Forest Service Violations of Section 303 of the 1998 Interior Department Appropriations Act

Published by the Government Accountability Office on 1999-05-14.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

      United States

GAO   General Accounting Office
      Washington, D.C. 20548

      Office of the General Counsel


      May 14, 1999

      The Honorable Don Young
      Chairman, Committee on Resources
      House of Representatives

      Subject: Forest Service Violations of Section 303 of the 1998 Interior Department
              Appropriations Act

      Dear Mr. Chairman:

      In your letter dated November 24, 1998 written jointly with the Honorable Frank H.
      Murkowski, you requested our opinion on whether the United States Forest Service
      engaged in lobbying in violation of federal law. In particular, you asked whether
      actions taken by employees of the Forest Service to implement a Communication
      Plan for the Forest Service Natural Resource Agenda violated section 303 of the 1998
      Interior Department Appropriations Act, which prohibited the expenditure of funds
      for certain lobbying activities undertaken by covered federal officials.1 In addition to
      your letter, you provided us with approximately 1500 documents you had received
      from the Forest Service in response to your request for documents concerning the
      Agenda and the Communication Plan.

      We have completed our review of those documents and have determined that
      activities described in them constitute violations of section 303. Specifically, these
      activities included (1) urging members of the public during a meeting to contact
      Congress in support of road funding initiatives in legislation and in the budget, and
      (2) a campaign to promote public support for a budget proposal seeking to change the
      way certain payments to states from Forest Service revenues are calculated.

      Because the documents themselves establish at least two violations, and in view of
      the time and resources that would be required to examine each action of every

        Department of the Interior and Related Agencies Appropriations Act, 1998, Pub. L.
      No. 105-83, § 303, 111 Stat. 1543, 1589 (1997). The Forest Service is funded by the
      Department of Interior Appropriations Act. Your letter also requested an opinion as
      to whether other relevant statutes had been violated, but we agreed with your staff to
      limit our analysis to violations of section 303.
employee pursuant to the Communication Plan, we have limited our opinion to these
violations. As discussed below, we are recommending that the Secretary develop
guidelines on lobbying under section 303 and educate his employees concerning


Section 303 of the 1998 Interior Department Appropriations Act is one of a long line
of restrictions on the use of appropriated funds by federal officials for lobbying, or
attempting to influence legislators.2 These restrictions began with the enactment of a
criminal prohibition in 19193 and continued with various appropriations restrictions
imposed from time to time from the 1950’s to the present on individual federal
agencies and on the government as a whole.4 Generally speaking, these laws have
been interpreted not to prohibit direct contact with legislators by executive branch
officials, but instead to prohibit a variety of other federal agency lobbying activities. 5

Section 303 of the 1998 Interior Department Appropriations Act provided:

          No part of any appropriation contained in this Act shall be available for any
          activity or the publication or distribution of literature that in any way tends
          to promote public support or opposition to any legislative proposal on
          which congressional action is not complete.

A nearly identical version of this restriction was first enacted in 19776 and has been in
every Interior Department appropriations law since.

 See generally United States General Accounting Office, Principles of Federal
Appropriations Law, 4-156 to 4-179 (2d ed. 1991).
 Third Deficiency Appropriation Act, fiscal year 1919, ch. 6, § 6, 41 Stat. 68 (1919)
(codified on June 25, 1948 at 18 U.S.C. § 1913).
    United States General Accounting Office, supra note 2, at 4-156 to 4-179.
 Department of the Interior and Related Agencies Appropriations Act, 1978, Pub. L.
No. 95-74, § 304, 91 Stat. 285, 307 (1977). This provision appended at the end of the
phrase, “in accordance with the Act of June 25, 1948 (18 U.S.C. 1913) [the criminal
anti-lobbying statute].” Without explanation, Congress eliminated the reference to
the criminal provision in 1982 and years thereafter; we have previously held that this
deletion did not change the reach of the statute. B-262234, December 21, 1995.

Page 2                                                                                 B-281637
The Senate Appropriations Committee that authored what is now section 303
described the concerns that motivated its inclusion:

        The Committee is disturbed to learn of certain public information activities
        being conducted by the National Park Service, Fish and Wildlife Service,
        and Forest Service that tend to promote pending legislative proposals to set
        aside certain areas in Alaska for national parks, wildlife refuges, national
        forest and other withdrawals. Colorful brochures printed and actively
        distributed by these agencies extol the benefits of such proposals and as a
        result, tend to promote certain legislative goals of these agencies…. 7

However, the Committee also noted that the provision “should not be construed as an
impediment on the agencies’ ability to respond to public information inquiries.”8

At the time that what is now section 303 was enacted, two other anti-lobbying
restrictions applied to actions of federal agency employees covered by the Interior
Department Appropriations Act. These were (1) the criminal prohibition on the use
of appropriated funds to influence members of Congress to favor or oppose
legislation (18 U.S.C. § 1913 (1994)), and (2) a government-wide restriction
prohibiting the use of appropriated funds for publicity or propaganda purposes
designed to support or defeat pending legislation.9 These restrictions had been
interpreted by the Department of Justice and GAO to prevent government officials
from explicitly asking members of the public to contact their elected representatives
in support of or opposition to pending legislation (so-called “grassroots lobbying”).10

