[House Hearing, 107 Congress]
[From the U.S. Government Publishing Office]
CONFLICTING LAWS AND REGULATIONS: GRIDLOCK ON THE NATIONAL FORESTS
=======================================================================
OVERSIGHT HEARING
before the
SUBCOMMITTEE ON FORESTS AND
FOREST HEALTH
of the
COMMITTEE ON RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
__________
December 4, 2001
__________
Serial No. 107-76
__________
Printed for the use of the Committee on Resources
Available via the World Wide Web: http://www.access.gpo.gov/congress/
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COMMITTEE ON RESOURCES
JAMES V. HANSEN, Utah, Chairman
NICK J. RAHALL II, West Virginia, Ranking Democrat Member
Don Young, Alaska, George Miller, California
Vice Chairman Edward J. Markey, Massachusetts
W.J. ``Billy'' Tauzin, Louisiana Dale E. Kildee, Michigan
Jim Saxton, New Jersey Peter A. DeFazio, Oregon
Elton Gallegly, California Eni F.H. Faleomavaega, American
John J. Duncan, Jr., Tennessee Samoa
Joel Hefley, Colorado Neil Abercrombie, Hawaii
Wayne T. Gilchrest, Maryland Solomon P. Ortiz, Texas
Ken Calvert, California Frank Pallone, Jr., New Jersey
Scott McInnis, Colorado Calvin M. Dooley, California
Richard W. Pombo, California Robert A. Underwood, Guam
Barbara Cubin, Wyoming Adam Smith, Washington
George Radanovich, California Donna M. Christensen, Virgin
Walter B. Jones, Jr., North Islands
Carolina Ron Kind, Wisconsin
Mac Thornberry, Texas Jay Inslee, Washington
Chris Cannon, Utah Grace F. Napolitano, California
John E. Peterson, Pennsylvania Tom Udall, New Mexico
Bob Schaffer, Colorado Mark Udall, Colorado
Jim Gibbons, Nevada Rush D. Holt, New Jersey
Mark E. Souder, Indiana James P. McGovern, Massachusetts
Greg Walden, Oregon Anibal Acevedo-Vila, Puerto Rico
Michael K. Simpson, Idaho Hilda L. Solis, California
Thomas G. Tancredo, Colorado Brad Carson, Oklahoma
J.D. Hayworth, Arizona Betty McCollum, Minnesota
C.L. ``Butch'' Otter, Idaho
Tom Osborne, Nebraska
Jeff Flake, Arizona
Dennis R. Rehberg, Montana
Allen D. Freemyer, Chief of Staff
Lisa Pittman, Chief Counsel
Michael S. Twinchek, Chief Clerk
James H. Zoia, Democrat Staff Director
Jeff Petrich, Democrat Chief Counsel
------
SUBCOMMITTEE ON FORESTS AND FOREST HEALTH
SCOTT McINNIS, Colorado, Chairman
JAY INSLEE, Washington, Ranking Democrat Member
John J. Duncan, Jr., Tennessee Dale E. Kildee, Michigan
John E. Peterson, Pennsylvania, Tom Udall, New Mexico
Vice Chairman Mark Udall, Colorado
Mark E. Souder, Indiana Rush D. Holt, New Jersey
Michael K. Simpson, Idaho Anibal Acevedo-Vila, Puerto Rico
Thomas G. Tancredo, Colorado Betty McCollum, Minnesota
J.D. Hayworth, Arizona
C.L. ``Butch'' Otter, Idaho
------
C O N T E N T S
----------
Page
Hearing held on December 4, 2001................................. 1
Statement of Members:
McInnis, Hon. Scott, a Representative in Congress from the
State of Colorado, prepared statement of................... 2
Peterson, Hon. John E., a Representative in Congress from the
State of Pennsylvania...................................... 1
Statement of Witnesses:
Bosworth, Dale, Chief, Forest Service, U.S. Department of
Agriculture................................................ 3
Prepared statement of.................................... 7
Lawrence, Nathaniel, Senior Attorney and Director of Forestry
Project, Natural Resources Defense Council................. 37
Prepared statement of.................................... 40
Perry, James P., Former Associate General Counsel (Retired),
Natural Resources Division, Office of the General Counsel,
U.S. Department of Agriculture............................. 43
Prepared statement of.................................... 45
Thomas, Jack Ward, Boone and Crockett Professor, School of
Forestry, University of Montana, and Chief Emeritus, USDA
Forest Service............................................. 9
Prepared statement of.................................... 13
OVERSIGHT HEARING ON CONFLICTING LAWS AND REGULATIONS: GRIDLOCK ON THE
NATIONAL FORESTS
----------
Tuesday, December 4, 2001
U.S. House of Representatives
Subcommittee on Forests and Forest Health
Committee on Resources
Washington, DC
----------
The Subcommittee met, pursuant to call, at 3:10 p.m., in
room 1334, Longworth House Office Building, Hon. John Peterson
presiding.
STATEMENT OF THE HON. JOHN PETERSON, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF PENNSYLVANIA
Mr. Peterson. [Presiding.] Good afternoon. We welcome you
to the Subcommittee on Forests and Forest Health. This hearing
will come to order. The Subcommittee is meeting today to hear
testimony on Conflicting Laws and Regulations-- Gridlock on the
National Forests.
I am going to share the statement of our Chairman who is en
route. The laws and regulations that govern the national forest
and public lands are the result of more than 200 years of
American democracy. Federal land management policy has changed
dramatically over this time, reflecting a change in public
values, opinions, and priorities. Unfortunately, as this body
of law has evolved and expanded over the decades, policymakers
and the Forest Service have failed to effectively integrate the
sea of relevant laws, regulations, and court decisions. The
result is a mishmash of congressional mandates, administrative
directives, and court decisions that do not fit into a larger
coherent pattern for Federal land managers or the American
public. Instead of providing clear and consistent direction
about the purposes and priorities of our public lands and the
national resources, the combined effect of these laws and
regulations have often created a vicious cycle of confusion,
conflict on the ground. The result is a decisionmaking process
that is more likely to produce gridlock than progress.
Let me be clear on this point, though. The overwhelming
majority of laws and regulations now on the books were
implemented with the best of intentions and for some policy
objectives that are so important. But the reality is that
together these laws and regs are not functioning effectively or
efficiently together. They have created a decisionmaking
apparatus that is on the verge of collapsing under its own
weight.
The implications of this statement have been ominous for
communities throughout the West and around the Nation. In
Steamboat Springs, Colorado, for example, a community nestled
along the Routt National Forest, conflict among laws and
regulations dramatically slowed the response time of Forest
Service officers following a massive blow-down and beetle kill.
The blow-down occurred in 1997, and yet because this needed
forest management work implicated the Wilderness Act, the
Endangered Species Act, the Clear Water Act, the Roadless
Initiative and numerous other regulations, the Forest Service
is just now finishing its NEPA work in spite of a determined
effort. This delay allowed the beetle epidemic to spread to
numerous high-risk areas throughout the forest. The beetle kill
has now also reached private lands as well.
The Forest Service has experienced this kind of conflict up
close and personal for years now. Thanks to the competing goals
and values of numerous laws and regulations, it has become an
agency without a clear mission or purpose.
The General Accounting Office recognized the negative
impact of these competing demands on the Forest Service nearly
5 years. In a 1997 report, the GAO identified the requirements
of numerous planning and environmental laws that have not been
harmonized as a primary cause of inefficiency and
ineffectiveness in the Forest Service's decisionmaking process.
Two years before that, then Chief of the Forest Service, Jack
Ward Thomas, who is here with us today, made a similar
argument. We are now closing in on 2001 and gridlock still
prevails. Clearly, that must change.
Policy for the national forests and public land should
establish clear management priorities. Although the legislative
intent and organizational goals must be clear, there is also
need for flexible local implementation that meets the local and
regional needs.
Finally, the laws and regulations that govern management of
our national forests must be more thoroughly integrated so that
progress will be the norm instead of impasse.
I know that injecting some common sense back into the
Forest Service decisionmaking process is a priority for you,
Mr. Bosworth. It is for this Subcommittee, too. We look forward
to working with you, your agency, and other witnesses
testifying here today toward that end. I guess we do not have a
minority statement at this time.
[The prepared statement of Mr. McInnis follows:]
Statement of The Honorable Scott McInnis, Chairman, Subcommittee on
Forests and Forest Health
The laws and regulations that govern the national forests and
public lands are the result of more than 200 years of American
democracy. Federal land management policy has changed dramatically over
this time, reflecting a change in public values, opinions and
priorities. Unfortunately, as this body of law has evolved and expanded
over the decades, policy makers and the Forest Service have failed to
effectively integrate the sea of relevant laws, regulations and court
decisions. The result is a mishmash of congressional mandates,
administrative directives and court decisions that do not fit into a
larger coherent pattern for federal land managers or the American
public. Instead of providing clear and consistent direction about the
purposes and priorities of our public lands and natural resources, the
combined effect of these laws and regulations has often created a
vicious cycle of confusion and conflict on the ground. The result is a
decision-making process that's more likely to produce gridlock than
progress.
Let me be clear on this point, though--the overwhelming majority of
laws and regulations now on the books were implemented with the best of
intentions and for policy objectives that are still important. But the
reality is, together these laws and regs are not functioning
effectively or efficiently together. They have created a decision-
making apparatus that is on the verge of collapsing under its own
weight.
The implications of this stalemate have been ominous for
communities throughout the West and around the nation. In Steamboat
Springs, Colorado, for example - a community nestled along the Routt
National Forest in my District--conflict among laws and regulations
dramatically slowed the response time of Forest Service officers
following a massive blow-down and beetle kill. The blow-down occurred
in 1997; and yet, because the needed forest management work implicated
the Wilderness Act, the Endangered Species Act, the Clean Water Act,
the Roadless Initiative and numerous other regulations, the Forest
Service is just now finishing its NEPA work, in spite of a determined
effort. This delay allowed the beetle epidemic to spread to numerous
high-risk areas throughout the Forest. The beetle kill has now also
reached private lands as well.
The Forest Service has experienced this kind of conflict up close
and personal for years now. Thanks to the competing goals and values of
numerous laws and regulations, it has become an agency without a clear
mission or purpose.
The General Accounting Office recognized the negative impact of
these competing demands on the Forest Service nearly 5 years ago. In a
1997 report, the GAO identified the requirements of numerous planning
and environmental laws that have not been harmonized as a primary cause
of inefficiency and ineffectiveness in the Forest Service's decision-
making process. Two years before that, then Chief of the Forest Service
Jack Ward Thomas - who is here with us today--made a similar argument.
We are now closing in on 2001 and gridlock still prevails. Clearly,
that must change.
Policy for the national forests and public lands should establish
clear management priorities. Although the legislative intent and
organizational goals must be clear, there is also a need for flexible,
local implementation, that meets local and regional needs. Finally, the
laws and regulations that govern management of our national forests
must be more thoroughly integrated, so that progress will be the norm
instead of impasse.
I know that injecting some common sense back into the Forest
Service's decision-making process is a priority for you, Mr. Bosworth.
It is for this Subcommittee too. We look forward to working with you,
your agency and the other witnesses testifying here today toward that
end.
______
Mr. Peterson. I would like to introduce our witnesses. On
the Panel we have Mr. Dale Bosworth, Chief, USDA Forest
Service, and Mr. Jack Ward Thomas, former Chief of the USDA
Forest Service. So we not only have current management, but we
have the wisdom of those who have been there.
Let me remind the witnesses that under our Committee rules,
you must limit your oral statements to 10 minutes. You have
just been given twice the normal time--I tell you, this guy is
being lenient--but your entire statement will appear in the
record. Now it gives me a great deal of pleasure to recognize
Chief Bosworth for his statement. Dale, welcome.
STATEMENT OF DALE BOSWORTH, CHIEF, USDA FOREST SERVICE
Mr. Bosworth. Thank you. Mr. Chairman, I would like to
start by reading something that was given to me today that I
thought was pertinent to this hearing. According to Greek
mythology, Sisyphus was condemned to ceaselessly rolling a rock
to the top of a mountain, whence the stone would fall back of
its own weight. The gods had thought that there was no more
dreadful punishment than such a futile and hopeless task.
The gods had never envisioned the Forest Service's
decisionmaking process. And, truly, our process is like rolling
a stone to the top of a mountain and having it roll back down,
and endlessly doing that.
I thank you for this opportunity to testify this afternoon.
I have been looking forward to this hearing. This is very
important to the Forest Service.
I would like to start by sharing some goals that I have.
Forest Service employees and I are truly committed to the goals
of protecting and improving the quality of the land, improving
the quality of the water, the wildlife, the air, as well as the
goals of protecting and preserving the Nation's historic and
cultural resources. I do believe that the Forest Service can do
this, utilizing broad authorities that are provided by statute
and that have never been rescinded, to make choices among a
whole range of public benefits in determining the proper
management for national forests and grasslands.
I believe the Forest Service needs to be judged based upon
what we leave on the land, and I am personally prepared to
abide by that judgment.
I want to talk about improving agency decisionmaking so
that line officers can truly, in a productive way, engage the
stakeholders so that we can surface issues: so we can secure
the necessary consultations, necessary permits and approvals;
so we can focus on the environmental aspects that really do
matter and merit detailed analysis; and make decisions in a
more timely fashion.
Since I have become Chief, I have talked a lot of times to
people in different places about the ``analysis paralysis''
that I believe grips the Forest Service. I use that expression
to talk about the difficult, costly, confusing, seemingly
endless processes that have been put in place in order for our
agency line officers to comply with the laws that were enacted
by Congress, and the implementing regulations that were put in
place by the Forest Service as well as other agencies.
These processes involve a lot of people, they result in a
lot of studies and analyses, and they involve many
administrative appeals and lots of litigation. Too frequently,
these processes combine to keep work from happening on the
ground and we often never get the work accomplished on the
ground, even on real small projects that really have
environmental merit. The inability to complete projects can
have a huge effect, detrimental effect, on the land. We really
have too little to show for our efforts, except sometimes
completion of the process, without getting the work done on the
ground in the end. Too little value returns to the public with
the resources that we are supposed to be managing and
protecting.
I would like to give an example. Last year I was regional
forester in the northern region, and in Montana we had some
huge fires in the Bitterroot Valley. Those fires burned in the
Bitterroot National Forest and also the Sula State Forest,
which is adjacent to the national forest. The State salvaged 22
million boardfeet of fire-killed wood by the summer, and they
had a little bit more, 4 to 6 million to do, last I had heard.
In contrast, the Bitterroot National Forest finally completed
the final environmental impact statement in October. On
November 23rd, I requested that our Under Secretary exercise
his authority to make the decision on whether or not to proceed
with the project.
Now, I realize that this course is going to result in the
decision not being subject to administrative appeal. And I
believe that the administrative appeal procedure in this case
would add very little to the quality of the decisionmaking, and
it would unnecessarily delay the implementation of some really
needed restoration activities. Regardless of our course of
action, though, it is clear that this matter is going to be
challenged in court, and I guess I believe that we need to move
rapidly to court to seek resolution.
I also proposed that the Under Secretary delay his decision
on the project until the 10th of December so we can provide for
public notice before he makes that final decision.
While there may be some legitimate reasons for differences
between the way that the Sula State Forest and Bitterroot
National Forest reach decisions, I am not satisfied with the
kind of result that we have.
Your letter of invitation that was sent to me said that
this afternoon's hearing was going to be to examine the
conflicting laws and regulations, as well as the negative
effects in the growing impacts of regulation by other Federal
agencies, and then to identify some possible solutions.
You refer to the ``conflicting laws.'' some people talk
about the ``crazy quilt of laws,'' and some refer to analysis
paralysis and gridlock.
First, many times I don't think that this is a conflict
necessarily between commodity production and environmental
stewardship. Conserving national environments has been a
statutory responsibility of the Forest Service for a long time.
And, second, I don't believe that the laws--I don't
necessarily believe the laws themselves conflict. Their
coordination, though, I do believe, presents a huge challenge.
One fundamental challenge is the limits on management
discretion afforded the agency line officers that resulted from
the numerous laws that we have to comply with.
And, just to name a few, the Organic Administration Act of
1897, the Multiple Use Sustained Yield Act of 1960, the Forest
and Rangeland Renewable Resources Act of 1974. These shaped the
management of the National Forest System by requiring the
Forest Service to apply the principles of multiple use and
sustained yield to meet the needs of the American people.
Now, there wasn't any specific direction on how to meet the
management choice. Since the 1960's, though there have been a
huge number of other laws that have been passed. The Endangered
Species Act, the National Historic Preservation Act, the Clear
Air Act, the Clean Water Act, the National Environmental Policy
Act, the National Forest Management Act, the Federal Land
Policy and Management Act, the Administrative Procedures Act,
the Federal Advisory Committee Act are some of those that have
been passed that have all too often been interpreted and
implemented in ways that really do constrict the ability of our
land managers on the ground to make choices or to exercise any
kind of broad discretion in determining the appropriate actions
that need to be taken. These are well intentioned and they are
good laws. The problem is the thousands and thousands of pages
of regulations have been put together to implement those.
The direction on how an agency is to arrive at a decision
under each law has created an extremely complex operating
arena. I believe that there is a lot of confusion by the public
on how these laws interact and how they are to be implemented,
even by those people who have been working with us for a long
time. It is those things that I talk about when I am talking
about analysis paralysis.
And resolving this analysis paralysis is pretty much my No.
1 priority. And I want to go after this problem head on, and I
don't want to get into a bunch of finger pointing or blaming
people, blaming another agency or others for the problem. I
think that we are part of the problem in the Forest Service. We
need to deal with it.
The second challenge, I think, results from just sort of
the natural tension that exists between our desires as managers
to have clearly defined, logical, and understandable processes
that produce timely decisions on one hand, and then the time
that is needed to consider the relevant information, on the
other hand, about a vast and complex and ever-changing
environment.
The public, I think, expects our processes to use the best
available information, and to result in timely decisions and
implementation. We also need to be interacting with Federal,
State, local, tribal governments, local communities,
scientists, citizens, and public interest groups so that we
consider these different viewpoints or these disparate views in
our decisionmaking process, and provide appropriate
opportunities for redress for those who disagree with our
decision.
Every decision or every action that affects the environment
represents an opportunity for appeal or litigation for those
who are unsatisfied with the resolution of an issue. And I
don't believe that is inherently bad, I just think that it can
prevent it from ever coming up with a final decision.
I will say that I am somewhat troubled that each step of
this process is being used more and more as a forum for debate
over national policy as much as specific issues that are
related to a particular project.
Those people who disagree with national policy or
congressional intent use the appeal and litigation
opportunities to question that policy over and over again. And
then the district ranger is having to deal with that public
policy issue.
I have been with the Forest Service for a long time, and
have a lifetime of being involved in the culture and the debate
on these issues. I have had a lot of jobs, and I have developed
an appreciation for how the job is performed on the ground by
our employees. Getting these jobs done with our employees is
really the foundation of our credibility with the public.
One of greatest strengths of the Forest Service has been
the ability of our folks at the district level in the forest to
make and implement decisions that have taken national and local
interests into account and to strike the appropriate balance.
The problem is not new. We have talked about the effects
and symptoms for a lot. I don't want to get into analysis
paralysis about analysis paralysis. We need to come up with a
solution. We are doing a number of things that I would be happy
to talk about in the questions. But we have taken on some
efforts with contractors to look at our processes, pointed out
that we have over 800 different steps in our decisionmaking
processes. We have a couple of teams that are looking at
different opportunities to work with the environmental laws.
And I am going to have some recommendations and suggestions
when those teams' work are complete.
So, as I said, I think we have great opportunities to make
some significant changes. I am looking forward to working with
you to be able to accomplish some changes. It is really
important to me that we are able to get some bipartisan support
for working together with you to come up with some changes that
are going to result in a more effective, efficient process for
the Forest Service.
So that concludes my statement. I would be happy to answer
any questions that you have may have.
Mr. Peterson. We thank you, Chief Bosworth for your
testimony.
[The prepared statement of Mr. Bosworth follows:]
Statement of Dale Bosworth, Chief, Forest Service, U.S. Department of
Agriculture
Mr. Chairman,
Thank you for this opportunity to testify this morning on the laws
and regulations governing the management of this nation's national
forests and grasslands.
Mr. Chairman, let me begin by sharing my goals. Forest Service
employees and I are committed to the goals of protecting and improving
the quality of our land, our water, our wildlife, and our air and with
the goals of protecting and preserving this nation's precious historic
and cultural resources. I believe the Forest Service can do so
utilizing its broad authorities, provided by statute and never
rescinded, to make choices among the whole range of public benefits in
determining the proper management of national forests and grasslands.
The Forest Service should be judged by ``how we leave the land,''
and I am personally prepared to abide by that judgment. Forest Service
managers will continue their efforts to ensure that all land management
decisions are based on a collaborative, integrated approach that
addresses the environmental implications of our actions in a timely and
efficient manner. That is how it should be.
