[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



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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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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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