Given the existence of these two prohibitions on grassroots lobbying at the time that
what is now section 303 was enacted, and given the clarity of the Senate Committee’s
purpose to prohibit certain public information activities like the brochures promoting
agency legislative goals, we concluded in our first opinion interpreting the provision
that it was meant to cover actions not reached by these other two restrictions.11 Thus

     S. Rep. No. 95-276, at 4-5 (1977).
     Id. at 5.
 Treasury, Postal Service and General Government Appropriations Act, 1979, Pub. L.
No. 95-429, § 607(a), 92 Stat. 1001, 1016 (1978).
 See B-262234, December 21, 1995; 59 Comp. Gen. 115, 117-18 (1979). The
Department of Justice continues to maintain this view of 18 U.S.C. § 1913.
Memorandum for the Attorney General and Deputy Attorney General from Walter
Dellinger, Assistant Attorney General, Office of Legal Counsel, April 14, 1995.
     59 Comp. Gen. 115, 118-19 (1979).

Page 3                                                                            B-281637
we held that the statute was designed “to cover particularly egregious examples of
‘lobbying’ by Federal agencies,” even though the material stops short of actually
soliciting the reader to contact his congressperson in support of or opposition to
pending legislation.12

In this first GAO opinion on what is now section 303, we considered a National
Endowment of the Arts (NEA) mass mailing of an information packet concerning the
NEA’s “Living Cities Program.” The packet did not directly exhort the public to
contact Congress. However, among other things, the cover letter to the information
packet was highly supportive of the program, describing it as a “unique piece of
legislation” and highlighting the fact that the only obstacle that remained in the way
of program implementation was a favorable house vote on program funding.
Moreover, the NEA timed its mailing to coincide with reconsideration of the
program’s appropriations after the conference committee failed to agree on funding.
We concluded that the mailing was designed to promote public support for the
funding, thereby violating the Interior Appropriations Act anti-lobbying provision.13

More recently, in a 1995 decision, we held that remarks made by a Fish and Wildlife
Service employee at a press conference called to generate opposition to a pending
amendment to the Clean Water Act tended to promote public opposition to the
legislative proposal and hence violated the Department of Interior Appropriations Act
restriction.14 The Fish and Wildlife Service employee did not urge members of the
public to contact their congressional representatives. Instead, he stated that “we
cannot afford to rollback protection” for wetlands, which he believed the legislation
would do. In analyzing the case, we pointed out that the press conference had been
called to coincide with the legislation’s active consideration in committee; attract
public attention; criticize the legislation; and link in the public mind the legislation
and its sponsor, who was the chairman of the committee considering the legislation
and represented the district where the press conference was held. Under these
circumstances, we concluded that the Fish and Wildlife Service employee’s allegation
of negative consequences that would result from enactment of the legislation at issue
violated the Interior Department Appropriations Act restriction by tending to promote
public opposition to the legislative proposal.15

     Id. at 120.
     Id. at 120-21.
     B-262234, December 21, 1995.
  Id. In our 1995 opinion, we noted that the Department of Justice has historically
expressed the view that the President’s constitutional role in the legislative process
includes the duty to communicate with the citizens of the United States on matters
that relate to legislation. E.g., Memorandum from William P. Barr, Assistant Attorney

Page 4                                                                          B-281637
On the other hand, in another NEA case, we did not find a violation where an NEA
official met with an arts lobbying organization at the arts group’s request during an
arts management conference, and gave a presentation concerning the agency’s budget
for the following year.16 We concluded that agency officials may meet with groups
sharing the agency’s interest in legislation to exchange information and viewpoints
without violating the Interior Department Appropriations Act restriction. In our view,
the meeting was essentially a vehicle for the lobbying group to brief its membership,
the NEA and others on its activities and lobbying efforts, and to hear about NEA’s
general policies and plans.

In the same NEA case, we also did not find a violation where an NEA official
responded to a question from the audience concerning what the audience could do to
support the NEA.17 The official, who had just finished making a presentation at the
arts management conference on the NEA’s structure, its function, and the status of its
reauthorization, stated that the audience could contact their elected representatives.
Because the answer was informational and more in the nature of a civics lesson than
an exhortation to take action, we did not view it as tending to promote public support
or opposition to pending legislation. Instead, we held that the official’s statement
constituted a good faith response to a question from a member of the public, a type of
communication not proscribed by the Interior Department Appropriations Act
restriction.18 As long as such statements are strictly factual and devoid of positive or
negative sentiments about the pending legislation, they are permissible.19

General, Office of Legal Counsel, to Attorney General Dick Thornburg, September 28,
1989 (“Constraints Imposed by 18 U.S.C. § 1913 on Lobbying Efforts”). Most recently,
“Anti-Lobbying Act Guidelines” issued on April 17, 1995, by the Office of Legal
Counsel Department of Justice, stated that lobbying activities may not be limited
when: “. . . personally undertaken by the President, his aides and assistants within the
Executive Office of the President, the Vice President, cabinet members within their
areas of responsibility, and other Senate-confirmed officials appointed by the
President within their areas of responsibility.” In this connection, we note that none
of the Forest Service employees involved in the activities complained of here are in
the categories of executive branch employees whose lobbying activities are
constitutionally protected under the Justice Department’s view.
     B-239856, April 29, 1991.
     59 Comp. Gen. at 119.