I want to talk to you this morning about improving agency decision
making so that line officers can engage stakeholders, vet issues,
secure all necessary consultations, permits and approvals, focus on the
environmental aspects that truly matter and merit detailed analysis,
and make decisions in a timely fashion.
Since I was privileged to be named by Secretary Veneman as the
Chief, I have spoken many times about the ``analysis paralysis'' that
grips the Forest Service.
When I use that expression, I mean the difficult, costly, confusing
and seemingly endless processes that have been put in place in order
for agency line officers to comply with the laws enacted by Congress
and the implementing regulations put in place by the Forest Service and
other agencies.
Those processes involve many people, result in many studies and
analyses and involve many administrative appeals and much litigation.
Too frequently, however, these processes combine to keep on-the-ground
work from ever actually being accomplished, even very small projects or
projects of great environmental merit. The inability to complete
projects can have a detrimental effect on the land. We have too little
to show for our efforts except for completion of the processes. Too
little value returns to the public, or the resources that we are
charged with protecting and managing.
Let me share an example. Last year in Montana, when I was Regional
Forester, we had huge fires in the Bitterroot Valley. Fires burned in
both the Bitterroot National Forest and the Sula State Forest, which is
adjacent to the national forest. The Bitterroot's final environmental
impact statement to cover post-fire treatment and rehabilitation was
released in October. On November 23, I proposed that the Under
Secretary delay his decision on the project until December 10 to
provide public notice that the Under Secretary would be making the
final decision on the project. In contrast, the State finished salvage
of 22 million board feet of fire-killed and damaged timber this summer
and will harvest the remaining 4-6 million board feet this year.
While there may be some legitimate reasons for this disparity in
reaching the point of on-the-ground action, I am not satisfied with
this result.
Your letter of invitation said this morning's hearing was to
examine the conflicting laws and regulations, as well as the negative
effects and the growing impacts of regulation by other federal agencies
and to identify some possible solutions.
You refer to the ``conflicting laws.'' Others talk about the
``crazy quilt of laws.'' Let me make several points:
First, many times this is not a conflict between commodity
production and environmental stewardship. Conserving natural
environments has been a statutory responsibility of the Forest Service
since it was created, even as it was charged with producing timber,
forage and other commodities.
Second, while I do not believe the laws conflict, their
coordination does present complex challenges.
One fundamental challenge is the limits on management discretion
afforded agency line officers that have resulted from the numerous laws
with which the Forest Service must comply.
The Organic Administration Act of 1897, the Multiple Use-Sustained
Yield Act of 1960, and the Forest and Rangeland Renewable Resources
Planning Act of 1974 shaped the management of the National Forest
System by requiring the Forest Service to apply the principles of
multiple use and sustained yield to meet the diverse needs of the
American public. Specific direction on how to make the management
choices was not provided.
Since the mid-1960's, there have been a plethora of authorities
that affect the Forest Service and all other federal land management
agencies. The Endangered Species Act, the National Historic
Preservation Act, the Clean Air Act, the Clean Water Act, the National
Environmental Policy Act, the National Forest Management Act, the
Federal Land Policy and Management Act, the Administrative Procedure
Act, and the Federal Advisory Committee Act, among others, with some
exceptions, have all too often been interpreted and implemented in ways
that constrict the ability of land managers to make choices or to
exercise broad discretion in determining the appropriate management of
forests.
However well intentioned, Congress has enacted multiple laws and
the Forest Service and other agencies have promulgated thousands of
pages of regulations that often contain overlapping and sometimes
conflicting requirements, procedural redundancies and multiple layers
of interaction. The direction on how an agency is to arrive at a
decision under each law has created an extremely complex operating
arena. There is considerable confusion by the public, even by seasoned
and experienced participants, with the processes and the decisions
being made, as well as interpreting the requirements for making
decisions.
That's what I mean by ``analysis paralysis.'' Resolving this
analysis paralysis is my highest priority.
I want to address this problem head on, not engage in finger
pointing, or blaming everybody but us for the current problem. In
written reports and hearing testimony, the General Accounting Office
and others have detailed their views on the underlying causes of
inefficiency and ineffectiveness in the Forest Service's decision-
making. No question--we share responsibility for the problem. But we
cannot fix the current problem by ourselves.
A second challenge results from the natural tension that exists
between our desires as managers for clearly defined, logical, and
understandable processes that produce timely decisions on one hand and
the time needed to consider all relevant information about a vast,
complex, and ever-changing environment. The public expects our
processes to use the best available information and to result in timely
decisions and implementation. The processes dictated by regulation for
incorporating new information into decision making, however, create the
potential for never getting out of the planning loop or halting
projects already under way.
We also need to interact with Federal, state, local, and tribal
governments, local communities, scientists, citizens and public
interest groups so that we consider disparate views into our decision
making and provide appropriate opportunities for redress to those who
disagree with our decisions. Every decision or agency action that
affects the environment represents an opportunity for appeal or
litigation for those who are not completely satisfied with the proposed
resolution of an issue, the implementation of a project, or active
management of federal lands. That is not inherently bad, but this can
prevent an agency from ever finalizing a decision.
Mr. Chairman, I have a lifetime of being part of the Forest Service
culture, traditions, and debate about the management of America's
forests and rangelands. In 35 years working in the Forest Service, I've
had many jobs and I have developed an appreciation for how the job
being performed on-the-ground by our employees is the foundation of our
credibility with the public. One of the greatest strengths of the
Forest Service has been the ability of line officers at the ranger
district and forest levels to make and implement decisions that take
national and local interests into account and strike an appropriate
balance. We need to get that flexibility back. And we won't until we
fix this analysis paralysis.
Mr. Chairman, this problem is not new. We've talked about the
effects and the symptoms a lot. We don't need analysis paralysis about
analysis paralysis. It's time we start trying to do something to get
good, sound decisions and project implementation. Here's what the
Forest Service is doing.
First and foremost, we have embarked on a close review of our own
processes to reduce the time and expense it now takes to get work done.
Not just to look, but also to make changes. It's very frustrating to
our folks in the field and it's frustrating to us in Washington that we
spend so much time and energy on our processes that add only marginal
value to our decisions.
The agency's Inventory and Monitoring Institute, in collaboration
with a business consultant, has begun assessing the activities required
for project level planning and implementation. Using information from
the laws, regulations, the Forest Service manual, agency handbooks, and
the knowledge and experience of agency personnel with subject matter
expertise, we are developing a model of the complex and numerous
activities required. Legal and subject matter experts within the
Executive Branch, including the Council on Environmental Quality, still
must validate the draft model. But I believe it could serve as a sound
and powerful tool that the Forest Service, other agencies and Congress
could use to consider changes to the current the legal and regulatory
framework.
I have also tasked a team to update former Chief Jack Ward Thomas'
study on the Forest Service legal and regulatory framework. You will
hear today from Chief Thomas about his original report. We will update
this work, taking into consideration new laws, regulations, and court
decisions since the study was prepared in 1995. That report will
identify how we can resolve the issues--through actions the Forest
Service, as well as others can take.
Our frustration with the status quo provides us the motivation to
examine our processes from top to bottom. Our focus is in large part on
National Environmental Policy Act procedures because they provide the
framework for analyzing our management decisions and, if done properly,
integrate our consideration of all the other requirements set out in
myriad laws, regulations and directives.
Our opportunity is real. No one doubts that integration is flawed
or lacking, and that these same laws could be implemented more
efficiently and effectively. I am dedicated to revising, not just
reviewing, our processes. We must provide the best tools and training
for our line officers and staff. As we put our house in order, any need
for reforms beyond the Forest Service will become clearer. Our priority
will then be to work with all the agencies that oversee the
implementation of the environmental laws that affect our decision
making and, if appropriate, to seek your help with legislative changes.
I expect our endeavors to resolve analysis paralysis will take
significant effort and a great deal of time and will generate
opposition.
The Council on Environmental Quality, which, as you know, is
responsible for the NEPA regulations that apply to all federal
agencies, and the other federal agencies and departments with whom we
closely work, such as the Department of Commerce, the Department of the
Interior, and the Environmental Protection Agency, share our desire to
improve the effectiveness and efficiency of our processes. I know we
can count on their support as we undertake this task.
I ask you and the other Members of this subcommittee to look at
this issue with an open mind and give me a chance to work with you to
find a way to make Forest Service land management decisions in an
effective, efficient and timely manner.
Mr. Chairman, that concludes my statement. I would be happy to
answer any questions from you and the other Members of the
Subcommittee.
______
Mr. Peterson. Now I recognize Chief Thomas for 10 minutes,
then we will question you both afterwards. Welcome.
STATEMENT OF JACK WARD THOMAS, BOONE AND CROCKETT PROFESSOR,
SCHOOL OF FORESTRY, UNIVERSITY OF MONTANA, CHIEF EMERITUS, USDA
FOREST SERVICE
Mr. Thomas. Thank you. I started to say it is good to be
back. But thank you.
The Forest Service and the communities it is part of are at
a crossroads. The present state of affairs is a sad one and in
the long term will prove intolerable. I don't know how it came
to be. What can we do about the present state of affairs?
There are simply too many applicable laws with their
pursuant regulations that don't mesh well or at all, and they
seem to be meshing less and less well as time and circumstances
change.
When I came into the chief's job, my political overseers
assured me that all of the problems inherent in simultaneous
compliance were merely the fact that the previous--that my
predecessors had just not been willing to do it.
By the time I left the job, I knew that there were
intractable roadblocks to management related to laws and
regulation and the conflicts pursuant to those laws--legal
interpretation and so on. However, if I examine every one of
those laws in isolation, I daresay I can't find a one with
which I disagree. Not a single one. But when they are
considered in totality and the array of empowered agencies who
wrote the regulations to achieve the objectives of the law and
not coincidentally maximize the discretion and power of the
drafting agencies, things get a little tough.
Then consider that the laws are applied by an array of
departments and agencies dealing with various Subcommittees and
Committees in the Senate and the House. Administrations come
and go every 4 to 8 years. In the case of the land management
agencies, this adds up to a disaster for isolated affected
communities waiting for a time and place to happen as
significant land management actions on the Federal estate grind
to a halt.
There are two ways to judge ethical correctness of human
endeavor. The first, which described Federal land management,
is a teleological wherein the moral value of an action is the
function of its consequences. I learned that now that I am a
college professor; the ends justify the means. The second,
which describes the present circumstance, is the deontological
wherein the behavior is judged right or wrong according to its
nature, regardless of outcome. In other words, the process is
everything and the end result is insignificant.
If process is paramount and the outcome of little
consequence, the likely result is paralysis analysis. And that
is where we stand today.
The Forest Service, over decades of effort, carefully
constructed the three-legged stool on which to stand to do its
work. The National Forest Management Act--or the Multiple Use
Sustained Yield Act, which was a modification of the Organic
Act, mandated what we would do: water, timber, recreation, fish
and wildlife and range management.
The purpose of the Forest and Rangeland Renewable Resources
Planning Act was to allow the Forest Service to carry out
periodic assessments of conditions of natural resources, but
particularly what the Forest Service opportunities were. To be
perfectly blunt about it, it was an attempt to point out to the
Congress in an irresistible fashion what should be funded.
Thirdly, it sought to mandate to develop comprehensive
plans. Now we had a three-legged stool, a master stroke--what
to do, how to do it, how to fund it. Then, slowly, the stool
wobbled and collapsed under the stresses of compliance with
other subsequent laws and shifts in public perception and
demand.
Multiuse Sustained Yield Act collapsed as more and more
land was zoned for special purposes: wilderness, wild and
scenic rivers, national recreation areas, reserves of various
kinds, habitat for threatened and endangered species, municipal
watersheds, habitat for featured species, protection of
biodiversity, protection of aesthetic values, protection of
rare and special stands such as old growth, roadless areas and
others.
And then when multiple-use demands were applied to the land
that was left unzoned, the cost of meeting the process
requirements of the National Environmental Policy Act and
regulations issued pursuant to the National Forest Management
Act proved to be so high that instituting any management action
approached or exceeded the economic break-even point. Costs
associated with appeals and court cases produced costs that
exceeded benefits. Not only was multiple use dying from a
thousand cuts, but any concept of stability related to
predictability of resource output vanished.
Leg 2, the RPA failed to provide any significant leverage
over the budget process.
Leg 3, the National Forest Management Act failed to achieve
its objectives. The public could not be persuaded that even-
aged timber management--that is, clear-cutting--was an
acceptable broad-scale practice. And forest-by-forest planting
took much, much longer than anticipated and cost much, much
more than forecast. Further, the process, which was assumed
would engender public trust and consensus, indeed produced
polarization. In fact, the process birthed a new industry--the
conflict industry. It has prospered on a diet of conflict,
division, and consternation.
I don't believe that we have executed a single national
forest plan as executed as planned. Why? New information comes
to bear faster than the process can absorb it, and abrupt
alterations in plans were required and species were declared to
be threatened or endangered.
Further, regulatory agencies now have veto power over
management action within areas determined by them to be
critical habitat for threatened species. After a few years of
such changes, there is quite commonly no longer any semblance
of agreement between the original land use plan and the ongoing
activity.
The regulations issued pursuant to the National Forest
Management Act, which early on were demonstrated to be
seriously flawed in terms of technical capability of
achievement in the budget required for execution, have remained
in place for 30 years. There was an attempt that those would be
easily modified under the idea of adaptive management. That has
proven to be a dream.
New regulations contained requirements that have been
suggested are, in my opinion, technically impossible to
achieve, and are so expensive that they would never be funded.
The philosophy seems to have been one of require it and they
will fund. That didn't happen. As another Chief emeritus
observed, the Forest Service needed a life jacket and was
handed an anvil.
Now we are engaged in a new round of forest planning. While
the question of the planning regulations remains up in the air,
at present it seems unlikely that after spending additional
hundreds of millions of dollars and expending hundreds of
thousands of hours of the time of planners, interested public
and the conflict industry, that very much will change.
You might consider this definition of insanity: Doing the
same thing over and over and expecting to get a different
result. If the new round of forest planning proceeds under the
old regulations, although new ones are on the table and no
changes are made, why would we expect a different outcome in
terms of active management program?
There may be possible ways out of this impasse. I will
suggest three. The first is the concept of a public land law
review commission that can be brought out of history and dusted
off. The last effort in 1969 came up with nothing but the
conclusion that things were screwed up. That was before the
onslaught of environmental legislation of the 1970's.
Option 1. That is, it maybe time to try that again. But the
report should be in the form of alternative legislative
packages for consideration and possible action. Uncoordinated
piecemeal amendments of individual pieces of present
legislation, if possible, would likely produce even more
confusion.
The second is the regulations. The devil is in the
regulations. They were not promulgated with any discernible
evidence of their fitting together with other regulations or
with any consideration of the impact of their enforcement on
other agencies and their missions. However, the administration
has authority and responsibility and capability to revise
regulations. There could be a czar of regulations to
simultaneously revise all the agency regulations, with the aim
of coordination, simplification, and efficiency of public land
management.
The last one is for people who live in communities
involving national forests and are not content with the current
state of affairs to exert some level of control over their own
destinies. Their war cry can be taken from the old movie,
Network, in which the central character became fed up with the
status quo and began to scream, ``I am mad as hell and I am not
going to take it anymore,'' and others took up the cry.
Benjamin Franklin's observation, made on the occasion of
the signing of the Declaration of Independence, has some
applicability here. He said, ``We must always hang together, or
assuredly we will hang separately.'' and I think that is what
people who are interested in local collaboration have in mind.
Personnel of the Forest Service are beginning a new round
of planning. Believe me, they are as distressed about the
current state of affairs as any other member in their
community. They are good and dedicated civil servants; the
vast, vast majority are good and caring people, charged with
the care and tending of a most remarkable legacy that resides
in the ownership of all of the people of the United States.
They signed up to be something bigger, part of something bigger
than any individual. They truly want to care for the land and
serve people.
In this next round of planning they will serve more as
facilitators than purveyors of a predetermined course of
action. That is going to be a little messier than in the past,
but I hope it will be much less drawn out. If the process draws
out too long, the initial participants will drop out and leave
the playing field to the conflict industry.
Decisions are made by those who show up, and the outcomes
are determined by the majority or the minority that cares
deeply. We see some wisdom there. In the end, it may be
desirable to have the outcome a collaborative effort, blessed
in law.
Why might this go-around be different than the last?
Because things have changed. The eco-warriors have won the
argument, capitalizing on environmental laws passed in the
1970's, the collapse of timber extraction during the Reagan-
Bush administration, and 8 years of the Clinton-Gore
administration's simpatico with the environmental constituency.
Fierce in battle, eco-warriors have been unable to come to
grips with the consequences of victory, and they are now
reduced to wandering about the old battlefield bayoneting the
wounded. Their counterparts from the resource extraction
community, likewise, cannot come to terms with the defeat and
hold ghost dances to bring back the good old days when they
were undisputed kings of the West.
It is time for a Marshal Plan, wherein the victors realize
that the best means of maintaining their gains is by fostering
a new spirit of cooperation and appreciation of the desirable
aspects of western culture and a development and institution of
a just peace.
Just maybe there has been a change in attitude that
requires more gentility, courtesy, and respect in the process
of making decisions. Those involved must unclench their first,
make them into open hands; those open hands are extended to
their neighbors.
Reflect on that symbolism: Open hand, open mind, open
heart. In that simple gesture lies the best opportunity to
bolster the well-being of involved communities. Perhaps now,
after two decades of acrimony and frustration, weakened and
fractured communities are ready to heal the age-old plea, first
made centuries ago in the throes of conflict: Come, let us
reason together. That recurrent refrain, without doubt, is the
best wisdom in all. Will that ensure success? Maybe. Maybe not.
That is, as well, for communities to reflect on the line often
quoted by General George Washington during the American
Revolution, as possibilities of success and defeat were in the
balance: ``we cannot assure success but we can deserve it.''
thank you.
[The prepared statement of Mr. Thomas follows:]
Statement of Jack Ward Thomas, Chief Emeritus, U.S. Forest Service and
Boone and Crockett Professor of Wildlife Conservation, School of
Forestry, University of Montana, Missoula, Montana
Members of the committee, thank you for inviting me to be here
today.
AT THE CROSSROADS
The Forest Service (FS) and the communities of which they are part
find themselves at a crossroads. My purpose is to make observations and
suggestions, based on hard-earned 44 years of natural resources
experience, for possible modifications in the status quo that might
smooth the transition of FS associated communities into the 21st
century.
A SAD STATE OF AFFAIRS
The present state of affairs is, in my opinion, a sad one--that, in
the long run, will prove intolerable. How did this situation come to
be? What can or should be done to alter the present state of affairs?
TOO MANY LAWS AND TOO LITTLE COMMON SENSE
There are too many applicable laws with their pursuant regulations
which do not mesh well--or at all--and these laws and regulations seem
to be meshing less and less well as time passes and circumstances
change.
When I entered the Chief's job, my political overseers assured me
that there were no insurmountable problems inherent in the simultaneous
compliance with all applicable laws and regulations while carrying out
the agenda of the Administration. The accumulating frustrations from
the past were blamed on the unwillingness of prior Administrations to
comply with applicable laws. I thought that was wrong. But, what did I
know?
By the time I left the job, I knew, for certain, that there were
roadblocks to management that were intractable and related to laws and
regulations. Included are conflicts between laws; regulations issued
pursuant to those laws; legal interpretations (i.e., case law); ever
changing budgets; power struggles between agencies; warring
constituencies; internal strife within agencies; continuing declaration
of threatened or endangered species; and political maneuvers to satisfy
one constituency or another.
If we were to examine each of those myriad laws in isolation, I
dare say that we would not find even one with which to disagree--not
one. Then, consider those laws in their totality and the array of
empowered agencies who wrote the regulations pursuant to the separate
laws. Now consider that the regulations were developed to assure
achievement of the objectives of the law and, not coincidentally,
maximize the discretion and power of the agency drafting the
regulations.
Then, consider that the laws are applied and/or enforced by an
array of Departments (and Agencies embedded within those Departments).
Each entity has its own cadre of skilled and accomplished personnel
dedicated to the achievement of their individual unit's missions--and
the simultaneous enhancement of their agency's power and authority. If
that were not enough, the situation is further complicated by the
structure of Committees and Sub-Committees in the Senate and House,
who, likewise, fiercely guard ``their'' agencies and programs. Therein
lies maximization of individual and collective power of the members of
Congress.
On top of that, Administrations come and go at four to eight year
intervals. They, or their minions, set the policies. Departments and
Agencies, in turn, execute those policies through the budget,
administrative actions, swaying Congress, and marshalling public
opinion and political actions.
In the case of land management agencies, this adds up to a disaster
for affected communities waiting for a time and place to occur. This
disaster is upon us as significant land management actions on the
Federal estate grind to a halt.
