies themselves, was 
committed to involving the public in an open process from very 
early on in the Project. This commitment is exactly what CEQ 
Chair Kathleen McGinty was speaking of when she testified to 
the importance of NEPA before the Senate Energy and Natural 
Resources Committee within days of the Utah Monument 
---------------------------------------------------------------------------
designation (September 26, 1996):

          In many ways, NEPA anticipated today's call for 
        enhanced local involvement and responsibility, 
        sustainable development and government accountability. 
        By bringing the public into the agency decision-making 
        process, NEPA is like no other statute and is an 
        extraordinary tribute to the American people to build 
        on shared values * * *
          [NEPA] gives greater voice to communities. It 
        provides the Federal Government an opportunity for 
        collaborative decision-making with state and local 
        governments and the public.\76\ [Emphasis added.]
---------------------------------------------------------------------------
    \76\ Quoted in Staff of House Comm. on Resources, Behind Closed 
Doors: The Abuse of Trust and Discretion in the Establishment of the 
Grand Staircase-Escalante National Monument. H.R. Rep. No. 105-D, 105th 
Cong., Ist Sess. at 8 (Comm. Print 1997).

    Of course, when the Utah Monument was designated by 
President Clinton, there was no effort to comply with NEPA. 
There was no effort to involve the public. In fact, as the 
earlier staff report shows, there was a calculated effort to 
evade NEPA and hide the decision from the public.
    What did affected communities think of the Utah Monument? 
What effects will it have on the local and state economies? On 
the environment? No one knows because the analysis for the Utah 
Monument designation, required under NEPA, was never done.
    Andalex and the agencies, by contrast, spent $8 million and 
seven years involving the public and assessing the impacts of 
the Project. It is clear what the ecological and socioeconomic 
impacts of the decision would have been. It is clear that the 
Project, in spite of the Clinton Administration's best efforts, 
was not the ``threat'' that the President said it was.
    Just as it had done when making the decision to designate 
the Grand Staircase-Escalante Monument, the Administration 
decided that the EIS on Andalex would say what the 
Administration needed it to say to justify the Utah Monument. 
And, as before, the Clinton Administration fabricated a paper 
trail to rationalize their actions. For the Clinton 
Administration, the ends of political expediency justified the 
means of abusing the process and the rights of the people of 
Utah.





                                