Page 5                                                                          B-281637
In testimony concerning government-wide legislation modeled on section 303 of the
Interior Appropriations Act, we recently summarized the principles we have utilized
in analyzing section 303 cases.20 We pointed out that while section 303 prohibits the
use of appropriated funds for explicit appeals to the public to contact their elected
representatives, “it also reaches more broadly to restrict appeals to the public that
implicitly tend to promote support for or opposition to legislative measures.” In each
case under section 303, we have had to reach a judgment whether under all the facts
and circumstances present, the activity tended to promote public support or
opposition to a pending legislative proposal. Among the factors we have considered
in analyzing whether a violation has occurred are the timing, setting, audience,
content, the reasonably anticipated effect of the questioned activity, and whether the
communication was intended to promote support or opposition to a legislative
proposal. For example, with respect to the intent factor, in the NEA “Living Cities
Program” case, we concluded that the NEA mass mailing “was designed to promote
public support for funding the Program.”21 In the case of the NEA official who
responded to an audience inquiry concerning what actions members of the audience
could take to support the NEA, we found that intent was lacking and that her
response was “incidental to her presentation and was not part of any plan to generate
action on the part of her audience.”22

With these principles in mind, we turn to the facts presented in this case.


The Natural Resource Agenda

On October 7, 1997, during testimony before the House Committee on Agriculture,
Secretary of Agriculture Dan Glickman announced that he had asked Forest Service
Chief Mike Dombeck to develop, by the beginning of 1998, a natural resource agenda
for the Forest Service.23 The Forest Service developed its Natural Resource Agenda in

  H.R. 3078, The Federal Agency Anti-Lobbying Act (GAO/T-OGC-96-18, May 15,
     59 Comp. Gen. at 121.
     B-239856, April 29, 1991.
  OC-DJ-1. This and similar citations refer to numbers assigned by the Forest Service
to the documents it provided to you in response to your request. Some of the Forest
Service documents consist of several unrelated attached pages with a document
number on the first page. When referring to material within such documents, we have

Page 6                                                                        B-281637
January 1998.24 The purpose of the Agenda was to set the future direction of the
Agency for the twenty-first century.25

The Agenda contained three legislative goals that were the subjects of the lobbying
alleged here. The first two legislative goals dealt with funding for Forest Service
roads. The third legislative goal was to change the way payments to states were made
from revenue collections.

With respect to road funding, the Agenda stated, “Road budgets will emphasize road
reconstruction, relocation, maintenance and decommissioning to protect and restore
watersheds while improving standards to more safely serve increased recreation use.”
It further stated, “We will explore with other agencies increased funding from the
Highway Trust Fund for roads providing the primary recreation access to federal
lands….” The two legislative goals the Agenda was referring to were: (1) enactment
of the fiscal year 1999 Forest Service budget proposal, which included funds for
maintenance and reconstruction of Forest Service roads;26 and (2) additional funding
for its heavily-traveled arterial and collector roads from the Highway Trust Fund27
through amendment of reauthorization legislation for the Intermodal Surface
Transportation Efficiency Act of 1991 (ISTEA), which was then pending in Congress.28

This attempt to obtain additional funding from the Highway Trust Fund through
ISTEA was also referred to by Forest Service employees as the “Access America”
initiative.29 The Access America effort was aimed at obtaining funds from the

cited the number assigned to the first page of the multi-page document in which the
material appears.
  USDA Forest Service FY 1999 Budget Explanatory Notes for the Committee on
Appropriations, 2-3, 150-54, 202-08, reprinted in Department of Interior and Related
Agencies Appropriations for 1999 : Hearings Before the Subcomm. on Department of
the Interior and Related Agencies of the House Comm. on Appropriations, 105th Cong.
6-7, 154-58, 206-12 (1998) [hereinafter Hearings].
 The Highway Trust Fund finances most federal highway programs from taxes on
motor fuels and tires, among other things. See 26 U.S.C. § 9503 (1994).
  The ISTEA reauthorization bill, H.R. 2400, was introduced on September 4, 1997.
143 Cong. Rec. H6917 (daily ed. Sept. 4, 1997). It was enacted on June 9, 1998.
Transportation Equity Act for the 21st Century, Pub. L. No. 105-178, 112 Stat. 107
     Forest Service “Access America” Briefing Book, § 1.

Page 7                                                                        B-281637
Highway Trust Fund to finance road construction, reconstruction and maintenance
on roads that accessed federal lands. According to Forest Service documents, the
addition of amounts from the Highway Trust Fund would allow the Forest Service to
focus its appropriated dollars on the maintenance and repair of its local road system,
and to the decommissioning of unneeded roads.30 The Trust Fund would then be used
to repair the backbone arterial and collector road system.31

The third legislative goal set by the Agenda was to “[d]ecouple payments to states
from revenue collections to provide a stable, predictable level of funding for county
roads and schools.”32 This statement referred to a change the Forest Service sought in
current law.33 Under existing law, 25 percent of most Forest Service receipts is paid
to the states for distribution to the counties in which National Forest System lands
are located for financing public roads and schools. Because receipts from sales of
timber have declined in recent years, these payments to states have also declined.
Therefore the Administration proposed in its fiscal year 1999 budget to decouple
payments from revenue collections and instead provide a set level of payments in
order to give these counties a predictable source of income.34 The figure estimated in
the budget for these payments was $270 million.35 The budget proposal stated that the
Administration would transmit proposed legislation to Congress later in 1998
intended to stabilize the payments,36 which it in fact did on April 2, 1998.37

The Communication Plan for the Natural Resource Agenda

During the first week of January 1998, the Forest Service Office of Communications
began developing a Communication Plan for the rollout and subsequent
communication of the Natural Resource Agenda over the ensuing months.38 The final

     See, e.g., id.
     16 U.S.C. § 500.
 USDA Forest Service FY 1999 Budget Explanatory Notes, supra note 26 at 247-48;
Hearings, at 251-52.
     See OC-CH-20.