TWO APPROACHES TO ETHICAL CORRECTNESS
There are two approaches to judging the ethical correctness of
outcomes of human endeavor. The first, which described federal land
management of the past, is the teleological wherein the moral value of
an action is a function of its consequences--i.e., the ends justify the
means. The second, which describes the present circumstance, is the
deontological wherein an act or behavior is judged right or wrong
according to its nature--regardless of outcome. I.e., the process is
everything and the end result insignificant.
If process is paramount and the outcome of little consequence, the
likely result is ``analysis paralysis'' wherein ongoing processes lead
to little or no management action. That is where we are today.
THE THREE-LEGGED STOOL THAT SUPPORTS THE FS--LEG 1
The FS, over decades of effort, carefully constructed a three-
legged stool upon which to stand to do its work.
The Organic Act of 1897, which defined the purposes of the forest
reserves (the national forests after 1905), states: ``No national
forest shall be established except to improve and protect the forests
within the boundaries, or for the purpose of securing favorable
conditions of water flows, and to furnish a continuous supply of
timber''.'' When the FS was increasingly challenged by transfers of
national forests to national parks, it sought a broadened mission
through the Multiple-Use Sustained Yield Act of 1960 (MUSY). MUSY was
an amendment to the Organic Act, which mandated the addition of
recreation, fish and wildlife, and range management to the agency's
portfolio.
THE THREE-LEGGED STOOL--LEG 2
The purpose of the Forest and Rangeland Renewable Resources
Planning Act of 1974 (RPA) was to attain the authority and
responsibility for the FS to carry out periodic assessments of the
conditions of the renewable natural resources of the United States.
But, particular attention was directed to assessment of the resources
of the national forests and proposed programs of the FS to manage those
resources for the benefit of the American people. Further, programs
were to be developed and assessed on which to base FS actions to assist
in private forest land management and a research organization to serve
the needs of both the federal and private forest sectors. These
assessments were to be produced every five years. The clear intent was
to mandate FS programs and provide a means to influence budgets.
THE THREE-LEGGED STOOL--LEG 3
The FS now desired to develop comprehensive plans for each of the
national forests. This led to the development and passage of the
National Forest Management Act of 1976 (NFMA). After World War II, the
FS increasingly relied on a program of even-aged timber management in
spite of the instructions in the Organic Act of 1897 to cut only
individually marked trees. A landmark judicial decision in 1975, the
``Monongahela Decision,'' brought clear-cutting to a halt. The reaction
was the passage of the NFMA which defined provisions under which clear-
cutting could proceed and, more significantly, provided the FS with a
mandate for planning management for each national forest.
A MASTER STROKE THAT MISSED THE MARK
There it was--a sturdy stool with three legs--what to do, how to do
it, and how to fund needed action. By any measure it seemed a
masterstroke, a reflection of bureaucratic skill and ability to
maneuver through the labyrinth of the political process.
THE THREE-LEGGED STOOL IN COLLAPSE
Then, slowly but surely, the stool wobbled and collapsed under the
stresses of compliance with subsequent laws and shifts in public
perceptions and demands. Let us examine that collapse--one leg at a
time.
Leg 1 -- MUSY collapsed as more and more land was zoned for special
purposes--Wilderness, Wild and Scenic Rivers, National Recreation
Areas, and reserves of various kinds (riparian protection zones,
habitat for threatened or endangered species, municipal watersheds,
habitat for featured species, protection of biodiversity, protection of
aesthetic values, protection of rare and special stands such as old-
growth, roadless areas, and others). Then, when multiple-use demands
were applied to land that was left, the costs of meeting process
requirements of the National Environmental Policy Act (NEPA) and
regulations issued pursuant to the NFMA proved to be so high that
instituting any management action approached or exceeded the economic
break-even point. Costs associated with appeals and court cases more
and more often produced costs that exceeded benefits. Not only was
multiple-use essentially dead, or at least badly wounded, long-standing
concepts of ``sustainability'' having any relationship to
predictability of resource outputs vanished.
Leg 2 -- The RPA failed to provide the FS any significant leverage
over the result of the outcome of the budget process. Neither the
Administration (operating through the Office of Management and Budget)
nor the Appropriations Committees in the House and Senate proved
willing to accept the ``guidance'' or embrace the ``opportunities''
that emerged from RPA assessments.
Leg 3 -- The NFMA also failed to achieve its objectives. The public
could not be persuaded that even-aged timber management (i.e., clear-
cutting) was an acceptable broad-scale practice. And, the national
forest by national forest planning took much longer than anticipated
and cost much more than forecast. Further, the process--which was
assumed would engender public trust and bring about consensus--instead
produced polarization and increased questioning of the agency's
motivations. In fact, the agonizing process that evolved gave birth to
a new industry--the conflict industry. That new industry, composed of
coalitions of hard-core environmentalists and extracting industries,
has been succored on the controversy. The conflict industry has
prospered on a diet of conflict, division, and consternation.
I do not believe that any single national forest plan has been
executed as planned. Why? New information came to bear faster than the
process could absorb it. Abrupt alterations in land management plans
were required when species were declared to be threatened or
endangered, and which, in turn, forced the formulation of recovery
plans by the regulatory agency(s) that were imposed over the top of
extant plans.
This placed regulatory agencies such as the Fish and Wildlife
Service and the National Marine Fisheries Service in the position of
developing ``recovery plans'' for species for which they declared to be
threatened or endangered--two authorities that seem to have enormous
power over public land management. Further, they have veto power over
management action proposed by land management agencies within areas
determined, by them, to be critical habitat and/or not in keeping with
a recovery plan. And, there has been--and likely will continue to be--a
continuous drumbeat of new additions to the list of those species of
plants and animals determined by the regulatory agencies to be
threatened or endangered. With each addition of such species that occur
on national forests, there is a resultant change of plans--oftentimes,
dramatic changes.
Added to this ongoing turmoil is the continued failure of budgets
to match the required actions spelled out in the plans in either their
original or evolved forms. The overall result has been plans that
change yearly and are so executed to comply with changing budgets
without altered analysis. After a few years of such changes, there is
quite commonly no longer any semblance of agreement between the
original land-use plans and on-going activities.
The regulations issued pursuant to the NFMA which, early on, were
demonstrated to be seriously flawed in terms of both technical
capability of achievement and budgets required for execution, have
remained in place for nearly 30 years despite repeated and very
expensive attempts at increasingly needed revisions. The planning
regulations, which were originally intended to be frequently and rather
effortlessly amended to reflect increased scientific understanding and
experience under the concept of ``adaptive management,'' have evolved
into a political icon.
New regulations, based on recommendations of a committee of
scientists, emerged at the end of the Clinton era and were immediately
rolled back for further consideration by the incoming Bush
Administration. The basic sticking point continues to be that the
regulations--both the old and those just pulled back for more
assessment--likely stretch the mandate implied in the authorizing
legislation.
The new regulations contain requirements that are, in my opinion,
either technically impossible to achieve or so expensive that they
would never be funded. The philosophy in their development seems to
have become one of ``require it and they will fund'' rather than face
cessation of management activities. That did not happen. As another
Chief Emeritus observed, ``The FS needed a life jacket and they were
handed an anvil.'' It is critical, if any production of resources is
expected from the national forests, that the regulations be more
flexible. And, clearly, development of policy is best left to the
Administration and legislation is best left to the Legislative Branch.
Such have no place in regulations.
A NEW ROUND OF FOREST PLANNING
Yet, the FS is now embarked on a new round of planning--national
forest by national forest--while the question of new planning
regulation remains ``up in the air.'' It seems unlikely that, after
spending additional billions of dollars and expending hundreds of
thousands of hours of the time of planners, interested publics, and the
conflict industry that much will change. It is well, at this point, to
consider this definition of insanity: ``Insanity can be defined as
doing the same thing over and over and expecting to get a different
result.'' That, I think, is both true and something to be avoided. If
the new round of forest planning proceeds, and no changes are made,
there is no reason to expect a different outcome in terms of an active
management program. That could be called insanity.
The problems described so far are magnified by the simultaneous
application of other laws--most notably the National Environmental
Policy Act ``which, in its present highly evolved form, adds greatly to
the burden and costs of producing voluminous, highly technical, and
complex ``bullet proof'' assessments (I don't think that is what
Congress had in mind). The Endangered Species Act (ESA), outside of
bringing additional agencies into the land management equation, is
actually less of a problem. The regulations (both current and those
proposed by the Clinton Administration) issued pursuant to the NFMA are
even more demanding than the ESA in requiring the maintenance of
``viable populations of all native and desirable non-native species
well-distributed within the planning area.'' It doesn't get any more
demanding than that. Remember, the Court's shutdown of timber cutting
on Federal lands in the Pacific Northwest was predicated on non-
compliance with the FS's planning regulations, not on violations of the
ESA.
POSSIBLE WAYS OUT OF THE IMPASSE--A PUBLIC LAND LAW REVIEW
I think there may be three possible ways out of the current
impasse. First, the concept of a Public Land Law Review Commission
could be brought out of limbo and dusted off. The last effort, in 1969,
was directed by a collection of big names that, basically, came up with
nothing except the conclusion that things were badly screwed up. And,
that, I remind you, was before the onslaught of environmental
legislation of the 1970's.
OPTION 1
But, now that federal land management is dramatically and even more
seriously convoluted and becoming increasingly dysfunctional, it may be
time to try that idea again. But, this time, the Commission should be
composed of top level experienced natural resources professionals and
legal assistants with the mission--to be accomplished within a time
certain--of producing a report in the form of alternative legislative
packages to be presented to Congress and the Administration for
consideration and possible action. Uncoordinated piecemeal amendments
of individual pieces of applicable legislation, if that were even
possible, will likely produce even more confusion.
But, likely, neither the Congress nor the Administration has the
stomach for a new Public Land Law Review Commission. Why? Examine the
purpose of each of the laws in question. Who could disagree with the
purpose of any one of those laws? And, clearly, no one of the laws is
the culprit. Problems of compliance with myriad laws in public land
management emerges from their interactions and in the tangle of
multiple agencies and their mandates and authorities involved. And,
each law has its champions who have hard-won experience in using those
laws to achieve their individual objectives and in the Agencies who
derive their powers--and even their reasons for existence--therefrom.
POSSIBLE WAYS OUT OF THE IMPASSE--REVISION OF REGULATIONS
The ``devil'' is, oftentimes, in the details, or, in this case, in
the regulations. Remember, the various regulations were developed by
different agencies to afford them the best chance to carry out their
missions as described by the authorizing laws and, simultaneously, to
enhance their power and flexibility. These regulations were not
promulgated with any discernable evidence of their fitting together
with other regulations, or with any consideration of the impact of
their enforcement on other agencies and their missions. Remember, some
regulations trump other regulations and agency actions--and therein
lies real bureaucratic power and power for the constituencies of those
agencies.
OPTION 2
However, the Administration has authority, responsibility, and
capability to revise regulations. The Administration could establish a
``czar of regulations'' related to public land management and task that
person, and the heads of all involved agencies, to simultaneously
revise agency regulations with the aim of coordination, simplification,
and efficiency of public land management. This could be ordered
achieved within a time certain with only the czar having authority to
grant any extension of time lines.
This course of action is relatively more feasible than simultaneous
revision of laws, as authority rests with one person--the President of
the United States. Will it happen? Who knows? The Administration would
have to think it over - and they have other things on their minds at
the moment. The management of the public lands is not, at least
discernibly, high on the Administration's agenda.
POSSIBLE WAYS OUT OF THE IMPASSE--COLLABORATION (OPTION 3)
The third option, to a limited degree, is for people who live in
communities involving national forests and are not content with the
current state of affairs to exert some level of control over their
destinies. Their war cry could be taken from the old movie Network, in
which the central character became fed up with the status quo and began
to scream, ``I'm mad as hell and I'm not going to take it anymore!''
Others took up the cry.
Being angry and feeling powerless make a bad combination that is
hard on both digestive tracts and the human spirit. It is a mood that
no vibrant community can endure for long without some deterioration.
But, such can--if appropriately channeled--provide stimulus to reach
out to others in the hope of producing something better.
Barring the revision of laws and/or regulations--which simply
``ain't gonna happen'' anytime soon--there is another approach to the
public land management impasse that shows promise. That approach
involves releasing fists into open hands and extending those hands to
join with another and another and, then, yet another.
That reaching out takes place within is what some call a
``community of place'' which involves a defined landscape and the
people therein. The place will be made up of many land classifications
and ownerships (in this discussion, National Forests and what happens
in those forests are of primary significance). The people in that
community will share several things in common. First, they live there.
Second, the place is, at least emotionally and spiritually, more theirs
than those who live far away.
HANGING TOGETHER OR SEPARATELY
Benjamin Franklin's observation, made on the occasion of the
signing of the Declaration of Independence, has some applicability in
this discussion. ``We must all hang together, or assuredly, we shall
all hang separately.'' Our communities prosper and suffer collectively.
No one person can remain untouched by significant actions that touch
his or her community(s) at large.
PLANNING BEGINS--INVOLVEMENT OF FS PERSONNEL
Personnel of the National Forest system are beginning a new round
of planning to guide management for the next decade. Believe me, most
FS folks are as distressed at the current state of affairs as other
members of the community. They are good and dedicated civil servants
``the vast majority are good and caring people--charged with the care
and tending of a most remarkable legacy of land that resides in the
ownership of all the people of the United States. Most signed up to be
part of something bigger than any individual. They truly want to ``Care
for the Land and Serve People.'' And, significantly, they know that
word has come down from their current and past two Chiefs that
``collaboration'' with communities of interest shows promise and
deserves support. They, by definition, are critical components of the
communities where they live and work. And, they want to be part of and
partners in those communities.
THE FOREST SERVICE AS FACILITATOR
I hope, and think, that in this round of planning FS professionals
will serve more as facilitators of the process than as purveyors of
predetermined courses of action. Such will be something of a new
approach and, quite likely, a bit ``messier'' than that which has gone
before--but with more acceptable results.
I hope the process will be much less drawn out than last time
around. If the process draws out too long, most of the initial
participants will drop out and leave the playing field to a few
dedicated individuals. Most of those present toward at the end of the
struggle are either truly committed with time and patience aplenty or
zealots or ``hired guns'' from the ranks of the conflict industry.
UNSPOKEN RULES OF THE FOREST PLANNING GAME
Two facts essential to our consideration are: ``Decisions are made
by those who show up'' and ``In a democracy, outcomes are determined by
the majority of the minority who cares deeply about the issue in
question.'' We see sound wisdom here.
Knowing this, old hands in the game, particularly those who have
roots in the conflict industry, come to the game both experienced and
well prepared. They know that the longer the process drags out, the
more voluminous and less intelligible the written assessments become,
the more revisions made, the more complex the process, the more likely
that the playing field will be left at the critical culmination to the
zealots and hired guns.
The lesson to be learned is this: set reasonable, but firm,
deadlines. Do good thorough work based on experience from the last go-
around in planning. Meet the deadlines and do not grant extensions
except for the most valid of reasons. Routine granting of extensions
and requests for more and more assessment and more and more review and
extended opportunities for public comment may seem an easy means of
political mollification. Such is not the case. Extensions are expensive
in both time and money and in the public's confidence in the process.
And, delay rarely makes much difference in either knowledge gained or
the conclusions reached. If the desire is to turn the process--and
ultimately the end result--over to the folks from the conflict industry
all that is required is to allow the process to drag out.
In the end, it may be desirable to have the outcome of your
collaborative efforts blessed in law. There are precedents for such
actions--even involving required budgets. At the very least, the
blessings of political leaders are helpful, for, as Former Speaker of
the House Tip O'Neil observed, ``all things are political and all
politics are local.'' That too is sound wisdom.
AND, WHY SHOULD THINGS BE DIFFERENT THIS TIME?
Why might this go-around with forest planning be different that the
last? Because things have changed and, I don't believe, there is any
going back. Twenty years ago, there was a pitched battle going on
between warriors of the environmental persuasion and the old-line
extractors of natural resources over the future of public lands in the
West. The environmental warriors won, capitalizing on the spate of
environmental laws passed in the 1970s, the collapse of timber
extraction during the Reagan/Bush administration, and the eight years
of a Clinton/Gore Administration sympatico to their environmental
constituencies.
Fierce in battle, many of the eco-warriors have been unable to come
to grips with the consequences of victory and are now reduced to
wandering about the old battlefields bayoneting the wounded. Their
counterparts from the resource extraction community, likewise, cannot
come to terms with defeat and hold ``ghost dances'' to bring back the
good old days when they were undisputed Kings of the West.
In the meantime, other things changed. The population in countries
near the national forests of the West have grown at twice the national
rate and has not become philosophically in synchronization with the old
days and old ways. The economic opportunities so dramatically exploited
by the newcomers were not based on resource extraction and secondary
manufacture but on other sources of jobs and economic opportunities. In
addition, many of these newcomers were attracted by the aesthetics of
the West, its quality of life, and its inherent life style.
The ``old west,'' and its component land management and regulatory
agencies reluctantly moved into the new age nudged by one court loss
after another for failure to comply with the environmental laws of the
60s and 70s. The people whose ways of life were changing, and not by
their choice, were moved to resistance--sometimes quite dramatically
expressed. These acts of resistance made the news--for a few days--but
changed nothing. They demonstrated, blustered and threatened, but
frightened very few and not for very long.
In the aftermath of victory by ``the greens'' and the public
acceptance of change that was wrought, it is past time for a ``Marshall
Plan,'' wherein the victors realize that the best means of maintaining
their gains is by fostering a new spirit of cooperation, an
appreciation of the desirable aspects of western culture, and the
development of an institution of a ``just peace.'' The general body
politic is wearying of the continued bayonetting of the wounded. They,
increasingly, hunger for a just peace. Some scholars believe that this
can only be achieved by stepping back from the ``one size fits all''
approach. Over the long haul fostering ``local'' or regional solutions
to suit local or regional conditions--economic, social, and
ecological--is likely best. Many politicians, perhaps in desperation,
agree that this is an acceptable and needed change.
And, with the disaster of September 11th, a new national mood is
apt to persist to some degree for some time into the future. That mood
is one of national unity with a focus on the general welfare and a
renewed trust of government and its institutions. For example, within
ten days of that event, the President of the Sierra Club announced a
change in strategy away from personal attacks and inflammatory
rhetoric. Part of that statement was ``Now is the time for rallying
together as a nation; the public will judge very harshly any groups
whom they view as violating the need for unity.
Just maybe, there has been a change in attitude that requires more
gentility, courtesy, and respect in the process of making decisions in
land-use planning and management.
Over the past decade, the Forest Service has moved progressively,
toward a new management paradigm known as ``ecosystem management.'' In
that approach there are several underlying principles: broader and more
appropriate scales of landscapes considered; the inclusion of more
variables including ecological, economic, legal, and social; and the
full consideration of people's needs and desires. Implicit in that
approach is the concept of collaboration within appropriate communities
of interest.
This round of forest planning is the best extant chance to take a
step--even a baby step--in that direction. I say, seize the
opportunity.
COMMUNITY-FRIENDLY RESULTS? IT'S UP TO YOU
I believe the results from these renewed planning efforts can be
more, much more, community compatible'' or ``community friendly'' than
what emerged in the last go-around. The key to that result is the
effective participation of the community itself.
Those involved must unclench their fists, make them into open
hands. Extend those hands to your neighbors. Reflect on the symbolism--
open hand, open mind, open heart. In that simple gesture lies the best
extant opportunity to bolster the well being of involved communities.
Perhaps now, after two decades of acrimony and frustration,
weakened and fractured communities are ready to heed the age-old plea
made in the throes of discord-- Come, let us reason together.'' That
recurrent refrain, without doubt, is the best wisdom of all.
Will that insure success? Perhaps. Perhaps not. It is well to
reflect on a line often quoted by General George Washington during the
American Revolution when was torn between possibilities of success and
defeat, ``We cannot assure success, but we can deserve it.
______
Mr. Peterson. Thank you, Chief Thomas. Tell me if my
perception is wrong. It appears to me, and I have been involved
with local government--State government and now Washington--
but I have never seen an agency so beset with appeals and
lawsuits. I mean, it seems like no matter what you do, somebody
is suing you on one side or the other.
Is there greater ability to sue in the layer of law and
regulation you are living with than most other agencies? Is
there an expanded access to the courts here?
Mr. Bosworth. I will take the first shot at this. There are
some differences between our agency and some of the others
regarding that. One, for example, is that, I believe, we are
the only agency that has a legislated appeal process.
Now, that doesn't answer the litigation side of it. But,
with that appeal process, we have some very long-term kinds of
steps that we have to go through.
So there is a tendency, then, for some people that feel
like if they can delay a project, then they will in the end
have been successful, because the project may not go forward if
it is delayed or there may be new information to be considered
or whatever.
So it does make us a little more vulnerable, I think, to
those kinds of--people with those kinds of motives.
