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Legislative and Regulatory Update

February 2001 by Scott Harn

• Norton treasures environment but environmentalists worry
Denver, Colorado (AP)—Gale Norton remembers growing up in Colorado, hiking with her dog, watching elk in a grove of aspen trees and contemplating the eternity gazing at jagged mountain peaks.

Norton says when she looks at those resources now, she also sees an opportunity to make better use of the two-thirds of the nation’s lands in federal hands—and that includes access for business.

And that’s what worries environmentalists. They fear that Norton—who once worked for James Watt, Ronald Reagan’s controversial Interior Secretary—will rely too much on corporations to police themselves. They say she knows her stuff but worry about her priorities. In Colorado, they say, Norton was not very aggressive on environmental issues and too willing to rely on local control and voluntary compliance. With disputes over air quality, oil drilling and other issues on the horizon, many environmentalists are concerned.

“This is going to be a challenge for her, especially since she favors free market and local control solutions,” said Susan LeFever, spokeswoman for the Colorado chapter of the Sierra Club.

Norton said her naysayers are focusing too much on the job she took out of law school in 1978 with a legal foundation run by Watt, who once was named public enemy No. 1 by the Sierra Club.

“It’s all 20-year-old news,” said Norton.

Still, even some of her attackers are saying they expect her to win Senate confirmation.

“I’m not sure that anyone is thinking it can be stopped,” said Ken Cook, president of the Environmental Working Group, a Washington-based think tank. “People are seeing what they can do to at least to raise some very big questions.”

While serving as Colorado’s first female attorney general, Norton made it clear in 1998 she favored a change in federal law that would allow polluters to avoid legal trouble if they turned themselves in and cleaned up the mess.

“Companies are more likely to find out if they have environmental problems if there’s some hope regulators will work with them,” Norton said in 1998.

She also went up against the federal government, opposing the U.S. Forest Service in its attempt to take over private and state water rights for by-pass flows.

Born in Wichita, Kansas, the 46-year-old lawyer cut her teeth on environmental issues, going to work for Watt at a Denver legal foundation before Watt went on to become Reagan’s Interior Secretary.

In 1984, she went to work for the Agriculture Department in Washington. A year later, she was named assistant solicitor for conservation and wildlife at the Interior Department, where she worked to open the Arctic National Wildlife Refuge to oil drilling.

In 1990, Norton made her first run for public office, beating Colorado Attorney General Duane Woodard and won re-election in 1994.

Two years later, she competed for the Republican nomination for U.S. Senate, losing to Wayne Allard, partly because of her support for abortion rights.

Norton has argued that government must not to get too involved trying to direct growth.

“I don’t think that the state or any government guesses particularly well in the long run,” she said in 1995.

Over the years she has urged a broad interpretation of the “taking” of property by the government, advocating that landowners be paid for losses incurred through government regulations that limit use of their land to protect wetlands or endangered species.

Wyoming Republican Senators Craig Thomas and Mike Enzi praised the nomination of Norton. In a statement, Enzi said Norton is a “westerner” with experience in issues of water, endangered species and public lands.

“During the reign of (Interior) Secretary Bruce Babbitt, the role of local and state governments has been all but ignored. This appointment and the new administration are a welcome change, especially for those of us who live in the West,” he said.

Thomas said he looks forward to a constructive relationship with Norton in trying to strike a balance between conservation and public lands access. He said he thinks local opinions will be respected and considered under Norton.

“I’m encouraged that this appointment signals a new approach to governing,” he said in a statement.
Democratic Senator Mary Landrieu of Louisiana is expected to support Norton as well. Landrieu is a property-rights supporter and is hoping for Norton’s support in passing a bill to use offshore drilling revenues for land purchases.

Senator Wayne Allard, R-Colorado, said the fact that there are 13 female senators this year will help Norton. He said he expects her to be confirmed.

“We will find ways to develop our nation’s resources in a balanced and an environmentally friendly way,” Bush said in appointing her.

He advocates oil and gas exploration in areas environmentalists want off limits to drilling, and while she reserved detailed discussion for her confirmation hearing, Norton said she supports his positions.

• From the National Forest Service...
In a memo dated September 12, 2000, National Forest System Associate Deputy Chief Paul Brouha dictated to Regional Foresters that “the major priority” will be “to better administer mineral activities.”

Brouha states “...we shall emphasize improved protection of the environment by ensuring that all mineral operations are administered to standard in FY 2001.”

Regarding mineral applications that are pending review, Brouha says, “Work that must be deferred to accomplish this requirement should be described, and additional funding requested, in mid-year and out-year budget submissions. If adjustments are not adequate, then new operations should not be processed.”

On a related note, the Downieville Ranger District in California is backed up with over 100 Plans of Operation (POs) pending. Any new POs filed may not be processed at all as they try to balance the job of inspecting close to 1400 current PO’s and Notices of Intent active in their district. In addition, they are requiring a double-signature to make POs valid.