Page 8                                                                        B-281637
version of the Communication Plan stated that the goal of the Plan was “to have key
audiences receive and understand the Forest Service Natural Resource Agenda,
resulting in general support for the principles and future direction of Forest Service
resource management.”39 (Emphasis in original.) The audiences named in the
Communication Plan included employees, Congress, the media and external groups.
The multiple vehicles to be used to communicate the Agenda included internet and
intranet sites, speeches to interest groups at their functions, roundtables, feature
articles, op-ed pieces, one-on-one briefings, posters, brochures, electronic
newsletters, and press conferences, “to name a few.”

According to the Plan, the rollout was to begin with the Chief’s speech to Forest
Service employees on March 2, 1998. Over the ensuing months, agency leadership
would “communicate with targeted audiences, aimed at development of support for
the management principles engendered in the Agenda.” With respect to employees,
the Plan was to involve an extensive effort to educate employees concerning the
Agenda so that they could disseminate it in the field. With respect to Congress, an
objective of the Plan was that “key elements of the [Natural Resource Agenda]
receive support in Congress.” With respect to the media, among other activities, the
Chief was to “meet with editorial boards on every trip to the field” and “push the
Agenda.” The strategy was “to gain internal and constituent support” by providing
information to the media “resulting in balanced or favorable articles, feature pieces,
and editorials.” With respect to the external groups, the Chief was to make “key
speeches in influential settings to explain and expand upon the Agenda….” The goal
of these communications with external groups was to have them “receive,
understand, and support” the Agenda.


As previously stated, section 303 of the 1998 Interior Department Appropriations Act
provides that, “No part of any appropriation contained in this Act shall be available
for [the prohibited activities].” (Emphasis supplied.) The Forest Service, although
part of the Department of Agriculture, receives its appropriations from the
Department of Interior and Related Agencies Appropriations Acts. Therefore Forest
Service employees were covered by section 303 during fiscal year 1998.

Under section 303, appropriated funds may not be used for activities promoting
public support or opposition “to any legislative proposal on which congressional
action is not complete.” (Emphasis supplied.) We look first to the Forest Service’s
legislative goals in the Natural Resource Agenda to determine whether they are
“legislative proposals” under section 303. As previously noted, these goals included:


Page 9                                                                          B-281637
funding for Forest Service roads through an amendment to ISTEA, funding for Forest
Service roads through the fiscal year 1999 budget request, and funding to stabilize
payments to states through the fiscal year 1999 budget request. The bill to
reauthorize ISTEA was substantive legislation and therefore clearly constitutes a
“legislative proposal” within the meaning of section 303, as our previous section 303
opinions have held.40 Appropriations legislation is also covered by this language.41
We have not previously had the opportunity to consider whether section 303 applies
to proposed presidential budgets.

While neither the language nor the legislative history of section 303 defines the
meaning of the phrase “legislative proposal on which congressional action is not
complete,” the committee that authored the provision expressed its concern that
activities of certain federal agencies extolling the benefits of pending legislative
proposals tended “to promote certain legislative goals of these agencies.”42 Thus it
was the promotion of the executive departments’ legislative goals contained in
“legislative proposals” under consideration by Congress that motivated enactment of
section 303. Legislative goals of the executive branch are set forth for the
consideration of Congress not only in bills drafted or otherwise supported by the
executive branch, but also in the President’s budget, which is his proposal for how
money should be spent in the next fiscal year.

Indeed, presidential legislative proposals to Congress in general and the budget in
particular have a special status in our constitutional and legislative scheme. The
Constitution provides that the President shall from time to time “recommend to
[Congress’] Consideration such Measures as he shall judge necessary and
expedient.”43 The President is required by statute to submit one such measure, the
budget, to Congress by the first Monday of February each year.44 Under the statute,
the President must propose appropriations for the next fiscal year and identify any
proposed appropriations attributable to newly-established or expanded government
activities. Moreover, according to a provision of the Congressional Budget Act of
1974,45 the President’s submission of the budget—the blueprint for government

     See, e.g., B-262234, December 21, 1995.
     See, e.g., 59 Comp. Gen. 115, 119 (1979).
     S. Rep. No. 95-276, at 4-5 (1977).
     U.S. Const. Art. II, § 3.
     31 U.S.C. § 1105 (Supp. III 1997).
     2 U.S.C. § 631 (1994).

Page 10                                                                       B-281637
spending for the following fiscal year—initiates the process for enactment of the
annual appropriations laws, just as congressional bills do for authorizing legislation.