Mr. Peterson. Well, I was involved in an endangered species
suit that stopped some action on the Allegheny Forest. When I
sat down with Fish and Wildlife Service, their biologist said
that in her opinion, 75 to 80 percent of the suits that were
brought had nothing to do with the endangered species but was
to stop some action on the forest that their group didn't want
to happen. So they used the breadth and depth of the Endangered
Species Act to sue, which stopped everything.
Do you think that is an accurate description? This was a
person who has to write the biological opinion and to prove
your plan in the end. And that was just her comment to me. And
she wasn't taking sides; she just said, ``75 to 80 percent of
the suits I deal with are not about the endangered species.'' .
Mr. Bosworth. I don't know if that is accurate or not
accurate. It is hard for me to say why somebody might be
appealing or filing a lawsuit. And I know that there are people
out there that have a strong concern for those endangered
species. We have a strong concern for those endangered species.
So I don't want to sit here and try to imply that people's
motives are not honorable, although I do believe that some of
the appeals that we get and some of the litigation that we get,
siting endangered species, that that may be our Achilles heel
in terms of the project itself. And somebody might feel like
they have the best chance of winning by appealing or litigating
over endangered species.
But, again, I don't really want to try to imply that
people's intentions aren't honorable that are setting out to
ask to have our decisions reviewed.
Mr. Peterson. Well, any area of our life that gets too
complicated with the law and lawsuits, I mean it just goes
downhill--whether it is health care, people die, we litigate in
the courts. The courts are not a timely process.
Jack, would you have a comment on it?
Mr. Thomas. I don't think it is a matter of reflecting on
anybody's honor. It is if you have an objective in mind and you
sit down with an attorney, and my objective is such and such,
the attorney comes forward and says OK, here are our options of
going forward to achieve that objective.
So I am not even sure that there is any honor involved. It
is a matter of saying it could be that, no, I don't want that
action to take place; and I go to my attorney and I say, how
would I go about this under the law? And he will bring forth--
if he is a good attorney, he will bring forth every mechanism
under the law that is applicable to the case and exercise it.
That is just the way the game is played.
Mr. Peterson. But I don't know of another government
agency--I have been in government 30-some years, plus business,
26 years. I don't know of another agency that deals with the
legal maneuvers that you deal with, I mean, on a regular basis.
Everything you do, somebody is suing you on either side, it
seems to me to me like.
Mr. Thomas. Well, a large part of that has to do with the
land base and the fact that we are an active management agency.
We do things and it changes things. And if we don't do
something, it has an effect. If we do something, it has an
effect. And we control an enormous amount of very high-quality
land. Why would you want to sue somebody over 50,000 acres of
desert? Though that sometimes happens. We get as much or more
recreational use than the National Parks Service, beautiful
wonderful country. It is in multiple use. We have had grazing
for a long time. We have had timber production. We have got
incredible wildlife habitats.
Now, one of the things to keep in mind, the Forest Service
has a huge proportion, or a large proportion, of threatened
species. That is not because they did a bad job. That is
because that is where the good habitat is. That is, in many
cases, because of the way it has been treated and preserved. So
I think those things add up to make it vulnerable.
Mr. Peterson. I guess I am out of time. Ranking Member Mr.
Inslee for 5 minutes of questions.
Mr. Inslee. Thank you, gentlemen. I am sorry I was late to
hear your testimony. I want to thank Mr. Thomas for your
previous great service to the country. I know that the
gentleman next to you hopes that he can be--and some days is
looking forward to emeritus status someday as well, I am sure.
Mr. Thomas. He kept his house in my hometown.
Mr. Inslee. We would like to make those days fewer than
greater, I suppose. This subject, you know, is just ripe for
philosophical decision for days and hours and hours.
But let me just ask you a general question. Do you think
the existence of the multiple environmental laws that have been
enacted, the ESA, NEPA, even though they have caused
substantial debate, concern, litigation as a whole, have
enhanced the functioning and value of those public lands? That
is just a general question.
Mr. Bosworth. First I would say that I think that,
individually, the environmental laws are very good and have
done a lot to help preserve the high-quality environment. The
difficulty gets, really in my opinion, more into the
regulations and the implementation of those environmental laws
and the interaction and the redundancies. And to me, it is as
much as an effectiveness or an efficiency aspect, the huge
amount of time and dollars that go into process so that so
little comes out at the end, that in some cases doesn't add
very much value to the decisions, but just takes a lot of time.
So I don't have--so I don't look at any of these laws
individually and say these are bad laws. I think they are good
laws.
Mr. Inslee. Mr. Thomas.
Mr. Thomas. I would concur. I said that in my testimony.
When I look at each one of those laws individually, I can't see
a single one of them that I would want to throw out. I think we
merely need to regroup now and say, how do we get from A to B
in a bit more efficient manner. We have had our focus on these
things. We have learned a lot about these things. One of them
that I think would be very helpful--and I remember saying this
in front of President Clinton at his forest summit in Portland
a long time ago, and I was not the Chief-- and I said, any way
you cut it, biodiversity and its maintenance and retention has
become the overriding objective of the national forest
management.
I would prefer that if you meant that to be true, that you
say so; or if you didn't mean it to be true, that you should
say so. As a biologist, I can see that as an admirable goal. As
somebody that tried to give some guidance to the Forest
Service, I found it extremely frustrating when it was very
obvious, the way things were coming down, at the same time our
production of goods and services was declining and certain
folks in Congress were beating the living hell out of us on a
continuing basis because of that.
Now that I am out, I can say these sorts of things. You
guys have done a lousy job of telling the Forest Service what
is it you expect from them. Some Congressmen expect this, some
Congressmen expect that. But it has never been made clear you
really buy that; that that much attention and that much risk
avoidance related to the preservation of diversity at the
consequent cost in the production of goods and services is an
OK thing.
If it is, you should say that. If it isn't, you should say,
no, we expect some level of production of goods and services in
keeping with that sensitivity. But right now they are just in a
knot.
Mr. Inslee. Well, we appreciate that assessment that we
have done a lousy job. We just hope Mr. Bosworth doesn't pick
up on that right away in his description. But he will be free
to use that language someday, just maybe not today.
Mr. Thomas. It is my turn now.
Mr. Inslee. Just one more shot.
Mr. Bosworth, there is a proposal to essentially ask the
Under Secretary to make a ruling on--I am trying to recall
where it is. It the Bitterroot surplus issue, that would
essentially, as I understand it, ask the Under Secretary to
make a ruling which would thereby eliminate the public appeals
process. Are you familiar with what I am--.
Mr. Bosworth. Yes.
Mr. Inslee. Are you concerned that that sets a precedent or
generally would do an end run around the appeals service? Is
that something where you think we need efficiency, or should
some of us be concerned about short-circuiting that appeal
route that is now available if the Service made the decision
rather than the Under Secretary?
Mr. Bosworth. Well, first, it isn't without precedent. It
has been done a few times in the past that I am aware of, and
maybe many times. But let me just explain the situation a
little bit and why I sent a letter to the Under Secretary
asking him to do that. We had the fires of 2000. It has been
over a year since the fires were out. We spent a lot of time
and a lot of money doing the environmental analysis and coming
up with a final environmental impact statement for restoration
and some salvage. And we are in a situation where it is very
clear, from both letters and discussions, that it will be
litigated. And it makes sense, with the urgency of getting on
with the restoration work, it makes sense to me to move forward
and move right on into court.
I wouldn't suggest that very often. But I think in a large
project like this, where there has been a huge number of public
meetings, there has been a huge amount of public comment, lots
and lots of analysis, lots of work with people, and, again, a
fairly urgent sense of urgency to get on with that project or
there will be no value left, and we go through another winter
and spring without having some of the restoration work done, as
far as--obliterating roads and replacing some culverts with
larger culverts and some of those kind of things.
We need to get on with it. And that 4- or 5-month period to
go through the appeals doesn't seem like it is going to add
value in the final analysis.
Mr. Inslee. Mr. Chairman, just a follow-up. Couldn't you
allow an emergency action to go forward even though the appeals
follow the action? Don't you have that flexibility? Have you
considered using that instead of just doing away with the
appeals totally?
Mr. Bosworth. We do have--in fact, the regional forester
had requested an exemption from stay. And after I looked at the
merits of the exemption from stay--that was for just a portion
of the project--I determined in my judgment that we should go
ahead and just ask the Under Secretary to do this; not go
through the litigation first on an exemption from stay, because
that would be litigated.
We are told that if we give an exemption from stay, we go
to court on that. Then we go to court on the merits of the
project all by itself.
What I am trying to do on this project is to limit the
delay, the time it is going to take to get on with it. And my
view, again, is that if we are going to go to court, let's get
to court and do that, rather than going through costly lengthy
kinds of processes.
Just an example of another decision made, the choice on the
Northwest Forest Plan, you know, when the Northwest Forest
Plan--the decision there was signed, which normally may be
signed by a regional forester, that was signed by President
Clinton for the same kind of reason. It was time sensitive.
Mr. Inslee. Thank you.
Mr. Peterson. Chief Bosworth, tell us about the current
situation on the Black Hills National Forest and how that fits
into this conversation and the forest plan there.
Mr. Bosworth. In terms of the appeals, in terms of the
project on the Bitterroot and how that compares with the Black
Hills, or are you talking about the forest plan? I am not--.
Mr. Peterson. The forest plan itself.
Mr. Bosworth. Well, OK. You know, the Black Hills forest
plan has been in progress for a long time. When I get into the
discussions about analysis paralysis, to me, the Black Hills is
a good example of a process that has taken us about 10 years
now to do a 15-year forest plan. I mean, does that make sense?
That we would spend 10 years developing a 15-year forest plan?
We have examples in the Tongass Forest in Alaska where we
have spent that same length of time. We have gone through
appeals and the litigation on those, and when we go through
those appeals--let's see, we haven't been litigated on the
Black Hills, but they come through the appeals, and that again
adds on some more time. So we could be--probably by the time we
complete all of the work on the Black Hills, it will probably
have been--maybe 11, 12, 13 years will have gone by trying to
complete a 15-year forest plan.
Mr. Peterson. On health care, there would be a lot of dead
people by the time we had solved the problem. I guess it just
amazes me the appeals and lawsuits that you have to deal with.
I don't know how you do anything.
I mean, I don't know how you get to--because we certainly
have some diverse opinions in the country, and it doesn't seem
like the interest groups can get together and find common
ground. It is like we are going to use every--have the interest
groups in this field just learned how to maximize the use of
the legal system to stop things? I mean, you could stop every
building project if everybody decided to sue. You could stop
almost anything if everybody decided to use the courts, because
you could--with--somebody with lots of money and access to
often free lawyers, I mean, you--.
Mr. Bosworth. Well, let me just say a couple things on
that.
First, the lawsuits that we get and the appeals that we get
in the Forest Service are largely--on our projects are largely,
again, debating national policy. There are differences of
opinion about the implementing of national policy, but they are
done at the local level; and so this whole issue of why do we
get so many appeals and so much litigation, I think is really
again, at the local level, wanting to argue about whether
national policy is right or not. The district ranger of the
Forest Service is merely trying to implement that national
policy, but then it gets debated again at each project. So I
think that is part of it.
I think another part might be the fact that we are a
multiple-use agency, and we haven't--we haven't been able to--I
mean, there are lots of different desires for these very, very
valuable lands. Maybe an answer, in my view, is, we are working
hard to try to collaborate, particularly at the community and
local level, in trying to get people to come to the table. But
there are lots of incentives; there are disincentives, I guess
I would say, for not coming to the table.
If you have a particular viewpoint and you don't have to
sit down and collaborate and work with people because you can
get what you want through litigation or through appeals, then
there is no reason for people to come to the table to try to
solve the problem.
Mr. Peterson. That's right.
Mr. Bosworth. And we need to get people to the table. We
need to find the common ground with people so that we can move
forward, and we will probably never get total consensus on
national policy with national forestlands or on individual
projects, but we should be able to bring a lot of people
together and develop at least some level of consensus. But it
won't happen if there is no incentive to come to the table and
to work.
Mr. Peterson. Chief Thomas, you testified that you thought
the United States Forest Service could issue regulations. You
talked about the layers of regulations, regulations that don't
mesh, and it would take a bold step.
But could--in your opinion, looking back, could you have
issued--had your people write regulations that made things work
better? They wouldn't have been without controversy, but--.
Mr. Thomas. I am certain that we could, but it wouldn't
have solved everything, because it would have only been the
regulations in the Forest Service. But one of them, for
example, just as an instance--and I will tell you where it came
from.
Early on in the planning process, a plan came in from the
Wallowa-Whitman National Forest, and they landed, I believe, on
lynx, and they had never seen one there. So they turned around
and said, we will take care of that up in the wilderness. So
internal Forest Service staff suggested a clause that would get
across the point of what planning would be about, and they
wrote this down. It says, the objective is viable populations
of all native and desirable nonnative berms, well distributed
within the planning area.
At that time viability didn't have the same meaning in
science that it has today, and they merely told--meant to tell
them to think about it. That is more constraining than the
Endangered Species Act. In fact, the entire issue in the
Pacific Northwest that blew up all over spotted owls was on
that clause, not on the Endangered Species Act. The subspecies
wasn't listed until after that had been done. So something that
made a lot of sense as an instruction has turned out to be an
incredible drawback to rational thought.
Mr. Peterson. What I would say to an administrator, if you
regulated it, why didn't you unregulate it? Why didn't you
change the regulations or propose a change?
Mr. Thomas. I think it was proposed about--I would hate to
guess how many times we tried to revise the regulations.
The idea in adapting management is, you try something. You
learn, and you fix it and make it better. I don't know how long
it is been, but it has got to be close to 25 or 30 years that
we have been unable to revise those regulations. Every time we
get ready, we would have a new set of regulations ready to come
out. If it was a midterm election, the administration would
say, hold it; we really don't want to stir that up right now
before the election.
And then people get elected and some win, some lose, and
the power shifts, uh-oh, well, I don't like the people and
folks don't like the new regulations; do it again.
You do it again, you get ready to go, and you have a
Presidential election; and somebody wins that figured they were
going to lose, or loses that figured they were going to win,
and then suddenly they don't like those regulations. This has
happened five, six times. We have still been unable.
Finally, last time, they got new regulations out right at
the end of the Clinton administration, and the Bush
administration rolled them back. So we are about where we were
25 or 30 years ago. Those regulations--this idea that we would
be able to learn quickly and adjust the regulations has proven
to be a myth. It is almost impossible to achieve.
Mr. Peterson. I recognize Mr. Holt from New Jersey for 5
minutes.
Mr. Holt. Thank you, Mr. Chairman.
And, gentlemen, thank you both for your testimony.
I guess the fundamental question we have to get to is
whether there should be a change in--a legislative change.
Words that often are associated with the Forest Service are
``gridlock,'' ``litigation.''
Dr. Thomas, you have said that management activities are,
quote, ``increasingly expensive, uncertain, unpredictable,
contentious and unwieldy.'' and yet it--I think I hear you say
that you are not calling for major legislative changes.
We did have--we have--Congress before my time did make an
attempt at cutting through the Gordian knot to reduce judicial
and administrative review through the salvage rider a half
dozen years ago; and again observing this just as an outside
citizen, not as a Member of Congress during that period, there
did not seem to be any reduction in the uncertainty or the
unpredictability, the contentiousness, the unwieldiness of the
activities.
So was--you know, was this legislative effort a success?
Did it reduce gridlock? What does that tell us about the need
or lack of a need for major legislative action at this point?
Let me start with Dr. Thomas, please.
Mr. Thomas. First, the salvage rider, a perfect example:
The Forest Service was not brought into the loop on that. The
first time I ran into it was in the under secretary's office on
my way home from work, when it was being debated on the floor;
and I began to scream about what that was going to cost
politically. It passed overwhelmingly. It was signed. We were
given our marching orders that said we didn't have to consult,
but we did, and the only thing we didn't do is accept appeals.
We probably ended up salvaging less than we would have
under the normal regulation, but nonetheless, halfway home on
that, after being called over once a week to report on
progress, somebody stuck their finger up in the air and felt
the wind blowing in the other direction; and then we got the
brunt of having caused that when we were not even consulted.
And then we were right on target, and suddenly we changed
direction.
So it didn't have anything to do with the law. That had to
do with a shift in political direction.
Did I think the salvage rider was a good idea? Absolutely
not. But I want to say, I am calling for legislative change.
But what I want to get across is, I don't think that you can
fix this piecemeal. If you adjust one law or the other, it is
just going to get the balance out of whack. We need somebody to
sit down very, very carefully and look at all of those things
in context and come back in and say, this--you know, here are
several potential alterations that would lead us out of this.
It is going to--I don't think you can do it with your
Committees; I think you have got too many other things to do.
The first time around, they did it with a bunch of big
names who really didn't know much about it, and they ran around
the country having hearings and wrote a big book and said,
things are screwed up. That was in 1969. Only environmental
legislation occurred in the 1970's in the subsequent court
actions.
I think if there is any way out of this related to the law,
it is going to have to have somebody, some folks sit down and
very carefully work their way through this and come back with
suggested alterations that would be simultaneous. Otherwise, I
think you would just make it worse.
Mr. Holt. Chief Bosworth?
Mr. Bosworth. Well, as far as--let me start with the
question about the salvage rider, and I wouldn't suggest that
kind of an approach. Again, what we need to do is, we need to
look at this whole mass of laws that we have or mass of
regulations.
Now, I haven't been advocating that we look at legislative
changes, necessarily. I think that what I am really asking for
is to give bipartisan support to work with the Congress to make
changes in regulation. What I don't want to end up with is
getting into a big fight with--having the support of one side
and not the other side, and then not being able to, in the end,
make any kind of improvements in the process.
As I said before, I support the environmental laws
individually. I have a lot of difficulty with the amount of
time that it takes to implement those, the amount of dollars it
takes, often, with only a very, very small improvement in the
decisions that are going to be made and the infinitesimal
improvement in the decisions to be made. I believe that the
bulk of that is in the regulations.
My interest is in working with the--within the Forest
Service, as well as with the other agencies, like CEQ and the
Fish and Wildlife Service, and looking at those implementing
regulations to make sure that we can't make some changes on
parts that would significantly reduce the amount of time and
energy and analysis that it takes to implement them.
Now, if there are some--there may be some wisdom in looking
at the--at actual legislative change, but where my focus is
right now is really on the regulation.
Mr. Holt. Thank you.
Thank you, Mr. Chairman.
Mr. Peterson. Yes.
Chief Bosworth, while we have you here, you can lead a task
force to review the July 1995 report and accumulation of
numerous laws and regulations established over the last 25
years. Can you give us any status on that and when that would
likely come out? And will it make regulatory proposals and
legislative potential for changes, or--.
Mr. Bosworth. My guess is that it should be finalized here
in the very near future, next--probably by the first of the
year.
Mr. Peterson. Is it broad in scope?
Mr. Bosworth. Well, you know, I haven't--I have got a team
that is working on it, and I haven't gotten into all the
details with the team yet. But they are going to present it to
me, and I will take a look at it.
It has got recommendations. I have looked at parts of it.
It has got recommendations that there--that we haven't accepted
yet, but I am taking a look at those. It really--what it does,
it takes the report that was done in 1995 and then updates it
basically, and--to bring it up to speed with any of the other
kinds of laws that have passed or changes that have been made
since 1995.
So what I expect to have out of that is--is some
recommendations, some of which may require legislative change.
Mr. Peterson. But you--that would be the first--.
Mr. Bosworth. That would be what?
Mr. Peterson. The first of the year?
Mr. Bosworth. Yeah. I would like to have that completed by
the first of the year.
Mr. Peterson. Mr. Thomas, you did this in 1995. Can you
give some public advice to the Chief, what happened to your
plan and what he should--how he should make his doable?
Mr. Thomas. First, I give advice to the Chief only when the
Chief asks for it.
Mr. Peterson. I am asking you to give him advice.
Mr. Thomas. No. I would say--.
Mr. Peterson. But you could get together here. We have a
team that--.
Mr. Thomas. I would think--I don't--I don't know where they
stand. I can only tell you that they--I believe it was the
Senate--I don't remember--asked Mr. Glickman for this report.
The Forest Service prepared the report for Mr. Glickman, gave
it to him; and as far as I know, it is in a box over there
somewhere.
Mr. Peterson. File 13?
Mr. Thomas. I don't know if it was file 13. I suspect there
are some copies around somewhere, but basically that is one of
the things--you know, I am sensitive to politics and how they
work, but the Congress asked for the report. We prepared the
report, delivered the report to the Secretary, but it was never
released to the Congress. But nobody ever fussed at the
Secretary; they just fussed at the Forest Service for not
producing the report to Congress.
Mr. Peterson. We, let me just interject something.
It seems to me that politics is ruling here instead of
policy. I would like to go back to health care, because it is
life and death; but if you politically run health care, people
would die. I mean, you have to have sound science, what is
good.