After reviewing a PO, the Forest Service mails it back to the applicant with their recommendations. If the applicant agrees with the recommendations, he/she must sign it and mail it back to the Forest Service for another signature. POs without the double-signature are not considered valid.

The Northern Mining Council is also getting the word out to claim holders to make sure they keep their paperwork current on POs that have already been issued. There is currently no established procedure to apply for reinstatement of an expired PO in their area.

Let’s hope that a Bush Administration will straighten out the priorities of the Forest Service.

• Suit Filed Against Roadless Initiative
Lumber company Boise Cascade, a cattle partnership, three snowmobile groups and an Indian tribe have joined forces in a lawsuit over the Clinton Administration’s Roadless Initiative.

The lawsuit, filed in Boise, Idaho, names as defendants Secretary of Agriculture Dan Glickman, Forest Service Chief Mike Dombeck, and their respective agencies.

Mike Moser of Boise Cascade stated, “The coalition feels the Forest Service bypassed the forest planning process, ignored forest plans and intends a top-down mandate.”

“The rule-making went around Congress to create de facto wilderness,” he added.

Idaho Attorney General Al Lance announced that Idaho is also filing suit in Federal Court to stop the Roadless Initiative.

The Roadless Initiative includes about one-third of National Forest lands and has received intense criticism from lawmakers, miners and prospectors, particularly in the western states.

• New EPA rules restrict ombudsman
Coeur D’Alene, Idaho (AP)—Idaho’s U.S. senators are taking exception to proposed rules they say will undermine the investigation into the federal government’s Superfund cleanup in the Silver Valley.

The Environmental Protection Agency (EPA) published a set of draft guidelines for its ombudsman’s office recently in the Federal Register. The ombudsman’s office is charged with investigating public complaints about the EPA.

Idaho Republican Senators Mike Crapo and Larry Craig were quick to criticize the new rules as an attempt to strip the ombudsman’s office of its ability to conduct independent investigations of EPA.

“It appears the EPA is doing exactly what we were concerned about,” Crapo said.

The new regulations would limit where and when the ombudsman can conduct hearings and would give the agency more say about what is fair game for the ombudsman, Crapo said.

“It’s a gigantic loophole to basically give the EPA regional offices first, and the EPA headquarters second, the ability to veto an investigation,” he said. “It is like the fox guarding the hen house.”

Additional guidelines that limit ombudsman investigations to matters of national importance and restrict the office from delving into matters of pending litigation are unacceptable, Crapo said.

Last summer, Ombudsman Bob Martin and his then-chief investigator Hugh Kaufman began an investigation into the EPA’s Superfund cleanup of mining pollution in the Silver Valley.

At that time, Kaufman engaged in a heated exchange with EPA attorneys about the legal and geographical boundaries of the agency’s authority in the Coeur d’Alene River Basin under Superfund law.

Kaufman was dismissed from his post in December by EPA Deputy Director Tim Fields.

Kaufman also believes the agency is trying to prevent the ombudsman’s office from conducting independent investigations. He said the ombudsman’s office is being censured essentially for working too well.

But Fields defended the new guidelines, saying they will provide a direction to the national and regional ombudsman offices. He said the EPA will continue to support the Coeur d’Alene Basin investigation by providing the ombudsman with the resources to complete the work.

Crapo prefers that the EPA toss out the rules entirely. In a draft letter to the agency, Crapo asks Fields that “any implementation of this guidance be deferred indefinitely.”

Crapo said he also plans to reintroduce a bill he authored last session that he believes will preserve the ombudsman’s independence. The bill would trump any administrative guidelines crafted by the EPA, including the recent draft proposal.

• Forest Service Sierra Nevada plan is even opposed by Feinstein
The Forest Service announced their management plan on January 12 for the Sierra Nevada Mountains, which run north-south in California along the border of Nevada, and they promptly received criticism from some unlikely sources.

The plan includes preserving old-growth trees on approximately 4 million acres and maintaining restrictions on an additional 2.6 million acres. Annual timber harvesting would be drastically reduced over the next 10 years, from the current 200 million board feet per year to 108 million board feet. Only trees smaller than 30 inches could be harvested on the west side, and trees smaller than 24 inches on the east side.

Even Democratic Senator Feinstein of California had problems with the plan.

A competing plan, developed by a community effort in the town of Quincy, was already passed by Congress and signed by President Clinton in 1998. It called for selective logging of large “treatment areas” to reduce fire danger.

Feinstein fired off a letter to Ann Veneman, Bush’s choice for secretary of agriculture. Feinstein asked Veneman to return to the Quincy plan, stating, “If (the Quincy plan) works, we’ll learn something. If it doesn’t, we’ll learn something else. It continues to be one of my top priorities.”