The Rules of the House of Representatives also reflect the role of proposed
Presidential budgets in initiating the legislative process for annual appropriations
laws. Under the Rules, “estimates of appropriations” from the executive departments
are to be addressed to the Speaker and referred by him to the appropriate
committees,46 just as bills are referred to standing committees of jurisdiction.47 One
of these committees, the Appropriations Committee, is required by the Rules within
thirty days of transmittal of the budget by the President to Congress to hold hearings
on the budget, with particular reference to, among other things, “the basic
recommendations and budgetary policies of the President in the presentation of the
Budget.”48 Similarly, the Budget Committee has the duty under the Rules to hold
hearings on the budget in order to develop the concurrent resolution on the budget
for each fiscal year.49

We have also held that another appropriations restriction prohibiting lobbying
activities with respect to “legislation pending before Congress” applied not just to
actual appropriations legislation, but to proposed presidential budgets as well.50
Because the phrase “legislative proposal” is at least as broad if not broader than the
phrase “legislation pending before Congress,” and because proposed Presidential
budgets have a special constitutional, statutory and procedural role of setting forth
for consideration by Congress the President’s legislative goals for how money should
be spent in the next fiscal year, we conclude that presidential budgets are also
“legislative proposals” within the meaning of section 303.

In this case, as previously noted, the President’s fiscal year 1999 budget contained
two relevant initiatives. First, the budget included funds for maintenance and
reconstruction of Forest Service roads.51 Second, the budget included funds for the

     Rules of the House of Representatives, Rule XL, § 936; Rule XXIV, cl. 2, § 882 (1997).
     Id., Rule X, cl. 5 (a), § 700; Rule X, cl. 1, § 669.
     Id., Rule X, cl. 4(a)(1)(A), § 694a.
     Id., Rule X, cl. 4(b), § 695.
  See, e.g., B-178648, September 21, 1973 (government news broadcasts exhorting
people to contact Congress in support of the President’s budget violated
appropriations provision prohibiting publicity or propaganda designed to support or
defeat legislation pending before Congress).
     See supra note 26.

Page 11                                                                            B-281637
payments to states proposal.52 While the actual legislation required to implement the
proposal regarding payments to states was not submitted to Congress along with the
proposed budget, the Forest Service Fiscal Year 1999 Budget Explanatory Notes
contained a description of the need for the legislation it planned to submit later in the
year and a description of the formula the law would use to determine the payments.

Thus, the Natural Resource Agenda made reference to at least three “legislative
proposals” under section 303: the ISTEA reauthorization legislation; the fiscal year
1999 budget request for Forest Service road funding; and the fiscal year 1999 budget
request for funding to stabilize payments to states. Congressional consideration was
not complete on these legislative proposals during the time period in which the
lobbying activities alleged here took place, approximately February through April,
1998. As previously noted, the ISTEA reauthorization bill was introduced as H.R.
2400 on September 4, 1997 and was not enacted until June 9, 1998.53 The President
transmitted the budget to Congress on February 2, 199854 and it was still pending at
this time as well. Therefore the only remaining question is whether Forest Service
employees engaged in “any activity or the publication or distribution of literature that
in any way tend[ed] to promote public support or opposition to” any of these three
legislative proposals during fiscal year 1998.

Efforts to Promote Road Funding

As previously noted, the official “rollout” of the Forest Service Natural Resource
Agenda came with a speech to Forest Service employees by Forest Service Chief
Mike Dombeck on March 2, 1998.55 Among other things, Chief Dombeck discussed
the need to obtain the road funding proposed in the Administration’s fiscal year 1999
budget, the possibility of obtaining Highway Trust Funds for the Forest Service’s
heavily-traveled roads, and the legislative proposal to stabilize payments to states.56
In a letter the same day to all employees, the Chief urged employees to “discuss the
agenda with your colleagues, your friends and your neighbors.”57

     See supra note 34.
     See supra note 28.
     Budget of the United States Government, Fiscal Year 1999, Feb. 2, 1998.
     NRE-BP-123; see also PSW-02.

Page 12                                                                          B-281637
In another letter the same day to regional management officials, the Chief asked
officials to “communicate this speech and the ideas presented by the agenda to as
wide an audience as possible both inside and outside the agency.”58 He further stated
that he was forwarding to them for their review the Communication Plan for the
Natural Resource Agenda. He urged them to “look for opportunities to implement
actions called for in the plan,” and not to wait “for specific requests from Washington
before taking action.” Instead, he said they should “use the national plan as a guide
for developing your own Regional, or Station communication effort around the
agenda.” According to an electronic mail report on a conference call between the
Chief and regional officials concerning the rollout of the Natural Resource Agenda,
the Chief told the officials “that he wants each of us to be proactive with the agenda.
That includes working aggressively with employees, interest groups and
congressionals to move the full agenda forward.”59

Apparently, at least some regional officials took this message to heart. On March 20,
1998, the Huron-Manistee National Forest held a public “Friends of the Forest”
meeting.60 In attendance at this meeting were individuals from the Sierra Club,
Georgia Pacific Corporation, and other groups, and members of the general public.
The agenda, printed on Huron-Manistee National Forests letterhead, indicates that the
meeting ran from 9:00 am to 3:30 pm and consisted of presentations by Forest Service
personnel. From 1:30 to 2:00, a Forest Planner for the Forest Service discussed the
“New Roads Policy.” The detailed minutes of the meeting indicate that the new roads
policy he discussed was the “Access America” ISTEA reauthorization initiative to
fund maintenance of arterial and collector roads through the Highway Trust Fund.
According to the minutes, the Forest Planner stated, in part:

       There are 86,000 miles of Forest Development arterial and collector roads
       that are…major access [sic] to the National Forests but don’t make sense to
       be under State or County jurisdiction. Historically, these roads were
       constructed, reconstructed and maintained through a combination of roads
       appropriations and commodity production (timber sales, oil and gas mining,

       An estimated 80% of the traffic on these arterial/collector roads is recreation
       oriented; the demand for recreation opportunities and the associate access
       is increasing dramatically and has been steadily since the 1950’s. It is time
       to consider the Forest Service becoming a public road authority on the


Page 13                                                                            B-281637
       arterial collector forest development roads that are, for all practical
       purposes, public roads. These roads should then be reconstructed with
       highway trust dollars.

       The Forest Service estimates a deferred reconstruction backlog of $10.5
       billion on existing arterial/collector forest development roads. It would take
       $375 million annually to begin working toward eliminating that backlog and
       move toward a safe, comfortable transportation system for the National
       Forest user.

       This initiative is not maintenance needs assessment [sic]; it is a
       reconstruction needs issue. Maintenance needs are being addressed
       through annual appropriations. The FY 99 President’s budget requests a
       26% increase in road maintenance appropriations.

Also according to the minutes, a Forest Supervisor delivered the closing remarks. He
stated, in part, “We need to communicate these issues not only locally but included
[sic] Detroit, Grand Rapids and other downstate cities and keep the dialogue
open…Let Congress know what our problems and solutions are. They need to know
what is important to you. We will try to have more public forums.” (Emphasis
supplied.) The road funding initiatives were the only legislative proposals that were
discussed in the meeting, according to the minutes, and therefore this exhortation to
contact Congress must have referred to them.

This “Friends of the Forest” meeting was clearly an activity that would tend to
promote public support for these road funding legislative proposals, as proscribed by
section 303. Forest Service employees used appropriated funds, at the very least in
terms of their salaries, to urge members of the public to inform Congress of Forest
Service problems concerning road funding and the solutions proposed by the Forest
Service--enactment of the Forest Service budget and amendment of the ISTEA
reauthorization legislation to provide Highway Trust Funds for Forest Service roads.

Unlike the NEA case in which the NEA met with an interest group and discussed its
general plans and policies,61 the Forest Service went beyond merely providing
information to encouraging participants to let “Congress know what our problems
and solutions are.” Also unlike the same NEA case in which an NEA official, as an
incidental part of her presentation, responded in good faith to a question about what
people could do to support the NEA,62 the Friends of the Forest meeting was part of
the overall effort set forth in the Communication Plan to gain support for the Forest

     B-239856, April 29, 1991.

Page 14                                                                           B-281637
Service Natural Resource Agenda, which included the road funding legislative
proposals. As we have recently pointed out in testimony, section 303 not only
prohibits grassroots lobbying of the sort engaged in here, but it reaches more broadly
to restrict even implicit appeals. 63 Therefore, this explicit appeal to the public is
certainly encompassed within the ambit of section 303 and therefore is a violation of
that provision.

Efforts to Promote Payments to States Proposal

In addition to the Communication Plan prepared for the overall Natural Resource
Agenda, a “Communication Plan for Reforming Forest Service Payments to States”
was also prepared by the Forest Service Office of Communications on March 6,
1998.64 This communication effort was to be part of and consistent with the overall
Communication Plan. The goal of the Payments to States Communication Plan was
to “have key audiences receive and understand the Forest Services’ payment to states
proposal, resulting in general support for the proposal.” (Emphasis in original.)
Objectives of the Plan included, among others:

      1. Have each Forest Supervisor visit with their Commissioners/Supervisors and
         explain the effects this proposal will have upon that county.
      2. Have interested Members of Congress, and their staffs, briefed and kept
         abreast of the status of the proposal.
      3. Have key media outlets support the proposal, as indicated by supportive
      4. Have key groups support the proposal.

With respect to its general approach, the Plan stated, “Although we will provide
informational material for all interested parties, we will take extra steps to inform and
involve key groups such as industry, elected county/state officials, and environmental
groups.” In this regard, the Plan stated that appropriate professional associations and
interest groups such as the National Governors Association and the International
Association of Fish and Wildlife Agencies would be identified and provided
information on the proposal. Personal contacts, rather than fax or electronic mail,
were to be used by Forest Service leaders who had relationships with the identified
groups. Forest Service leaders were to “take every opportunity to meet with media,

 H.R. 3078, The Federal Agency Anti-Lobbying Act , supra note 20; see also
B-239856, April 29, 1991.


Page 15                                                                          B-281637
local elected officials, employees, and interest groups to explain [the Natural
Resource Agenda]. As appropriate, the payments proposal will be emphasized.”

Finally, specifically with respect to the involvement of field personnel, the Plan noted
that the Natural Resource Agenda contained a legislative proposal concerning
stabilizing payments to states and that all employees had received a copy of the
Chief’s speech, which referenced the proposal. The Plan stated that regional leaders
would also receive a briefing packet containing information on the payments to states
proposal and a directive from Chief Dombeck detailing his expectations concerning
sharing information on the proposal. Regional leaders, according to the Plan, would
be expected to share payments to states information from the packet with their
County Supervisors and then report to the Washington office on their contacts as well
as concerns and support for the proposal. A Washington office employee would be
designated “to continually assess support for the proposal.”