But ours is no different, you know, sound science, proven
ways, proven methods. If politics is going to run our public
land, it is going to get all mucked up. I think that is where
we are at. You know, political winds blowing is where our
problem is.
It is either sound science to do something or it is not. We
may have groups debate that, but that is a debate, a public
discussion we should have had. But I used to believe that when
you had a public discussion, that what was right would win in
the end. After I got to Washington, I am not so sure that is
true, because the power of interest groups is so great and the
resources they will spend; and so I am not sure the truth
always wins, or I don't think it does back home.
Mr. Thomas. Well, I would be happy to reply to that.
As a scientist, I was in fact the highest graded scientist
that the Forest Service ever produced. I don't want you to be
confused between science and politics. Science should not
direct the U.S. Forest Service. The political process should.
Science defines what is possible. It defines the risk, it
defines the tradeoffs, but it should not define the policy.
That should be for the Congress of the United States and for
the administration.
For example, back to that loop when I was talking about
biodiversity, I desperately wish--this is a science question. I
can, you know, work with you or a number of other people can,
to talk about why you ought to do this, how you ought to do
that, how much risk there is involved. But, still, we have
never had the Congress or the administration come down and
clearly define in the political sense how important that is. It
has been left to the courts to decide what is appropriate.
Now, the courts have stepped--within the last 3 months, for
the first time, have stepped over and decided to legislate
science. They have always deferred to the expertise of the
agencies when it came to the application of science. The courts
within the last 3 months have stepped over that line, and I
think that there is a can of worms there that you are not going
to be able to believe.
Mr. Peterson. Thank you for your candor.
I believe, Mr. Udall, am I--or were you first?
Ms. McCollum. I was here first.
Mr. Peterson. OK. You are next, Ms. McCollum.
No, no, Ms. McCollum is recognized. She was here first. The
lady may proceed.
Ms. McCollum. Thank you, Mr. Chairman. You know, this is an
interesting discussion and not unlike one that we had at the
natural resources committee in Minnesota that I served on, with
our forest service back home talking about, you know, what do
you do with the tension, what do you do with the balance here?
And I really appreciate your comments, Mr. Thomas, because
you are correct. Science can only give us indicators. It can
give us guidelines. It can point directions. But it is, in a
democracy, up to the people to make the decision how our shared
resources are going to be used; and sometimes that is
contentious, at times that does shift from election to
election. But that is what makes this democracy so wonderful,
and the way that we handle things appropriately is to take them
to court and to do litigation.
Now, maybe there is a way that we can process things
getting up to the table--talking so that we don't become so
litigation-minded when it comes to these issues is something
that I would like to work out with others; and I think everyone
would benefit. Except for maybe some attorneys, everyone would
benefit from a process of doing that; and we need to do more of
that in a civil society, and I hope we can work toward that.
And even in your paper, you pointed out some of the words
from the Sierra Club. We need to sit down and work in a mutual
way that is more civil. And I think our courts--you know, they
are so backlogged that when they have something--that is what
is taking so long to make the decision. Our courts are
extremely backlogged.
But I really appreciate your comments, and it kind of has
held back the question that I had for you, when you said it is
up to science to give the explanations; it is up to science to
point out the directions we can go, the cause and the effect of
what will happen; but it is for the policymakers to make the
decision.
And so I really have more of a comment now than a question,
and I really thank you for your remarks.
And Mr. Chair, you know, you are right. Health care is a
mess. It is a mess because people don't have access to it,
because they don't have coverage, and because they have to take
their insurance companies to court to get coverage. So I agree
with you, health care is a mess.
Mr. Holt. Would the gentlewoman yield?
Ms. McCollum. Yes.
Mr. Holt. I would like to take this moment to follow up on
the comment that you just dropped, Dr. Thomas, about the change
in legislating science when you say the courts are now trying
to legislate science.
What do you--what do you mean? And could you elaborate a
little bit more on your previous comment as it really applies
to the Forest Service?
Mr. Thomas. Indirectly, the case I was speaking about has
to do with the Northwest, and it had to do with salmon. All of
this gets to be involved with the Forest Service, because we
have most of the spawning habitat.
The Fish and Wildlife Service differentiated between two
salmon stocks on the basis of whether they were hatchery-raised
or whether they were wild fish. And the Fish and Wildlife
Service, who theoretically had the expertise in this area,
said, no, they were indeed different. And they were going
through some relatively controversial management action to give
the edge to the wild fish, and the judge ruled that they were
the same.
That is a mind-boggling decision for a judge to make, and
not arguing about that particular decision, but when you cross
that line and you say, now I will sit here and I will decide
what is appropriate application of science and what isn't, that
is a major, major step in litigation that you won't see the end
of for a while unless we get--it gets overwhelmed in the
appellate court.
Mr. Holt. Well, I thank you. And as a scientist myself, I
understand the significance of what you are saying.
And I thank the gentlelady for yielding.
Mr. Peterson. I would like to be an observer. It appeared
to me that the regional directors' ability to manage their
regions kind of slipped between the tenure of the two of you--I
don't know whether that is--whether you agree with that or
not--and things got more elevated to Washington decisions,
standard policy.
Now, I think my view of the Federal Government is, we need
to have the rules, but there is a huge difference in the
forests across this country, they are very diverse; and a
Washington management team is going to mismanage half of them,
because they are different. And if they are not out there on
that forest and particularly--and certainly I come from the
hardwood forests in the Northeast, which certainly have no
relationship to the softwood forests of the South or the West,
and I guess the best government I have seen has always been
closer to the people, not--not at the State capital or not in
the Washington capital, but it seemed to me we--there was a
change in the Forest Service that raised more and more the
decisionmaking in Washington and regional foresters had less
clout.
Is that a fair assessment?
Mr. Thomas. Mr. Chairman, I think that happened as a matter
of a forced hand in the Pacific Northwest, where we suddenly
could not deal with issues related to northern spotted owls,
for example, that caused a revision of the entire--all of the
plans in the Northwest simultaneously. That was the first huge
elevation of something to a more national, or what the decision
was--the work went on out there, but all of a sudden, it was a
one-size-fits-all decision related to an Endangered Species Act
question.
There are several more of those that have occurred. In
fact, that decision for the Northwest was made by the President
of the United States.
So, basically, application of some laws and some cases are
forcing us to a higher level of decisionmaking operation. All
of those issues in the Northwest moved very fast, and I helped
with most of the teams, led most of them, and decided that we
were being pushed awfully hard and awfully fast, and maybe if
we had a little bit more time, we would do a better job. I now
have reflected on that and decided that that is not true,
because I had the authority and I turned around to Regional
Forester Bosworth and Regional Forester So-and-So and I said,
let's give these guys a little bit more time in the Columbia
Basin. They are still not through, but sooner or later, it will
emerge and they are going to have to make some regional
decisions there.
So I think, in some cases, it has been caused by
circumstance; in other cases--.
Mr. Peterson. Not political policy?
Mr. Thomas. That's right. In some circumstances, though, I
do think it has been a matter of political policy.
During my tenure, you know--I don't know, maybe I was kind
of odd man out. I was trying my absolute best to push money and
authority down at the same time the people I was working with
were pulling a lot of it up.
For example, I remember one time being ordered to finance
the Quincy Library Group. There wasn't any money to do it,
because I had sent all the money out to the field. And so I had
thwarted my overseers, though I didn't mean to, and there was
no way I could get the money together for the Quincy Library
Group, except to pull it together in the region. And, of
course, that set off every--every forest supervisor was smart
enough to go to their Congressman, who immediately started
raising hell about them taking money to go to Quincy. So I had
not pulled it up to the top of holding a bunch of money, and
got that consequence.
So, yeah, there is a pressure, and I think--after my time,
I think there was a bit more concentration of effort at the
Washington office level.
Mr. Peterson. Well, I would agree that pushing the money
decision down, but you do have to have contingency funds for--
that you can use for that kind of situation. If you would--you
know, looking back, it is easy to say that.
Mr. Thomas. Let me go a little further with that.
When you have contingency funds, somebody will get them
obligated for you for some political purpose; not necessarily,
in my opinion, was it the best nor what the Congress intended
to happen with those funds. We went in with a budget, this is
what we were going to do; and I thought I ought to push the
money--I thought holding a contingency fund was merely an
invitation for mischief.
Mr. Peterson. OK. But do you both agree that we need to
strengthen the regions? Let me just give you a quick example.
The Pennsylvania Department of Transportation was the worst
agency in State government history in the 1970's and 1980's.
Dick Thornburgh was Governor; Tom Larson was the new--and he
reorganized that department to where every district engineer
was just a tad in power below him. They had tremendous--but the
rules came out of Harrisburg. But these district engineers--and
I, as someone representing a lot of counties, had three
different engineers; I seldom talked to Harrisburg about
anything, only once in a while about money.
In fact, the Secretary of Transportation that followed him
said to me, I don't see much of you. Don't you like me? And I
said, your district engineers solve my problems and get things
done because they have the authority to do that now. I don't
have to go to Harrisburg to the Department of Transportation.
And I think personally--and Dale, I don't know whether you
would agree with that, but I think a lot of things have
probably been bumped up to you already that really should have
been solved in each of the regions; and if the head of the
department and a government as big as this country has to solve
all these individual little problems, he will never implement
his plan, because they will keep him busy with busywork,
solving problems that regional foresters ought to be solving
and regional management ought to be handling.
That is--my view of government from my observations, is
that you have to--only the biggest of decisions should come to
Washington; only the--you know, but if you centralize, this
quagmire will get bigger. That is just my theory. I don't know
if you agree with that or not.
Mr. Bosworth. Yeah, I do agree. Actually, I would push it
down further than the region, too. I would say that the forest
supervisors/district rangers level is--working with those local
folks is where we ought to be making as many decisions as we
can make, and they need the flexibility to make those decisions
and, again, not have to debate public policy, national policy
in every one of those--when every one of those decisions is
made.
They need to be working with local people, and they need to
be taking into account the national constituencies, because
they are national forests, after all, but the best decisions
and our greatest strength has been when we get those decisions
made at the local level.
Mr. Peterson. Now I will recognize the gentleman from New
Mexico, Mr. Udall.
Mr. Tom Udall. Thank you, Mr. Chairman.
Both of you have mentioned in your remarks and in answer to
questions the idea of collaborative efforts as far as the
Forest Service working in local areas and with local
communities that are concerned about what happens on Forest
Service land; and Chief Bosworth, I wrote you recently about
collaborative efforts and raised the issue about, possibly,
pilot projects that work on collaboration, those kinds of
things, and was there a need for legislation.
And Chief Thomas, I think, also raised the issue here with
Quincy Library Group, you know, how you get the money to do
collaboration.
We in New Mexico and in my congressional district have one
of the biggest collaborative experiments that is going on right
now, which is the Valles Caldera Preserve, which is 95,000
acres of public land purchased by the Federal Government, but
not managed by the Forest Service or the Park Service. The two
regional people are on the board, but it is a trust that is
running it. Both of you are probably somewhat familiar with it.
But then we have a group of citizens that are appointed by
the President with specialties in forestry and grazing and fish
and wildlife; and it is a pretty incredible preserve with 6-,
7,000 elk, great trout streams, good grazing land, wonderful
forests. And the real--the real challenge for them is managing
and then meeting all of these particular needs.
And so I am wondering, when I am hearing both of you talk,
if there is a need for legislation to authorize pilots, not
talk-down-to kinds of pilots but from the bottom up, if you see
a need in a community to--where issues are conflicting around a
particular forest, or several forests, to be able to say--
designate it as an area where collaboration is really needed
and be able to direct some resources to that area to allow the
Forest Service and the other stakeholders in the community to
come to the table and try to talk through these kinds of
issues.
And I would be interested in what both of you would think
about that.
I understand, Chief Thomas, what you are talking about,
about doing it piecemeal, and we can't do this piecemeal; but
it seems to me some of the way of getting through what the
problems we are in, and the gridlock in many areas, is letting
local people experiment--of course, having the Forest Service
involved and many others involved.
But please, Chief Bosworth, why don't you start, and then
we will go to the--.
Mr. Bosworth. Well, first, I think that the trying,
experimenting with different approaches makes a lot of sense in
a lot of places.
Now, I think even--even if we had some pilot projects that
we are experimenting with, I think we still need to move
forward with trying to solve some of the gridlock and looking
through some of the regulations and making some of those kinds
of changes. One of the difficulties they think our folks have
in terms of collaboration has to do with the fact that when
they are working with the community, when people come to the
table and they actually come to an agreement--from both sides,
they come to an agreement, then the Forest Service takes about
2 years to go through environmental analysis process. And then
there still may be somebody that is going to appeal it, because
there can always be somebody that doesn't agree in the end, and
so by the time we go through the process, a lot of the local
people have spent a lot of their own personal time working
together and beating through a decision, or at least a
proposal. When they don't--if they don't see it implemented in
a reasonable period of time, they are not willing to come back
to the table and take a crack at another project.
We need to find ways to be able to get through these
process parts so that there is a reward for collaboration and
coming to conclusion, so you can see the results of your
efforts on the ground. And I think that those are the kinds of
incentives that would help bring people to the table, if we
could get through the processes in a reasonable period of time
and if they could get through the processes in a reasonable
period of time.
Mr. Tom Udall. Chief Thomas?
Mr. Thomas. I think the incentive also allows giving them
some leeway.
Somebody was asking me about what huge changes I expected
Dale to make, and I said none. This is like swimming in a pipe
with the water moving really fast. You can just go backwards as
hard as you want to, and you can slow up just a little slower
than the current. You can swim like hell and get a little ahead
of it, and you can swim a little to the left and the right, but
you are in the pipe.
Now, it is hard to bring people into a collaborative
process when you tell them how constrained the decision space
is. I would love to see some real honest-to-God capability to
do some collaboration; you know, I would love to. And Dale
doesn't have to answer it, but I would love to have been able
to turn around somewhere and say, I would really like to
broaden this possibility out for you to collaborate and see
what we get out of it rather than saying, yeah, I want you to--
I want you to collaborate, but get in the pipe and go with the
current. Very, very constraining.
I would love to see some chances--and I think they may not
exist first in the West; it may exist some places in the East
where we are not talking about connective corridors and, you
know, great schemes and biodiversity and that sort of thing--of
where they might have some capability to make a little sense,
to turn around and say, let us pick some forests and take as
many of the limitations off of them as we can and let us see
what they could do. I think we might be stunned at what they
could do.
But if we have got them in that pipe, a little left, a
little right, a little faster, a little slower, but they are in
the pipe. And so I think unless we can cut them some slack
where we can be a little bit more innovative than we have been,
it won't lead to much, but I would love to see it tried, where
they really have a chance to do it.
Mr. Tom Udall. Thank you very much, and for the record, the
Chair of the Subcommittee on Forest and forest Health also
coauthored with me, Chief Bosworth, that letter to you on the
pilot projects.
Thank you, Mr. Chairman.
Mr. Peterson. Thank you.
Jack, I want to ask you one more question. I would like the
ability for you to look back; you have been there. I am sure
Dale likes to hear your advice, too. He may not always agree
with you, but I am sure he will sometimes.
If we don't broaden the pipe, if we don't slow the current
down, if we don't get some management ability back to the
Forest Service, where are we going to be in 10 years? Where is
the quality of public land going to be if we stay on this
course of analysis--paralysis by analysis--paralysis? Where are
we going to be?
Mr. Thomas. In one sense, probably right where we are:
frustrated and talking around the situation. Or we are going to
face the consequences of developing ecological situations.
I mean, no matter what the Forest Service wants to do now,
we have the potential for some really interesting fire years as
these things go by. But a lot of the--you get fooled; you know,
you could have a whole decade and we don't have any either. It
depends on the circumstances. But we have ecological processes
going on.
Now, there is one great discovery that everybody forgets.
Plants grow. Trees grow. Plants grow. None of these decisions
are permanent decisions. We have the capability of manipulation
of vegetation, of learning things, doing it different ways over
time; but I think it is frightening to see some of the stuff
that is developing in the West.
Now, a lot of that--those things that we said, you know,
they look backwards now and say, well, you shouldn't have done
fire protection and that sort of thing. Well, it made a lot
more sense when we considered those trees to be trees in the
warehouse that were going to be cut.
Now that we don't think that way particularly anymore, we
are still going to have to make some adjustments. And we just
can't step away from the situation that has developed and say,
wow, that is going to be interesting to watch; we are going to
be forced into some proactive management.
And I think they are doing a very excellent job now of
beginning to move into that in a limited fashion. But you have
got to understand, this is a long-term proposition, and they
can only touch a little bit of it at a time. There is a lot of
it out there.
Mr. Peterson. Can you, Jack?
Dale, do you want to say something in closing?
Mr. Bosworth. Well, I guess I would just say again that I
really think there are some great opportunities for us, working
together, to try to find places where we can make some
significant changes in this process gridlock. I think it is
absolutely critical that we do it.
If we don't, we will have a demoralized organization. We
will have work that is not going to get done on the ground. We
will have demoralized communities who would like to collaborate
with us. And unless we can find ways to get more of the dollars
out on the ground in places where we can find that common
ground, then I think we are just going to continue to see
deteriorating ecosystems.
So, again, I thank you for the opportunity to be here and
talk about this today.
Mr. Thomas. Mr. Chairman, could I make one last comment?
Could I make one last comment?
Mr. Peterson. You certainly can.
Mr. Thomas. Sitting to my right is one of the finest
professionals that the Forest Service has produced. Give him a
chance. These folks out there are the best in the world at what
they do. Give them some more--give them a chance. They are
depressed because they can't seem to get anywhere.
They came to work here because they wanted to be something
bigger than being an individual. They had a vision and a great,
century-long tradition. And I just hope we can figure out some
way to free them up to do their jobs with a little bit more
innovation and with a little bit more leeway to do that.
Because they are the best there are; and I spent 30 years in
the Service, and I would go back and do it again, just like
that, at any level.
So I hope you can cut them some slack.
Mr. Peterson. Did any member have a final question? OK. We
want to thank the witnesses--.
Mr. Tom Udall. Mr. Chairman, could I--.
Mr. Peterson. You certainly can. You are recognized.
Mr. Tom Udall. Yeah. Let me just ask one final question
here.
Chief, you talk--Chief Thomas, you talked about the public
land law review process and how you--from reading your
statement and hearing your comments, how you really wonder
whether that is the way to go and whether that can break
through what is happening here in terms of the--the overlap of
the laws and things.
Do you--do you see--and, Chief Bosworth, I would also like
your response on this.
Do you see any way that you could restrict--structure
something like that, a commission where you would think that
the result would be a positive one that would have the support
of the environmental community, the resource users, the Forest
Service and other stakeholders?
Mr. Thomas. I don't think there are a lot of people that--
there would be a number of people on both sides that didn't
like the idea because, hey, if you are in the conflict industry
and you know how to play this game, you don't want any changes.
I mean, we spent a long time developing our skills on both
sides of this issue, but my statement would be, what is there
to lose?
I mean, it would be--the cost would be peanuts relatively.
What have we got to lose to write people on it and let them
bring it in, and you can look at it and say, yes, this makes
sense or, no, it doesn't make sense. But to stand here and to
continue to hammer for at least the last 20 years about this
same situation, coming to the conclusion that there is nothing
we can do about it, and going back and talking about it again
is, why not give it a shot? It couldn't cost much.
I don't know who--they wouldn't--nobody would promise
support until they saw what came out of it. Then that would be
for the Congress to debate.
But to just sit here and continuously come back to the same
conclusion that we have got deep, deep problems like this and
saying, geez, we have got deep, deep problems. I have been
through this now for about 8 years, and I think it is worth a
shot. I don't think it would cost that much. I think it would--
you could get the right people to do it, and I think you could
do it under some reasonably tight deadlines.
Mr. Bosworth. I think there are a lot of different things
that we ought to be looking at, all at the same time. I think
the pilot idea, I think that us working with other agencies
with your support changes some of the regulations. I think
looking at land law review, at the whole myriad of laws, doing
many of those things at the same time, maybe out of some of
those we will make some progress.
I don't really have a good idea in my mind of how you would
configure a land law review, but I do believe that if we are to
take something like that on, it needs to be something that is
done quickly, I mean, in a short period of time, not something
that takes 5 or 6 years. I believe it should be something that
would have a result, back to the Congress or however it was
going to be done, within a 6-month period or something like
that, and not delay it.
Mr. Tom Udall. Thank you both for your service.
And thank you, Mr. Chairman, for that--allowing me a final
question.
Mr. Peterson. I want to thank Chief Bosworth and Jack. I
want to thank you both for your diligence today, your
willingness to discuss those issues with you.