On March 13, 1998, Chief Mike Dombeck sent the directive to regional leaders
referred to in the Communication Plan concerning stabilizing payments to states.65 It

          On March 2, in the Forest Service Natural Resource Agenda, I stressed
          the need to work with Congress and local communities to provide
          stable and predictable payments to States…As many of you know, the
          Administration is proposing legislation to stabilize payments to States. I
          support this proposal and request you and your employees to assist me
          in sharing information with your internal and external customers.

The memorandum then listed a number of expectations the Chief had for the regional
leaders, including:

          1. Hold informational sessions with all employees by March 30.
          2. Forest Supervisors or District Rangers must meet with and brief county
             commissioners or supervisors and school administrators to explain the
             proposal and get their concerns and key items of support by March 30.
          3. Field units should seek opportunities to brief the media on the proposal.
          4. Whoever you determine is the most effective contact should meet with and
             brief the governors’ offices, State education associations, and State
             associations of counties by March 30.
          5. Report back to Kevin Elliott (kelliott/wo) using the enclosure for
             summarizing your briefings by March 30.


Page 16                                                                            B-281637
The enclosure referred to in the Chief’s directive consisted of a form for regional
personnel to list individuals contacted and whether they were supportive or opposed
to the payments to states legislative proposal.

On the same day that Dombeck sent his directive to regional leaders concerning the
payments to states proposal, the Washington official designated as the contact for the
regional managers on the issue gave a speech in which he explained the reason
regional officials were being urged to have this “dialogue” with county officials:
“[without] the support of the local communities this proposal has limited success on
Capital [sic] Hill.”66

The documents produced by the Forest Service demonstrate that the Chief’s directive
was thoroughly implemented by field personnel. Literally hundreds of contacts were
made by field staff and reported on the contact forms supplied to the field along with
the Chief’s directive, or otherwise documented.67 Among the individuals and groups
contacted were county commissioners and other county officials, school board
officials, mayors and other city officials, governors, state legislators and other state
officials, judges, Chambers of Commerce, education associations, the National
Association of Counties and the Western Governors Association.68

The briefing packet sent to regional officials along with the Chief’s directive listed the
benefits of reforming Forest Service payments to states.69 According to the briefing
packet, these benefits included an overall funding increase for the payments and a
stabilization of the funding levels so that payments used for public schools and roads
would not be reduced as a result of declining revenue collections. The packet also
pointed out that under the proposal counties would receive at least what they
received in 1997 and that many counties would receive higher amounts.

The documents demonstrate that regional officials used this packet extensively to
brief individuals contacted.70 At least one region used this material to prepare
individualized briefing information to show the benefits to that region of the reform
the Forest Service was advocating.71 The region-specific briefing material and

     See, e.g., WO-PA-KE-2--WO-PA-KE-81; WO-PA-KE-84.
     See WO-PA-KE-13; WO-PA-KE-14.
     See, e.g., R4-8.

Page 17                                                                           B-281637
material listing the overall benefits of the proposal were used by the regional officials
in their contacts with eleven mayors in the region.72

In at least some cases, this effort appears to have had its intended effect of promoting
support for the payments to states proposal. Regional staff for a Forest Service
region encompassing several western states reported, among other things, that
“many” of the individuals contacted “indicated they may contact their congressional
delegation with their comments.”73 Similarly, a superintendent of the Baker County
Schools in Florida who was contacted was reported to be “very excited; will make
calls to local members of Congress to support.”74 In addition, a school superintendent
in Mullan, Idaho wrote a letter to a Forest Supervisor in Idaho stating that he was
very pleased to see the proposed legislation to stabilize payments to states and asking
the Forest Supervisor to let him know if he could be of assistance “in promoting this
legislation.”75 Further, an electronic mail message authored by a Department of
Agriculture Assistant to the Under Secretary for Natural Resources and the
Environment stated that the Alpine County Board of Supervisors in California had
adopted a resolution supporting the payments to states proposal.76 Another electronic
mail message authored by the same individual concerning the payments to states
issue noted that, “The field has been meeting with school boards and county officials
to explain the provisions. Grassroots people are starting to get this issue into the

We believe that this campaign to promote the payments to states legislative proposal
violated section 303 of the Interior Department Appropriations Act.78 The briefing
packet used in the contacts was highly supportive of the payments to states proposal,

     See R10-01; R10-10; R10-20.
 The campaign not only tended to promote public support for a legislative proposal,
but it in fact did so, as demonstrated by the responses to the campaign noted above.
While the fact that members of the public stated that they planned to contact
Congress does not itself prove that violations occurred, it does demonstrate that the
Forest Service was successful in its campaign.

Page 18                                                                          B-281637
as was the case in the NEA mass mailing decision.79 The audience selected—public
officials likely to be concerned about funds for schools—was one that would be
particularly responsive to such a proposal. Moreover, as articulated repeatedly in the
Communication Plan for the payments to states proposal, the goal of the campaign
was to promote public support for the proposal, thus satisfying the intent factor we
have often found significant in these cases. Indeed, this Forest Service effort was
comprised of just the sort of “particularly egregious instances of agency lobbying
through public information campaigns” that we have held violate the Interior
Department Appropriations restriction.80

It is impossible to tell from the documents produced by the Forest Service how fully
the overall Communication Plan for the Natural Resource Agenda was implemented.
Concerns expressed by members of Congress about possible illegal lobbying
activities by Forest Service employees may have discouraged some further planned
activities. Handwritten notes of conference calls between the Washington office and
the regions during the time period after members of Congress began expressing these
concerns, on and after March 13, 1998,81 indicate that the regions were being
cautioned about lobbying.82

We believe that further implementation of the Communication Plan would likely have
resulted in a number of violations of section 303 of the 1998 Interior Appropriations
Act. As repeatedly stated in the Communication Plan, the wide range of activities
planned to communicate the Agenda had the objective of obtaining public support for
the Agenda, which of course included the three legislative proposals discussed above.
Moreover, these three legislative proposals were not minor aspects of the Agenda; the
majority of the documents produced by the Forest Service concerning
implementation of the Agenda focused on one or all of these proposals.83 Given the

     59 Comp. Gen. at 120.
     B-239856, April 29, 1991 (citing 59 Comp. Gen. 115 (1979)).
     See infra note 85 and accompanying text.
   See, e.g., E-VS-247 (“Appearance of Lobbying /Don’t/Provide information”); E-VS-
245 (“Field Don’t initiate any more contacts @ this time/Respond to inquiries &
requests”). (Emphasis in original.)
   In one of the documents, the Deputy Chief of Programs and Legislation was quoted
as saying that “stabilizing payments is a key building block of the Chief’s agenda.”
RO9-S+C-18. Moreover, an indication of the significance of these legislative proposals
to the Forest Service is that draft legislation was submitted to Congress by it or by the
USDA on both the road funding and payments to states proposals. As previously
noted, the Department of Agriculture submitted draft legislation to Congress to
stabilize payments to states on April 2, 1998. See supra note 37. The Forest Service

Page 19                                                                         B-281637
magnitude of the effort that was to be undertaken to satisfy the Communication Plan,
it is highly likely that in addition to the violations described above, some of these
other planned activities would have in fact tended to garner such support, in violation
of section 303.

Indeed, in light of the large number of activities planned to implement the Agenda and
the time and resources that would be required to investigate each action of every
Forest Service employee pursuant to this plan, we have limited our analysis to the
documents provided.84 We believe that the documents themselves establish at least
the two specific violations discussed above.


We have found no evidence that Forest Service employees were aware that they were
violating the law and continued to take actions that they knew were wrong. Indeed,
the evidence appears to us to be to the contrary. As far as we can determine, the
topic of lobbying is not mentioned in any of the documents dated prior to the time
that members of Congress first raised concerns regarding Forest Service
communication plans or lobbying by Forest Service employees.85 However,
documents subsequent to that time suggest that employees should be careful not to
lobby.86 Unfortunately, several of these documents indicate a misunderstanding of
what was (and still is) prohibited by the Interior Department Appropriations Act

We have contacted USDA’s Office of General Counsel, which has informed us that it
had no guidelines concerning lobbying under section 303 during the events at issue
here. Moreover, despite an April 9, 1998 letter from Chief Dombeck to Chairwoman

also drafted and sent to Representative Peter DeFazio, in response to his March 11,
1998 request, an amendment to the ISTEA reauthorization legislation to achieve its
goal with respect to that legislation. See E-VS-205; E-VS-376; E-VS-377.
  Thus, for example, we did not go beyond the documents to inquire into whether the
Forest Service in fact engaged in planned activities that violated section 303 with
respect to the media and interest groups.
  A March 13, 1998 letter from Chairman Don Young and Chairwoman Helen
Chenoweth to Chief Dombeck appears to be the first letter to the Forest Service
raising concerns about communication plans or lobbying. See E-VS-51.
     See supra note 82.
  See, e.g., RO9-30 (handwritten notes on March 20, 1998 conference call with regions
concerning payments to states “in Pres. Budget therefore we aren’t really lobbying”).

Page 20                                                                        B-281637
Helen Chenoweth stating that the Forest Service was working with USDA’s Office of
General Counsel to develop such guidelines,88 the Office of General Counsel informed
us that it still has none.


We have concluded that the expenditure of funds by the Forest Service for certain
activities undertaken to implement a Communication Plan for the Forest Service
Natural Resource Agenda violated section 303 of the 1998 Interior Department
Appropriations Act. Specifically, these activities included (1) urging members of the
public during a meeting to contact Congress in support of road funding initiatives in
legislation and in the budget, and (2) a campaign to promote public support for a
budget proposal seeking to change the way certain payments to states from Forest
Service revenues are calculated.

We are sending a copy of our opinion to the Secretary of the Department of
Agriculture, and we recommend that the Secretary develop guidelines on lobbying
under section 303 and educate his employees concerning them so that future
violations do not occur. We shared a draft of this opinion with the USDA’s Office of
General Counsel and made some changes to the opinion in response to their
comments. An official from the USDA Office of General Counsel stated that the
Office of General Counsel intended to follow our recommendation concerning the
development and dissemination of guidelines.

Sincerely yours,

Robert P. Murphy
General Counsel


Page 21                                                                       B-281637