Chief, if we could have the--a copy of your report as soon
as possible, I am sure the Chairman and I and the minority
Ranking Member would love to look at it and react to it. I, as
one, will offer myself to work with you and opposing sides. I
mean, I think it--we have got to somehow come to some better
process here; and I would be one to--be glad to work with you,
with whoever else, to see if we can't get some consensus to
move things forward; because I think continuing on the course
we have been on is not going to serve anybody well. It is
certainly not going to serve the land well and the people who
want to use it.
I want to thank both of you. I want to thank the Members
for their good questions, and the hearing record will be held
open for 10 days for any additional questions, and they will be
in writing. So then we will send them to you and ask for your
responses, and that will be a part of the record.
This part of the hearing is concluded, and now we will
introduce our next panel.
Due to the hour, I am going to change the rules on the
second panel. I will ask you to keep your comments to 5
minutes. I know that is tough. I apologize.
But we have Nathaniel Lawrence, Senior Attorney and
Director of Forestry Project, Natural Resources Defense
Council; and Jim Perry, former Associate General Counsel,
Natural Resources Division, office of the general counsel,
USDA.
Mr. Peterson. We will begin with Mr. Lawrence for his
statement.
And welcome to both of you.
STATEMENT OF NATHANIEL LAWRENCE, SENIOR ATTORNEY AND DIRECTOR
OF FORESTRY PROJECT, NATURAL RESOURCES DEFENSE COUNCIL
Mr. Lawrence. Good afternoon, Mr. Chairman, members of the
Subcommittee. Thank you very much for the opportunity to appear
and testify today.
I am going to try to provide some context for a talk about
streamlining Forest Service management by focusing on the two
activities, the two management practices, that we most hear
about as being unduly constrained by procedural requirements
like NEPA. These are thinning, aimed at reducing fire risks,
and post-fire salvage.
In summary, these are both activities, management
practices, that are full of uncertainties. They have the
possibility to do more harm than good, to have more harms than
benefits. They need a full vetting. They need careful analysis.
They need a candid assessment of their downsides, and they need
to be followed by monitoring and evaluation if we are ever to
learn how, if at all, to conduct them so that we do more good
than harm.
These are, therefore, really poor candidates for procedural
streamlining. We need procedural safeguards for these kind of
activities. This doesn't mean there isn't anything we can do to
expedite forest management. In particular, the Forest Service
can focus thinning, especially in areas that are least
controversial, and through practice, methods that are least
controversial. And it can also use the existing authority under
NEPA to use that process as an umbrella for other processes so
that it avoids redundant processes.
Congress can help this as well by providing the funding
that the agency needs--resources expeditiously to comply with
existing procedures, which after all apply to most Federal
agencies, not just the Forest Service. And also to urge the
agency, to insist the agency focus on noncontroversial areas
and treat things like thinning as the experiment they are and
not as routine, well-understood predictable activities that we
can simply jump into without looking before we leap.
Let me start by saying a little something about how
experimental thinning for fire risk reduction is. There are
virtually no peer-reviewed, empirically based research studies
that show, after thinning, a reduction in fire intensity. It is
just--this is just not there.
There are a bunch of studies--they are far from
conclusive--that show increases in fire intensity after
thinning; they are cited in my written testimony. Again, they
don't settle the issue, and I am not suggesting that the issue
is easy to settle, but they show how controversial this is and
how scientifically uncertain this practice is.
There is anecdotal evidence, of course, both ways. The
timber industry could take you out and show you thin stands
that burnt more coolly after they were thinned, and others can
take you out and show you stands that were thinned and then
subsequently burned very hot. I think this raises a natural
question of how you could have hotter fires after thinning,
because if you are taking wood out of a fireplace, you know,
you get a lower flame.
Well, there are a number of things that thinning does that
it can aggravate fire intensity, and I want to just very
briefly touch on them.
First, thinning opens up forest stands to wind and to sun,
both of which dry out the forest interior and make it more
flammable.
Second, thinning leaves behind the small branches and
needles and brush and shrubs and saplings that are the most
flammable component of the forest. Normally it leaves behind--
it is very difficult to get those out when you do logging.
Third, it opens up the forest to flammable, brushy in-
growth that makes the area more flammable later on. It also
compacts--if it uses heavy equipment, it compacts soil so that
water runs off instead of infiltrating to the ground and
moistening the forest.
And last, it imports diseases and insects that damage
forest health.
One reason that thinning is unpredictable is that when we
thin forests to reduce fire, we are trying to recreate
historical conditions that are really not very well understood.
They are--these are conditions that--there is a lot of
controversy about the intensity of past fires. There is
scientific controversy about the density of past forests.
We don't really understand the conditions that we are
trying to understand. We do know that they varied across the
landscape very much, with microsite conditions, and that if you
are going to conduct them in ways that are going to mimic past
conditions, you really need to look on a case-by-case basis and
look very carefully at what you were doing.
I am going to jump over, because I see my yellow light is
up, to say that it is important for you to consider when you
are--when you are thinking about streamlining, that the
problems on national forests that are often pointed to as
calling for urgent action are problems that result from many
decades of Forest Service decisionmaking, most of it done
without benefit of the procedural safeguards that we have
today.
As long ago as 1930, the Forest Service knew that fire
supression, for example, aggravated subsequent fire intensity,
that caused problems when we had later fires. If we had had an
environmental review at the time, the adverse consequences of
that practice and other practices that aggravate fire
intensity, like logging and grazing, could have been factored
into the decisionmaking, and we might well not have the
problems we do have today.
I think there are lots of things that the Forest Service
can do to expedite its management without running undue risks,
and can focus in places where there is a good chance that it
can do more harm than good. And first of all, the agency really
needs to focus its work in the immediate urban and wildland
interface, where drastic thinning, the kind of thinning that
doesn't really leave a forest behind, really does make it very
difficult for structures to burn up. We really can come close
to fireproofing communities if we do an adequate job of
focusing in the immediate vicinity of structures.
When that work is done, there is a wealth of activity, a
wealth of management activity, thinning that can be done in the
previously managed and logged and eroded landscape, focusing on
the small trees that have grown in since fire regimes were
disturbed, rather than on the medium- and large-size trees that
are the normal object of commercial logging.
I will hold the balance of my comments here for your
questions. Thank you.
[The prepared statement of Mr. Lawrence follows:]
Statement of Nathaniel Lawrence, Natural Resources Defense Council
Good afternoon Mr. Chairman and members of the subcommittee. Thank
you for the invitation to appear and testify today. I am going to focus
my remarks on two national forest management practices that Congress
sometimes hears characterized as unduly delayed by existing laws and
regulations, particularly procedural requirements like those of the
National Environmental Policy Act (NEPA). These practices are thinning
for fire risk reduction and post-fire salvage logging. Both practices
are full of uncertainties and each has the potential, at least, to do
more harm than good. Both need thorough review of site-specific factors
and candid assessment of their downside risks on a case-by-case basis.
Both need very careful monitoring and long-term evaluation if we are
not to remain ignorant of how, if at all, to keep them from backfiring.
In general, therefore, these activities are not good candidates for
procedural streamlining, let alone exemption from existing laws and
regulations. This does not mean, however, that there is no room for
improvement in how they are conducted. The Forest Service can expedite
thinning projects, in particular, by focusing on the least
controversial areas and practices. Congress can help by insisting that
the agency devote its resources to the immediate vicinity of
communities, where potential benefits from fire risk reduction are
greatest and risks to residual natural values generally lowest.
Congress can also assist by ensuring that the Forest Service and its
sister agencies have the staff and resources to comply fully and
swiftly with existing procedural safeguards, and a mandate to conduct
thinning as an experiment that must be carefully designed, monitored,
and evaluated for its actual results and impacts. And Congress can
encourage the Forest Service, to the extent that it identifies
redundant processes, to combine them under the general umbrella of NEPA
review.
Forest Thinning and Environmental Review
I will turn first to forest thinning aimed at reducing fire risks.
There is surprisingly little scientific information about how thinning
actually affects overall fire risk in national forests. Because of
this, thinning projects need very careful design, location, execution,
monitoring, and evaluation.
Most importantly, virtually no peer-reviewed, empirical studies
show that thinning forests in fact leads to a systematic reduction of
subsequent fire intensity. 1 The Forest Service's Cohesive
Strategy acknowledges this, noting that ``[a]t landscape scales, the
effectiveness of treatments in improving watershed conditions has not
been well documented.''2 And a series of studies--though
certainly not definitive--shows post-thinning increases in fire
intensity and/or spread.3 Anecdotal cases exist both ways:
some thinned forests have burned hotter than their surroundings and
some have burned cooler. But why that is so is the subject more of
hypothesis than of factual evidence.
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\1\ There are numerous models and assessments that predict what
future fire intensity might be, but they do not report the actual near
or long-range results of thinning as conducted under real world
conditions. Similarly common are studies that look at occurrence and
acreage of fire without considering intensity. However, thinning does
not aim to reduce burning overall, indeed lack of low-intensity burning
is seen as part of the problem with national forests. Rather, the
postulated function of thinning is to make fires less intense. Thus,
studies that ignore intensity do not provide useful information about
the effectiveness of thinning. One masters degree thesis appears to
provide a lone exception to this dearth of relevant research. Pollet,
J., and Omi, P.N. 1999. Effect of thinning and prescribed burning on
wildfire severity in ponderosa pine forests. Paper presented at the
JFSC Fire Conference, ``Crossing the Millennium: Integrating Spatial
Technologies and Ecological Principles for a New Age in Fire
Management.'' Boise, Idaho.
\2\ U.S. Forest Service. 2000b. Protecting People and Sustaining
Resources in Fire-Adapted Ecosystems: A Cohesive Strategy. Oct. 13,
2000.
\3\ Many of these studies were reviewed by the Forest Service in
connection with the Final Environmental Impact Statement for the
Roadless Areas Conservation Rule (FEIS). The fire specialist review of
scientific literature for the FEIS summarizes their findings. See FEIS,
Fuel Management and Fire Suppression Specialist's Report, http://
www.roadless.fs.fed.us/documents/feis/specrep/xfire__spec__rpt.pdf at
22 (The Congressional Research Service noted: ``timber harvesting does
remove fuel, but it is unclear whether this fuel removal is
significant; '' ``Covington (1996) notes that, ``scientific data to
support such management actions [either a hand's off approach or the
use of timber harvesting] are inadequate '' (brackets in the source));
id. at 22-23 (``Kolb and others (1994)conclude that management
activities to improve forest health [such as fuel management] are
difficult to apply in the field'' (brackets in the source)); id. at 21
(``Fahnstock's (1968) study of precommercial thinning found that timber
stands thinned to a 12 feet by 12 feet spacing commonly produced fuels
that ``rate high in rate of spread and resistance to control for at
least 5 years after cutting, so that it would burn with relatively high
intensity; '' ``When precommercial thinning was used in lodgepole pine
stands, Alexander and Yancik (1977) reported that a fire's rate of
spread increased 3.5 times and that the fire's intensity increased 3
times''); id. at 23 (``Countryman (1955) found that ``opening up'' a
forest through logging changed the ``fire climate so that fires start
more easily, spread faster, and burn hotter''). See also Huff, M.H.,
R.D. Ottmar, E. Alvarado, R.E. Vihnanek, J.F. Lehmkuhl, P.F. Hessburg,
and R.L. Everett. 1995. Historical and current landscapes in eastern
Oregon and Washington. Part II: linking vegetation characteristics to
potential fire behavior and related smoke production. U.S. Forest
Service Pacific Northwest Forest and Range Experiment Station, GTR-
355. Portland, Oregon; U.S. Forest Service. 1995. Initial review of
silvicultural treatments and fire effects on Tyee fire. Appendix A,
Environmental Assessment for the Bear-Potato Analysis Area of the Tyee
Fire, Chelan and Entiat Ranger Districts, Wenatchee National Forest,
Wenatchee, WA. 5 pages.
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How can it be that thinning could increase fire risks? First,
thinning lets in sunlight and wind, both of which dry out the forest
interior and increase flammability. Second, the most flammable
material--brush, limbs, twigs, needles, and saplings--is difficult to
remove and often left behind. Third, opening up forests promotes
brushy, flammable undergrowth. Fourth, logging equipment compacts soil
so that water runs off instead of filtering in to keep soils moist and
trees healthy. Fifth, thinning introduces diseases and pests, wounds
the trees left behind, and generally disrupts natural processes,
including some that regulate forest health, all the more so if road
construction is involved.
Undoubtedly, part of the reason the impacts of thinning are so hard
to predict is that the historical conditions it seeks to recreate
varied from site to site in ways we do not understand all that well.
The notion that the Interior West was once blanketed with widely spaced
trees subject to uniformly frequent and cool ground fires, used as an
argument in favor of wholesale thinning today, is an extravagant over-
simplification. As a general matter, it is problematic to extrapolate
just how dense or sparse forests actually were in pre-settlement
times.4 We do know that some specific representations of
widely spaced trees in the pre-settlement West are wrong.5
We also know that pre-settlement fires burned with variable
intensity.6 How frequently even dry pine sites burned is
scientifically controversial.7 And both the density of trees
and the natural, sustainable intensity of the fires they experienced
surely varied with such factors as the elevation, the directional
orientation, the moisture regimes, and the landscape position of
forests. Thinning projects therefore raise a series of site-specific
issues about what conditions are being mimicked and why.
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\4\ Stephenson, N.L. 1999. Reference conditions for Giant Sequoia
forest restoration: structure, process, and precision. Ecological
Applications. 9: 1253-1265; Landres, P.B., Morgan, P., and Swanson,
F.J. 1999. Overview of the use of natural variability concepts in
managing ecological systems. Ecological Applications 9: 1179-1188.
\5\ The Forest Service's long-time poster child for supposedly pre-
management open stand conditions in the dry West is this 1909
photograph from the Bitterroot National Forest. See Figure 1. The photo
in Figure 1 actually is of a just-logged stand. See Gruell, G.E. 1983.
Fire and Vegetative Trends in the Northern Rockies: Interpretations
from 1871-1982 Photographs. U.S. Forest Service, Intermountain Forest
and Range Experiment Station GTR INT-158. Ogden, UT. Figure 2 is a
genuine pre-logging photo from the same area and year, showing much
closer spaced trees. Arno, S.F., J.H. Scott, and M.G. Hartwell. 1995.
Age-class Structure of Old Growth Ponderosa Pine/Douglas-fir stand and
its relationship to fire history. U.S. Forest Service, Intermountain
Research Station GTR INT-RP-481. Ogden, UT. Figure 1 was presented as
an illustration of desirable, baseline conditions in a widely
distributed 1998 Forest Service poster and in the first, i.e. May 31,
2000, edition of the agency's Coherent Strategy document. The General
Accounting Office also included it in Western National Forests: A
Cohesive Strategy is Needed to Address Catastrophic Wildfire Threats.
U.S. GAO. 1999. Report no. GAO/RCED-99-65.
\6\ Morrison, P.H and Swanson, F.J. 1990. Fire history and pattern
in a Cascade Range landscape. U.S. Forest Service Pacific Northwest
Forest and Range Experiment Station, PNW-GTR-254. Portland, Oregon.
\7\ Baker, W.L. and D. Ehle. 2001. Uncertainty in surface-fire
history: the case of ponderosa pine forests in the western United
States. Can. J. For. Res. 31: 1205-1226.
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Does this mean that we should not try to reduce fire intensity with
thinning? Not at all. However, it does mean that thinning is not an
established cure for intense fire that we can apply routinely without
careful planning and evaluation. Rather it is an experiment that can
backfire, one that we do not understand well and that badly needs
existing procedural safeguards
Long-term implications of Salvage Logging
More scientific research exists about the actual impacts of post-
fire, or ``salvage,'' logging. Yet here, too, current laws and
regulations are critical for minimizing harm to the long-term integrity
and productivity of our forests, and loss of the public values for
which they are to be managed. Great care is needed in part, Forest
Service researchers have concluded, because salvage logging spreads
exotic species, causes erosion, and reduces wildlife usage, among other
harms.8 Post-fire soils are particularly susceptible to
logging damage and associated loss of productivity.9
Scientists both inside and outside the Forest Service agree there is
little or no evidence that post-fire logging reduces the risk of later
reburn, and warn that site-specific factors are critical in assessing
the impacts of salvage logging.10 All of this means that, as
with thinning, it is very risky to streamline procedures for planning
and evaluating salvage projects.
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\8\ McIver, J. D., and L. Starr, tech eds, 2000. Environmental
Effects of Postfire Logging: Literature Review and Annotated
Bibliograph. U.S. Forest Service, Pacific Northwest Research Station
PNW-GTR-486. Portland, OR.
\9\ Beschta, R.L, et al. 1995. Wildfire and Salvage Logging. Oregon
State University. Corvallis, OR.
\10\ See McIver, J.D. and L. Starr, supra note 8 (``postfire
logging is certain to have a wide variety of effects, from subtle to
significant, depending on where the site lies in relation to other
postfire sites of various ages, site characteristics, logging methods,
and intensity of fire''); see also Beschta et al., supra note 9;
Everett, R. 1995. Review of Beschta document. Letter dated August 16 to
John Lowe. On file with: U.S. Forest Service, pacific Northwest
Research Station, Wenatchee, WA.
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Consequence of Forest Management Without Environmental Review
When considering the need for review and evaluation of pre- and
post-fire management projects, Congress should bear in mind how
national forests came to need remedial attention. Forest health
problems are the direct result of past management decisions and
practices that were mostly adopted by the U.S. Forest Service without
benefit of NEPA review. For example, while it is sometimes argued that
the agency could not have known that fire suppression would create more
intense subsequent fires, as early as 1930 the Journal of Forestry
published a report by one of the agency's forest supervisors detailing
exactly this consequence of aggressive fire suppression.11
Had environmental review been required at that point, the wildfire-
promoting aspects of fire suppression and of other management practices
like grazing 12 and logging 13 would have been
examined and could have been avoided or mitigated long before they
reached current dimensions. In some measure this is what happened at
the National Park Service.
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\11\ Benedict, M.A. [Supervisor of the Sierra National Forest].
1930. Twenty-one years of Fire Protection in the National Forests of
California. Journal of Forestry 28: 707-710.
\12\ Belsky, A.J. and D. Blumenthal. 1997. Effects of Livestock
Grazing on stand Dynamics and Soils in Upland Forests of the Interior
West. Conservation Biology 11:315-327.
\13\ See supra note 3, and accompanying text.
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To this day, Forest Service management threatens to aggravate the
conditions most often cited as justifying shortcuts in project review
and evaluation. In particular, the agency combines restoration projects
with commercial logging even though the two kinds of projects have
diametrically opposite priorities. The small trees associated with
heightened fire risks in some places, i.e. those that were established
only after management changed fire regimes, are not commercially
valuable. Conversely, the larger and more commercially valuable that
logged trees are, the more logging resembles the practices that
contributed to increased fire risk in the first place. A companion
problem is the continued uncritical focus of the National Fire Plan on
massive, broadscale fire supression, despite uniform acknowledgement
that ``decades of fire exclusion''14 have heightened fire
risks.
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\14\ Compare http://www.na.fs.fed.us/nfp/ff/ff__overview__text.htm
with http:/www.na.fs.fed.us/nfp/hazfuel/reports/
brief__nfp__keypoint__hazfuel__032301.htm. Some fire suppression is, of
course, essential. Missing from the National Fire Plan, however, is any
awareness that ultimately all forests in the lower 48 states burn and
that for those thta naturally burn frequently, putting out small fires
aggressively, rather than allowing some burning, stores up bigger
problems for later on. The 10-year Comprehensive Strategy, supra note
1, does show some awareness that restoration of fire is an integral
part of the challenge faced in our Nation's forests.
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Possibilities for Expediting Forest Management
Can anything be done to simplify and expedite Forest Service
management of the kind of projects we're talking about? The answer is
unequivocally yes.
Most readily, the agency can focus its energies on less
controversial areas and projects. As a first priority, forest
communities need assistance with the kind of drastic thinning in the
immediate vicinity of structures that, though it does not leave a
functioning forest, does in fact make the spread of flames to houses
difficult, especially if they are retrofitted with fire resistance
siding and roofs.15
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\15\ Cohen, Jack. 1999. Reducing the Wildland Fire Threat to Homes:
Where and How Much? In proceedings of the Symposium on Fire Economics,
Planning, and Policy: bottom lines; 1999 April 5-9. San Diego, CA;
Gonzales-Caban, Armando; Omi, Philip N., technical coordinators. U.S.
Forest Service Pacific Southwest Research Station Gen. Tech. Rep. PSW-
GTR-173. Albany, CA.
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As a second priority, there is an abundance of small diameter
thinning that can be tried in the developed forest matrix that has been
most modified by past management and thus is most likely to suffer from
altered fire regimes. If this work is targeted to the specific slopes
where dry forests once predominated, designed with size
limits,16 conducted with low impact equipment, and subject
to long term monitoring, we may reduce subsequent fire intensities and
will certainly gain the data essential to informed decisionmaking in
the future. At all events, little controversy, and thus less delay,
will attend well-designed light touch projects in heavily altered
landscapes.
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\16\ See, e.g., National Park Service. 2001. Environmental
Assessment, Hazard Fuel Reduction and Site Restoration, Sequoia & Kings
Canyon National Parks, East Fork Kaweah Developed Areas, Oriole Lake
and Silver City. Environmental Compliance Document 2001-19. Three
Rivers, CA. This project uses hard and fast criteria that preserve all
trees over 40 feet high and all down logs over 8 inches in diameter.
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Third, Congress can and should provide the direction and funding
for vigorous environmental review, monitoring, and subsequent
evaluation of the kinds of thinning projects described above. We need
to understand that failure to assess such projects fully and design
them intelligently and conservatively may well make fire risks, and the
associated costs--economic, environmental, and human--of firefighting,
greater not less.
And finally, Congress can and should urge the Forest Service to
build on existing authorities to fold parallel procedural requirements
into the NEPA process. The Council on Environmental Quality regulations
already encourage such overlap.17
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\17\ 15 C.F.R. Sec. 1506.4.
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What should Congress not do or allow? It should not allow the
agency to confuse commercial logging with restoration, given their
opposite incentives. It should prohibit the agency from wasting
resources, time, and credibility conducting extensive and controversial
``restoration'' projects far away from communities. This is especially
true of roadless and other sensitive areas, most of which have seen the
least damage precisely because they have thus far been the least
managed. It should not allow the Forest Service to shortchange NEPA,
which is precisely the mechanism with the best chance of bringing into
the light of day the risks of and counter-indications for treatments
that may ultimately have the opposite of the desired result. And it
should not dispense with or allow the agency to undercut administrative
appeal rules, rules which are an essential part of public participation
and public trust in agency decisionmaking, and which do not entail
delays outside of the Forest Service's control of more than two
months.18
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\18\ Compare 36 C.F.R. Sec. 215.13(a) with 36 C.F.R.
Sec. 215.10(b).
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Thank you for the opportunity to testify today. I would be happy to
answer any questions you might have.
______
Mr. Peterson. Jim Perry, please proceed.
STATEMENT OF JAMES P. PERRY, FORMER ASSOCIATE GENERAL COUNSEL,
NATURAL RESOURCES DIVISION, OFFICE OF THE GENERAL COUNSEL, U.S.
DEPARTMENT OF AGRICULTURE
Mr. Perry. Thank you.
The problems that we face today in the Forest Service are
not so much a result--.
Mr. Peterson. Could you get closer to the mike?
Mr. Perry. OK.
The problems that we face today in the Forest Service are
not so much a result of the direct conflict of statutes as the
combined layering effect of a broad number of environmental
statutes over a period of years, along with the gradual
expansion of these statutes by regulation and judicial
decision. And in the case of NEPA, which primarily affects the
Forest Service, the implementing regulations of that statute
provide the legal basis for extensive and time-consuming
judicial review of virtually any land management decision the
Forest Service would care to make.
Also, we might remember that Senator Hubert Humphrey once
said that the purpose of NFMA, the other principal Forest
Service statute, is to get the Forest Service out of the
courts. Unfortunately, the very numerous resource requirements
of NFMA have provided ample grounds for litigation over the
years. So, simply put, the overexpansion of judicial review of
Forest Service activities has greatly hindered the agency in
carrying out its statutory mission. Not only that, but the
extensive time necessary to make decisions for possible
administrative review and litigation has dissuaded managers
from making many worthwhile decisions.
I could cite numerous examples of appeals and litigation
abuse. One or two might be the announced intent of some
organizations to appeal all timber sales, evidently regardless
of merit. We have another case in which a group of plaintiffs
have now filed nine appeals in the 9th Circuit Court of Appeals
regarding the Mt. Graham Red Squirrel.
But what I would like to spend my time on today is a few
recommendations to help this process.
First, Congress should review the current status of
Project, forest plan and Multiforest NEPA compliance. I recall
that when NEPA was enacted in 1969, the contemporaneous
understanding was that agencies would put together about a 15-
page EIS. But through development of regulations, agency
practice and judicial decisions, EISs now run hundreds of
pages.
In recent years, the Forest Service has become the largest
single producer of EISs in the Federal Government, accounting
for perhaps one-fourth the total. Also the Forest Service makes
hundreds of EAs, many running 100 pages in length. Preparation
of all of these documents, in addition to the forest plan EISs,
takes a massive amount of forest time and budget.
I think what Congress needs to do is to consider whether
the Forest Service should continue to be funded to do forest
plans and supporting EISs, unless the Forest Service is going
to be given some statutory coverage to find that the EIS done
on the forest plan is going to act as an umbrella for all
activities under the forest plan.
The next suggestion I would make is that the Congress needs
to review the extent to which other laws have changed and
altered multiple-use management of the national forest system.
In the Pacific Northwest, of course, the Forest Service lands
protect the spotted owl. Those same lands often protect the
spawning grounds of the salmon. In the Southeast we have the
Red Cockaded Woodpecker, and I could go on. But in each case,
the demise of the species was not the primary result of
activities on national forest lands. Nevertheless, however, the
remedy has been the misallocation of the burden of species
protection to the national forest.
Some people have suggested that the individual species
protection is a form of ecosystem management, but I have
reviewed the work of Dr. Robert Bailey, a Forest Service
scientist who has developed ecoregion maps of the whole
country; and interestingly, when one overlays these single
species protection zones over the ecosystem map of Dr. Bailey,
one sees little, if any, correlation. So I would suggest that
the one-size-fits-all management for single species protection
ignores the very basis of ecosystem management.
The other suggestions I have are that the CEQ needs to
develop regulations to harmonize the various environmental
statutes. We had the CEQ-promulgated NEPA regulations in 1978.
They have made very few change since, but a lot of water has
gone over the dam. Likewise, CEQ needs to address the
particular problems of Federal land management agencies.
The Forest Service has been impacted by NEPA more than
perhaps any other single agency, and there is a constant
tension between just basic statutes. CEQ has been remiss, in my
judgment, in failing to address these problems.
Summing up here, I would support the Public Land Law Review
Commission idea, because I think what we need to do is build a
base of public understanding and compromise on future
legislation, and I think it is important to assuage the
concerns held by many that somehow review and revision of
environmental laws is going to result in the loss of
environmental protections.
Thank you.
[The prepared statement of Mr. Perry follows:]
Statement of James P. Perry, Former Associate General Counsel
(Retired), Natural Resources Division, U.S. Department of Agriculture
My name is James P. Perry. I am a career civil servant, having
retired from the Office of the General Counsel, U.S. Department of
Agriculture on October 1, 1998, after more that 32 years of service.
During that time I served as Deputy Assistant General Counsel for
Forestry from 1980 to 1989, as Assistant General Counsel for Natural
Resources from 1989 to 1995 and as Associate General Counsel for
Natural Resources from 1995 until my retirement. In the latter two
positions I headed the section of the Office of General Counsel which
provided all natural resource program legal advice to the Forest
Service and the Natural Resources Conservation Service.
BACKGROUND
My career spanned many milestones in natural resources law
including the passage of the National Environmental Policy Act of 1969,
the Endangered Species Act of 1973, the Monongahela (clear-cutting)
litigation, the National Forest Management Act of 1976, promulgation of
several versions of Forest Land Management Planning regulations, and
the Northern Spotted Owl litigation just to name some of the
highlights. During that time I had the duty and privilege of personally
advising Chiefs John McGuire, Max Peterson, Dale Robertson, Jack Ward
Thomas, Mike Dombeck and, prior to his appointment as Chief, Dale
Bosworth.
During three decades as agency counsel I was in a unique position
to witness many changes in the utilization and administration of our
National Forests. At the time I joined the Office of the General
Counsel in the late 1960s there were few legal challenges to Forest
Service management policy for two closely related reasons. First, few
organizations or individuals were found by the courts to have the legal
right or legal standing to challenge agency decisions. Second, there
was little statutory law to apply to Forest Service actions.
The National Forests were essentially administered under a two
basic statutes, the Multiple-Use Sustained-Yield Act of 1960 (MUSYA)
and the Organic Act of 1897. MUSYA codified the management practices of
the Forest Service over the previous decades, providing that the
National Forests are established and shall be administered for
``outdoor recreation, range, timber, watershed, and fish and wildlife
purposes.'' Early judicial interpretations of MUSYA described the
statute as ``breathing discretion at every pore.'' Thus, there was
little basis for a court to find that the Forest Service had failed to
give ``due consideration'' to the resource decision at issue and
federal courts generally accorded a degree of judicial deference to
agency administrative expertise.
Beyond the broadly worded mandate of MUSYA, there was little law to
apply to Forest Service management decisions. That situation began to
change rapidly in the 1970s with the dramatic expansion in the number
and complexity of the statutes which regulated the National Forest
System. The result, primarily unintended, was an explosive growth in
litigation challenging agency decisions.
The layering effect of multiple statutes designed to enhance some
aspect of environmental quality combined with their gradual expansion
by regulation and judicial decisions has rarely been analyzed. While
some will insist that our environmental laws work well together, it
seems unlikely that statutes addressing such diverse topics as air
quality, water quality, and wildlife, enacted in different decades with
minimal cross reference would be fully integrated to avoid redundancy
or to address statutory interactions and conflicts.
The broad language of NEPA and its implementing regulations has
provided a basis for extensive and time consuming judicial review of
administrative decisions by land management agencies. Likewise, one of
the authors of the National Forest Management Act of 1976, Senator
Hubert Humphrey, stated that the purpose of that Act was to get the
Forest Service out of the courts. Instead, the numerous resource
requirements of NFMA have been litigated extensively.
The expansion of judicial review for Forest Service activities has
greatly hindered the agency from proceeding in timely fashion with
management initiatives and prevented or delayed many projects,
including those which are environmentally beneficial. In addition to
the substantial costs of defending litigation, the cost of preparing
many projects with the expectation of extensive administrative appeals
followed by litigation undoubtedly dissuades local managers from
undertaking worthwhile projects due to budget concerns. I could cite
numerous examples of appeal and litigation abuse such as announcements
by some groups of an intent to appeal all future timber sales and the
filing of at least nine appeals to the 9th Circuit Court of Appeals by
plaintiffs in litigation involving the Mt. Graham Red Squirrel.
I commend this committee for its efforts to improve the body of
laws protecting the environment. With a shared understanding that the
goal is to improve public land management without weakening
environmental protections, I am hopeful that all interest groups will
see the benefits of harmonizing and simplifying existing statutes.
RECOMMENDATIONS
Congress Should Review the Current Status of Project, Forest Plan and
Multi-Forest NEPA Compliance
I recall the enactment of the National Environmental Policy Act of
1969. The contemporaneous understanding at the date of passage was that
federal agencies should prepare EISs of about 15 pages in length.
Through development of regulations, agency practice and judicial
decisions EISs now run hundreds of pages. While NEPA may have improved
the environmental decision making of many federal agencies, NEPA is
primarily a procedural statute and not a mechanism for policy
determinations. In recent years the Forest Service has become the
largest producer of EISs in the federal government, accounting for
roughly one forth the national total. Further, the Forest Service
prepares hundreds of Environmental Assessments (EAs) annually, many of
which run roughly 100 pages in length. Computers now generate
boilerplate EISs, which are considered necessary to respond to computer
generated public comments, appeals, and lawsuits.
Preparation of these environmental documents involves a substantial
commitment of Forest Service staff and budget resources. Broad scale
and costly Forest Plan and larger programmatic EISs overlap project
EISs and EAs, much of material being repetitive in nature. Particular
scrutiny should be given to the appropriate role of the Forest plan EIS
in order to efficiently utilize available resources. After careful
study Congress should consider conforming NEPA to better serve the
administrative functions of a land management agency under a statutory
scheme designed to avoid repetitive analysis at significant cost but
little benefit. Simply put, if the Forest Service is to be funded to
continue the comprehensive and interdisciplinary Forest Planning
process with its extensive public involvement and supporting EIS, the
resulting product must be deemed statutorily sufficient to meet NEPA
for all actions conforming with the plan or, at a minimum, significant
limitations should be placed on additional analysis.
Congress Should Review the Extent to which Other Laws Have Impeded the
Management of the National Forests for Multiple Use Purposes
Congress has followed a consistent and logical path in its
management direction over the century, first providing successively for
protection (Organic Act of 1897), general management standards (MUSYA
of 1960) and ultimately comprehensive land management planning (NFMA of
1976). Second, Congress has delegated to the Forest Service the broad
latitude to determine which combination of uses under the Multiple-Use
Sustained-Yield mandate best meet the needs of the public. Third,
Congress expects such multiple use decisions to be guided by input
received in the very public land management planning process.
The ability of the Forest Service to continue its legacy of wise
and balanced management of public lands has been placed at risk by a
number of factors, especially the rapid development of private lands.
From the panhandle of Florida to the upper piedmont of South Carolina,
the desert southwest and the intermountain west, the story is the same.
Explosive commercial growth is coupled with sprawling private home
development. I understand that a Forest Service study released in the
past few weeks on forests land status in the southeastern United States
details this problem. The loss of undeveloped land has resulted in
increasingly stringent restrictions on National Forest System lands
designed to protect individual wildlife species, many of which are
listed species under the ESA. Inflexible by statutory construction, the
ESA has dictated land management decisions on millions of acres.
In the Pacific Northwest National Forest lands are expected to
support surviving populations of the Northern Spotted Owl, yet there is
relatively little restriction of private or state lands. The same is
true of the Red Cockaded Woodpecker in the southeast. Further, many of
the same National Forests supporting the Owl are also under restriction
to support salmon populations listed under the ESA. In each case the
demise of the species was not the primary result of activities on the
National Forests. General land development coupled with timber
harvesting on private, state and BLM's ``O and C'' lands far exceeded
the impacts of harvesting on the National Forests in the case of the
Northern Spotted Owl. Over fishing, timber harvesting and particularly
dam construction have vastly reduced many species of salmon.
Nevertheless, rather than seeking a broad remedy, there has been a
misallocation of the burden of species protection to the National
Forests.
Some have referred to broad scale plans to protect individual
species as outstanding examples of ``ecosystem management''. I
disagree. I have had the opportunity to review the work of Forest
Service scientist Dr. Robert Bailey who developed an ecosystem map for
the whole of the nation, an 8'' by 11'' copy of which is included as an
attachment to my testimony. In Forest Service Miscellaneous Publication
No. 1391 entitled Description of the Ecoregions of the United States
(1996) compiled by Dr. Bailey, the ecoregions depicted tended to follow
landforms, climate, soil, vegetative types and fauna. However, when the
broad scale management prescriptions dictated by the ESA for various
individual species located on National Forest System lands are placed
as overlays to the ecoregions described by Dr. Bailey, one observes
little, if any, correlation. In other words, the one size fits all
management direction for single species protection seems to ignore the
very basis of ecosystem integrity.
Dr. Bailey has also prepared a map overlaying individual National
Forests on an ecoregion map which I am providing to the Committee along
with a copy of Publication No. 1391.
Let me be clear that I strongly support the goals of the ESA.
However, the time has come to study and revise the ESA to encompass
more tools and greater flexibility for species preservation. Relying
solely on the path of least resistance--the conversion of National
Forests at their random locations to narrow management goals will
likely not suffice in the long term to adequately protect many
endangered species. Congress should address the conversion of multiple
use lands to limited use resulting from undue reliance on the National
Forests for ESA purposes.
CEQ Should Develop Regulations For All Federal Agencies Harmonizing
Environmental Statutes
Under the National Environmental Policy Act of 1969, the Council of
Environmental Quality (CEQ) is charged in Section 204 with the
responsibility ``to review and appraise the various programs and
activities of the Federal Government'' and ``to develop and recommend
to the President national policies to foster and promote the
improvement of environmental quality.
Implementing regulations for the National Environmental Policy Act
were promulgated in 1978 and may be found at 40 CFR Parts 1500-1508.
These regulations were well drafted, have withstood the test of time
and continue to provide a firm base for the implementation and
interpretation of the Act. However, with a quarter of a century of
experience for guidance, the enactment and amendment of numerous other
environmental laws and the development of case law on environmental
statutes it should come as no surprise that there is now a definitive
need to supplement CEQ's existing regulations.
CEQ should be requested to address opportunities for harmonizing
the procedural aspects of the nation's environmental statutes for all
federal agencies and to develop uniform requirements for coordination
of NEPA, ESA, the Clean Air Act, the Clean Water Act and other
principal statutes. Many issues can be addressed by federal regulations
which should be accorded deference by federal courts. However, should
CEQ determine after careful study that the effective and efficient
coordination of the multitude of environmental statutes exceeds its
regulatory authority, CEQ is authorized under Section 201 of NEPA to
make recommendations for legislation.
CEQ Should Develop Supplemental Regulations Addressing the Particular
Problems of Federal Land Management Agencies
Federal land management agencies are faced with unique difficulties
far greater than those federal agencies that merely fund projects in
complying with NEPA, ESA and other environmental statutes. A classic
example is that NEPA is drafted principally to apply to a site-specific
project at a single point in time rather than to encompass the
responsibilities of land management administering vast acreages over
decades. Virtually every management action arguably requires NEPA
compliance and may require revision of NEPA analysis already performed
for on going activities. Attempts to address ecosystem problems
involving multiple National Forests and numerous wildlife species
increases the risk that evolving scientific information will invalidate
the premises on which the NEPA analysis was based, thereby exposing the
land management agency to the possibility of an injunction covering
thousands of acres. The Forest Service attempted four EISs before
passing judicial muster on the protection of the Northern Spotted Owl.
The greatest difficulty faced by the agency was the continually
evolving scientific opinion on protective requirements for the owl
which outdated the detailed NFMA and NEPA processes before they could
be completed.
Further, compliance with one environmental statute may place the
federal agency in violation of another. A constant tension exits for
land management agencies in the interface between NEPA, ESA and NFMA in
the case of the Forest Service. A common predicament for the Forest
Service is that the implementation of wildlife protection measures in
compliance with ESA may require amendment or revision of NFMA plans and
supporting NEPA compliance, a process which requires months to
complete.
The rebalancing of multiple use activities resulting from the
revision of forest plans precipitated by ESA protections may affect
some of the assumptions on which ESA protections of the same or other
species were based. Likewise the updating of forest plans now passing
the 15 year life established by NFMA may trigger new or revised ESA
protective requirements. One federal land management agency, faced with
the same complexities, once argued in federal court that no ESA
protections could be implemented until NEPA compliance was completed.
Supplemental CEQ regulations are needed to address problems unique to
the Forest Service, the Bureau of Land Management and other land
management agencies. Again, should CEQ determine that regulatory
remedies are inadequate, legislation can be recommended.
Congress Should Review the Cumulative Effects of Multiple Public
Involvement Statutes in order to Streamline Process and
Eliminate Duplication
There is no dispute that public involvement substantially improves
the quality of agency land management decisions and develops public
support and understanding of forest management. Congress provided for
comprehensive public involvement in the development of forest plans in
the National Forest Management Act of 1976. By terms of NFMA, plans are
to be developed by an interdisciplinary team, made available to the
public three months in advance, and the Secretary is to provide for
public meetings and other measures that foster public participation, to
list only some of the public involvement required.
Further, in a partially redundant requirement, Section 6 of NFMA
requires that land management plans are to be developed in accordance
with the National Environmental Policy Act which has resulted in the
preparation of an Environmental Impact Statement for each forest plan.
In addition to a comprehensive EIS on the Forest Plan, the agency has
also found it necessary in order to pass judicial muster to prepare
individual EISs and EAs on many projects to be carried out in the
planning area, together with EIS's on multi-forest initiatives.
Implementation of protective measures for species listed as endangered
under the ESA also generally requires amendment or revision of EISs on
multiple Forests. Broad scale natural disasters, fires, new scientific
information or the listing of an Endangered Species may suddenly
outdate forest plans and supporting EISs.
In obtaining regular advice and public input from local or national
organizations in a collaborative fashion, the Forest Service is well
advised to comply with the any procedural and notice requirements of
the Federal Advisory Committee Act. In addition, the Forest Service has
historically provided the public with a relatively formalized
administrative appeal process, certain elements of which are now a
statutory requirement. Of course, following the exhaustion of
administrative remedies, full judicial review of policy decisions made
with extensive public input is available.
This combination of all of the above aspects of public notice and
involvement, planning and analysis, administrative appeal and judicial
review for virtually every project or activity on the National Forests
results from an unfortunate layering of individually worthwhile
statutes. Too much of a good thing has led to a waste of public
resources and agency paralysis. The recent proposal of the Forest
Service to shorten the administrative appeal process on the treatment
of fire damaged timber on the Bitterroot National Forest is a prime
example of an attempt by the agency to cut through a multi-layered
public involvement process which impedes timely resource management
activities.
Currently there seems to be great interest in ``collaborative''
public process. Legislative adoption of some form of collaborative
process should be considered only if some existing forms of public
involvement are dropped. Each type of public process has its dedicated
constituency, thus it is a task for Congress to design efficient public
process by selecting some, but not all, forms of public involvement.
Options include a simplification of the planning process, the
restriction or elimination of the administrative appeal process and a
narrowing of the scope of judicial review.
Forest Planning Demands Simplification Before Expenditure of Public
Funds on Another Round of Land Management Plans.
Over fifty Forest plans are now beyond the 15 year statutory limit
imposed by NFMA at 16 U.S.C. 1604(f)(5). A legal morass awaits
challenged project actions on overdue plans. Recently promulgated
planning regulations are unduly complicated, confusing and far exceed
the administrative capability of the Forest Service as currently
staffed and funded.
The agency needs legislative relief in the form of a moratorium,
for which there is precedent, to complete updated forest plans. Equally
important the Forest Service must recognize that the planning process
must be vastly simplified to conform to its limited staff and budget.
I suggest that the Committee obtain a current report from the
Forest Service on the status of the Land and Resource Management Plan
on each Forest including the projected date of completion of the second
generation plan together with an estimate of the cost of completing the
plan and EIS under the current regulation. I believe this data will
graphically demonstrate the need for a prompt overhaul and
simplification of the planning process by displaying a disconnect
between the agency budget, the resources necessary to complete the
planning process and the relative benefits of generating an excessively
expensive planning document which will do little to improve
environmental quality, forest management or to provide services to the
public.
The Forest Service Should Undertake a Comprehensive Review of its
Regulations and Policies Beginning with the Land and Resource
Planning Regulations with the Objective of Vastly Reducing its
Administrative Requirements.
From its inception the Forest Service has been one of the finest
administrative agencies in the federal government. However, in the
agency's zeal and dedication to the highest standards of land
management it has often promulgated regulations and policies that
establish goals which are extremely difficult to attain. Judicial
decisions have often tended to treat these goals as mandatory rather
than policy objectives.
A ready example may be found in the initial version of land and
resource planning regulations in which the Forest Service expansively
translated the NFMA direction to develop guidelines to achieve the goal
of providing ``diversity of plant and animal communities'' for the
purpose of meeting multiple use objectives into a requirement to
maintain the ``viability'' of all vertebrate species. This most
laudable objective has been judicially interpreted by some courts to
require extensive protective requirements and development of species
population data which are beyond the practical capability of the
agency. This is not to suggest that the Forest Service should retreat
from its efforts to protect wildlife values, but simply avoid turning
goals into mandatory legal requirements which promote litigation.
The Forest Service should be directed to review, scale back and
simplify the many self-imposed administrative burdens which have
accumulated over the years in its land and resource planning
regulations, administrative appeal procedures and other management
activities to reflect more accurately the current staffing and
capabilities of the agency. I understand that Chief Bosworth has
initiated such a review. It may be that cost estimates of various
elements of current regulatory requirements would be helpful in this
endeavor and that Congressional direction will ultimately be necessary
to prune excess procedures which have become well accepted.
CONCLUSION
One final observation--many citizens of varying persuasions have
recognized the need to streamline National Forest System management. I
question whether mere tinkering with the National Forest Management Act
would suffice to substantially improve the process. Some mechanism must
be found to integrate the many environmental statutes which vitally
affect the planning process, principally the National Environmental
Policy Act and the Endangered Species Act. Without a unified approach,
the agency will forever be unable to meet its statutory duties under
those acts in a timely and cost effective manner. Further, both the
Forest Service and the Congress must act to radically simplify
management direction.
With little progress having been made recently on the legislative
front, perhaps it is time to consider an approach similar to the Public
Land Law Review Commission to build a base of public understanding and
compromise on future legislation while assuaging the concern felt by
some that review and revision may result in the loss of environmental
protections
Thank you for this opportunity to testify.
______
[An attachment to Mr. Perry's statement follows:]
[GRAPHIC] [TIFF OMITTED] 76448.001
Mr. Peterson. Yes. We thank you both for your good
testimony.
Mr. Lawrence, you spoke quite eloquently of what kind of
timbering and what kind of processes you thought the Forest
Service should get into or not get into. I guess I would--I was
looking at your resume, and you taught auto mechanics, you
taught philosophy, and then you went to law school. Where did
you get your natural resources education?
Mr. Lawrence. Well, I went to law school when I saw what
was happening to the national forests around me where I spent
most of my weekends and vacation time. My education about
natural resource issues has come since I graduated from law
school and specialized in natural resource issues.
Mr. Peterson. So you have learned it in the courtroom?
Mr. Lawrence. Not so much, but some. I would say I owe a
great deal to scientists like Jack Thomas and his colleagues,
who often are very generous with their time in talking through
what we do and don't know about the consequences of forest
management.
Mr. Peterson. What kind of things did you see in the
mismanagement of the forests you spoke of that attracted you
into this field?
Mr. Lawrence. I saw an explosion of clear-cutting in the
Pacific and the Northwest starting in the latter part of the
1970's and into the early 1980's. When I first started climbing
mountains in Oregon, you could stand on top of mountains and
look as far as the eye could see and not find clear-cut, And by
the time I went to law school it was a crazy quilt of clear-
cuts, a much, much altered landscape, one in which the public
values and the things that the people that I knew in Oregon who
treasured the natural forests for really were disappearing
pell-mell.
Mr. Peterson. Mr. Udall talked about employing pilot
projects to test new methods and guarantee governing structures
for forest management. Do you support pilot projects?
Mr. Lawrence. I think it is a good idea to take a look at
alternative ways to manage national forests. It is difficult to
endorse pilot projects without any specifics. I think a lot of
different--details make all of the difference.
Mr. Peterson. We are assuming good pilot projects, not--.
Mr. Lawrence. I am all in favor of good stuff, including
good pilot projects.
Mr. Peterson. Do you think there is excessive litigation
interfering with the Forest Service management?
Mr. Lawrence. I think that that Forest Service draws a lot
of litigation. I think that the Forest Service sometimes does
what it can to avoid litigation and sometimes it chooses not
to. I think it runs head on into it. And again, I think that
much of the answer to getting on with the legitimate business
of managing national forests really lies in the agencies
choosing less controversial places and less controversial
practices for what it does.
That is not a complete answer.
Mr. Peterson. But it would be better if they just didn't
cut down trees, period?
Mr. Lawrence. That is certainly not my position. It is not
the position of the majority of environmentalists that I work
with.
Mr. Peterson. But you spoke of thinning only small trees,
no mature trees.
Mr. Lawrence. Well, I think that there are two--there are
many different kinds of thinning. Thinning is sometimes done
for truly silvicultural reasons, to enhance the size, the value
and the growth rate of residual timber. That is a commercial
practice, and that is not what you are hearing we need to
streamline processes for to get done in a hurry.
What you hear we need to streamline processes for is what
is portrayed as a pandemic forest health problem across many
tens of millions of acres of national forest lands which has to
be addressed through thinning. My point about that is that from
a scientific standpoint the thinning that we may be successful
doing focuses on the trees that post-dates disturbance of fire
regimes, and those are small trees, whereas commercial logging
focuses on medium and large trees, which are part of the
solution, not part of the answer, and need to be left behind
when we are doing thinning for restoration purposes.
Mr. Peterson. But large trees should be left to die a
natural death?
Mr. Lawrence. When we are trying to restore forest health,
when we are trying to reduce the intensity of forest fires, and
when we are trying to protect our communities, we have no
business taking out medium and large-sized trees.
Mr. Peterson. Just interested for your thoughts.
Ms. McCollum. Thank you, Mr. Chair. It is always
interesting to hear Hubert Humphrey being quoted, being from
Minnesota and having just spent some time with former Vice
President Mondale. I am saying that quite often, Hubert
Humphrey's words about logging in effect and his goals with
some of the legislation he supported being misquoted, and you
were very accurate in quoting him, Mr. Perry. So I appreciate
that.
If I understood your comments on thinning, Mr. Lawrence,
correctly, you were not opposed to logging; is that correct?
Mr. Lawrence. That is correct.
Ms. McCollum. And when it comes to thinning we need to look
at why we are doing it, the cause and the effect, and we need
to do some scientific research working with the Forest Service
to find out exactly what does go on after a forest fire in
areas where there has been thinning done; in other words,
document the thinning, what slash was left behind, and then
take factors of weather condition in and then do a cause and
effect of what the thinning had on the forest fire using
scientific evidence and really starting to record and log that.
Did I hear you correctly?
Mr. Lawrence. That is absolutely correct.
Ms. McCollum. Thank you.
Mr. Peterson. I might just do a follow-up there. You were
talking about no medium or large trees. But, I guess--which
raises a problem as I see it. I come from the hardwood forests
in the East which have no relationship to softwood forests. In
you only cut down small trees there is no value, so now you
have to really appropriate a lot of money. And you talk about
timber sale losses. That is one of the reasons that the Forest
Service has a loss that they are timbering because they don't
cut trees that are of any value or of very much value very
often, and so--which normally pays for the cost of the
thinning.
You put some value in there when--I have a few plots of
timber on my own, small. And when we thin, sometimes we--I just
thinned 30 acres, and we just sold enough value to make it a
non-loss sale to pay for the thinning because it was a young
forest that was too thick and had a lot of undesirable species,
as far as I am concerned, and we thinned, and today it is much
healthier. But we had to sell a few good trees to pay for the
cost of thinning it. So I mean, if you never cut a medium or
large-sized tree then your thinning becomes a very expensive
procedure.
Would you respond to that?
Mr. Lawrence. Well, the Forest Service has lost money on a
whole variety of different kinds of timber sales, including
clear-cutting virgin old growth rain forest. I think that that
presents one set of issues, and whether we are going to pay to
do the kind of restoration thinning that has the best chance of
dealing with fire risk problems is another question.
You won't find my organization objecting to this Congress
or the Forest Service spending money to try to do thinning in a
way that is most likely to address what after all are very
expensive forest fire problems and to reduce the costs,
economic, environmental and human, of firefighting.
Mr. Peterson. Because I don't think any of us will argue
that when you have a hot fire what it leaves behind is pretty
nasty for a long time, and nature certainly does not win.
Mr. Udall from New Mexico.
Mr. Tom Udall. Thank you, Mr. Chairman.
I think you were both here when I asked the two chiefs
about collaboration and pilot projects. And could you both--I
know the Chairman asked one of you, but could you both just
tell me what your thoughts are on that kind of approach and
putting forward a piece of legislation like that?
Mr. Perry. I have two concerns about collaborative public
process. The first is if it becomes merely another layer on the
very substantial layers that we have now, then it only slows
down further the ability to accomplish any goal.
I think collaboration, if incorporated into the statutory
scheme, should then in the same statute drop out perhaps
administrative appeal. In fact, it should perhaps bind all of
the participants to live with the ultimate decision of the
collaborators. What we don't need is yet another process which
is going to add a year or two to the decisionmaking time.
The second concern I have is that very often the
collaborationists in their zeal come up with a management
scheme which is much more costly than that that would be
devoted to other national forest lands. As a result, it draws
off the funds into the area of collaboration.
So with those two caveats, I think we should proceed with
some pilot projects and see if we can't improve the overall
management scheme.
Mr. Lawrence. Congressman Udall, I don't have the benefit
of having seen your letter to the Chief. I will take a look at
that and think more concretely about it.
Again, let me say I think inherently, if we are talking
about good pilot projects here, that they are worth pursuing. I
think it is difficult to define what a good pilot project might
be, and the record on collaboration has been kind of spotty. I
do think that there are things that Forest Service can do
within the existing planning process to act more
collaboratively and to encourage participation and to create
more buy-in among the public.
Most notably, I think it is often the case that people who
are very involved in Forest Service administrative processes
and commenting on management activities feel that the decisions
that the Forest Service is considering or the alternatives it
has got in its environmental documentation don't really
represent what they think makes the most sense.
They don't have a horse in the race. That is by no means
always the case, and indeed there is an excellent counter
example recently on the Santa Fe National Forest in your State,
where the Santa Fe National Forest supervisor adopted an
alternative for the Santa Fe watershed which was suggested by a
citizen group.
But it does happen, but it is all too often the case that
the ordinary NEPA processes that the Forest Service runs leaves
people feeling disenfranchised even before the outcome, and I
think that people are much more susceptible to accepting the
outcome of processes if they think their idea has got a fair
shake in it.
Mr. Tom Udall. Mr. Lawrence, as I understand it, your view
is that there would be less controversy about the national fire
plan if the fuel reduction work was concentrated in the
immediate urban interface area. Is that a fair
characterization?
Mr. Lawrence. I think there would be less delay. I think it
would be easier to do relatively straightforward, simply NEPA
documentation for that, and I think there would be far less
litigation. It would be going overboard to say there would be
no controversy, particularly because those kinds of decisions
are going to implicate local land use concerns.
So it not going to be controversy free, but I think it is
going to be much faster. It is certainly the case that once you
leave the immediate urban-wildland interface and move out into
the general forest, that activities, thinning activities, which
focus on small diameter trees and stay out of undeveloped,
unrouted areas and sensitive zones like riparian areas are far
less likely to be challenged and delayed.
Mr. Tom Udall. Mr. Perry, you say in your statement, I
think on page 5, that one of the factors that is--I am down
about three paragraphs--is that the Forest Service to continue
its legacy of wise and balanced management of public lands has
been placed at risk by a number of factors, especially the
rapid development of private lands. And then you mentioned
sprawl a little later on.
It seems to me that the development of private lands, the
way you are talking about has put more pressure on public lands
and isn't what we need to get out of this process--is both have
the Endangered Species Act being funded in a way that the
Federal Government can work with private landowners so they can
recognize an obligation there, and then, second, do something
about the sprawl itself, which is causing all of the problems
there.
Mr. Perry. I would agree with both. I have traveled a great
deal here in the last few years since retirement. No matter
what corner of the country I have been in the urban sprawl and
commercial development is tremendous, and we need to be able to
restrain that. Otherwise the entire burden of species
protection falls on the Federal lands. And unfortunately it
falls along the line of least resistance. We sort of assume
that the endangered species would like to live in precisely the
administrative boundaries of the national forests when really
the species may require much broader protection and the
incorporation of private lands into the protective scheme. Of
course that is going to require some budget.
Mr. Tom Udall. Thank you both, and thank you, Mr. Chairman.
Mr. Peterson. I might just make a comment to the sprawl
issue, because there is something else happening that a lot of
people are not aware of. In Pennsylvania alone, 20 years ago,
we had 14 million acres of commercial forest in Pennsylvania.
Today we have 18 million acres of commercial forest in
Pennsylvania.
How does that happen? Well, that is happening throughout
much of the northern part of this country, because farmland is
going back to forest.
I hunt on farmland where it is--a forest that is starting
to develop some value. When I was a kid, it was open meadows,
brush, some thorn brush and some wooded trees starting to grow,
but today it is solid forest.
That is happening all over. So 3 million acres of
additional Pennsylvania is commercial grade forest. If you
added low quality forest, you could probably say we have gained
5 or 6 million acres, according to the foresters that I have
talked to.
So while we do have urban sprawl, one of the problems we
have is the policies on rural America we have to live with. We
are chasing all activity out of the rural areas. People have to
go to the urban areas to make a living, to make a good salary.
So that is causing the urban sprawl. The decline of rural
America is the reason that we have urban sprawl, because you
can't make a living out there doing anything, because people
don't want you to do most of what we used to do there.
Final question I would like to ask is, Mr. Perry, the
primary reason that the Forest Services becomes so caught up in
process and paperwork is the rampant paranoia about appeals and
litigation.
What would you recommend to Congress and what would you
recommend to the Forest Service?
Mr. Perry. To the Forest Service I would recommend that
they go through their administrative process and shear out much
of the complicated planning and administrative appeal process
that they have put together. I think Chief Bosworth has already
made one initiative in that area along those lines.
For the Congress, I think we really need to think about
scaling back the amount of processes that the Forest Service
faces. I think there is a significant disconnect between the
ability of the Forest Service to produce these massive forest
plans and the accompanying EIS's. If you were to ask the Forest
Service to produce a cost estimate of how much it is going to
take to fund these plans, how long it is going to take to
produce them and then look at the Forest Service budget, I
think there would be a complete disconnect.
Mr. Peterson. I think if you put all of our economy in the
same process, paperwork process, that we have put them into, we
wouldn't have any of the new inventions or any of the new
things we enjoy today because the process would stop change.
Mr. Lawrence, do you want to react to that issue?
Mr. Lawrence. You know, I think I have said most of what I
have to say about this. Let me just say this about the appeals
process, which I hear often blamed as delaying Forest Service
activity. The Forest Service's appeal process is really very
short. It entails 45 days to get documents and analyze
documents. Often that is time that is completely chewed up by
trying to get the agency to disgorge things in its records
through the FOIA process.
Thereafter the only other time constraint is how long it
takes to make its decision about the appeal, followed by a 15-
day waiting period. So this is a process that can last weeks,
not years.
When you are talking about very urgent activity that needs
to be undertaken on an emergency basis, sometimes that is too
long. The regulations allow for emergency exemptions from stay.
Otherwise, you are talking about the time that is built in,
a very short time, built in at the front of every project which
in the beginning takes a little time to get past, but once you
got past that and started priming the pipeline with projects,
doesn't delay the pipeline at all. It is just something, a
little few weeks at the very beginning of the pipeline, and
thereafter all projects that are waiting for the appeals
process to run are behind projects that have already been
through that process.
So I think that is really a red herring. That is a bad
thing for Congress to focus on.
Mr. Peterson. But I do think the Forest Service and other
agencies spend all of their time trying to make decisions
litigation proof, and of course you can't. And when they try to
do that, that is what takes--but let me just conclude with
this. Most of the lawsuits in my region are inspired by
national groups, maybe such as yours, that have college
students as employees on a part-time basis who file lawsuits,
who get a pro bono lawyer from a local university, costs them
nothing, they invest nothing, they are not a part of the
system, they are in school learning education. And how does
that fare?
I mean, I have not had a lawsuit yet from a group of
concerned citizens who really saw what was going on and are
really concerned about the degradation of the forest or the new
policy or the new type of recreation there. I mean, we have
national organizations, well funded, that hire college kids to
stop the process.
And some of those college kids 10 or 15 years later admit
they are wrong. I am working with one now that was part of that
process. He was wrong. He realized it was wrong. He was used.
That is the process we are dealing with that stops us, and
I haven't seen a legitimate--what I would call a legitimate
lawsuit by citizens who personally cared about the land.
Would you like to respond to that?
Mr. Lawrence. Well, I can respond for myself, from my
organization. You know, while it is undoubtedly true that when
I was a college student I did things that were wrong, I didn't
file timber sale appeals or litigation. I don't think it is
totally beside the point that the last four lawsuits that I
have filed papers in I have been defending the Forest Service,
not suing it.
Some of those cases the Forest Service hasn't really shown
up to defend. I think that there is undoubtedly in the
litigation process some miscarriage of justice and some
slippage. There is no question about that.
I think that is fundamental to our American way of
government. I think that the right of citizens to seek redress
in the courts, grievances against the government is something
that is so fundamental to what be believe is the right way to
conduct our public affairs that we accept and understand, and
not just over Forest Service activities but over every aspects
of our lives, public and private.
There will be some misuse of the court system , and I don't
have an answer to that. I don't think that doing away with
litigation is an answer. I do think there is some comfort in
this, that when you get to court, if you are going to stop an
activity, you have got to persuade a judge that you are likely
to prevail and that you are going to suffer some sort of really
serious harm if you don't get an injunction.
That is a serious hurdle to get over. It is not something
that--you don't just show up at the court and stop activity. So
there is some--there are some safeguards built into the system.
But, again, there is nothing unique about Forest Service
management activities in this regard. This is part of the
American way of life.
Mr. Peterson. But the litigation process has huge delays.
Those cases don't get heard sometimes for months and months and
months. So you lose a year, you lose 6 months, you lose another
year, and so the process does really have really huge impacts
while you are waiting on the courts to deal with it.
Mr. Lawrence. I don't want to try to defend every aspect of
litigation. But normally when you get a preliminary injunction,
courts thereafter treat your case on an expedited basis.
Mr. Peterson. I don't want to pick on you, but I have been
in the business world for 26 years, I have been in government
longer than that at local, State and Federal. When I want to
get decisions, I usually try to get all of the lawyers out of
the room so we can make a policy decision and then let them
argue about it, because you have all been taught to litigate,
question, delay. That is part of the process.
I want to thank the witnesses on the second panel for their
insights and the Members for their questions. The Members of
the Subcommittee may have some additional questions for the
witnesses. We ask you to respond to those in writing.
The hearing record will be held open for 10 days for those
responses. If we have no further business before this
Subcommittee, I want to thank the Members of the Subcommittee
and our witnesses. This Subcommittee stands adjourned.
[Whereupon, at 5:15 p.m., the Subcommittee was adjourned.]
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