[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
H.R. 2907 AND H.R. 3247
=======================================================================
LEGISLATIVE HEARING
before the
SUBCOMMITTEE ON FORESTS AND
FOREST HEALTH
of the
COMMITTEE ON RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
__________
Tuesday, October 21, 2003
__________
Serial No. 108-70
__________
Printed for the use of the Committee on Resources
Available via the World Wide Web: http://www.access.gpo.gov/congress/
house
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Committee address: http://resourcescommittee.house.gov
______
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COMMITTEE ON RESOURCES
RICHARD W. POMBO, California, Chairman
NICK J. RAHALL II, West Virginia, Ranking Democrat Member
Don Young, Alaska Dale E. Kildee, Michigan
W.J. ``Billy'' Tauzin, Louisiana Eni F.H. Faleomavaega, American
Jim Saxton, New Jersey Samoa
Elton Gallegly, California Neil Abercrombie, Hawaii
John J. Duncan, Jr., Tennessee Solomon P. Ortiz, Texas
Wayne T. Gilchrest, Maryland Frank Pallone, Jr., New Jersey
Ken Calvert, California Calvin M. Dooley, California
Scott McInnis, Colorado Donna M. Christensen, Virgin
Barbara Cubin, Wyoming Islands
George Radanovich, California Ron Kind, Wisconsin
Walter B. Jones, Jr., North Jay Inslee, Washington
Carolina Grace F. Napolitano, California
Chris Cannon, Utah Tom Udall, New Mexico
John E. Peterson, Pennsylvania Mark Udall, Colorado
Jim Gibbons, Nevada, Anibal Acevedo-Vila, Puerto Rico
Vice Chairman Brad Carson, Oklahoma
Mark E. Souder, Indiana Raul M. Grijalva, Arizona
Greg Walden, Oregon Dennis A. Cardoza, California
Thomas G. Tancredo, Colorado Madeleine Z. Bordallo, Guam
J.D. Hayworth, Arizona George Miller, California
Tom Osborne, Nebraska Edward J. Markey, Massachusetts
Jeff Flake, Arizona Ruben Hinojosa, Texas
Dennis R. Rehberg, Montana Ciro D. Rodriguez, Texas
Rick Renzi, Arizona Joe Baca, California
Tom Cole, Oklahoma Betty McCollum, Minnesota
Stevan Pearce, New Mexico
Rob Bishop, Utah
Devin Nunes, California
Randy Neugebauer, Texas
Steven J. Ding, Chief of Staff
Lisa Pittman, Chief Counsel
James H. Zoia, Democrat Staff Director
Jeffrey P. Petrich, Democrat Chief Counsel
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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
Walter B. Jones, Jr., North Tom Udall, New Mexico
Carolina Mark Udall, Colorado
John E. Peterson, Pennsylvania Anibal Acevedo-Vila, Puerto Rico
Thomas G. Tancredo, Colorado Brad Carson, Oklahoma
J.D. Hayworth, Arizona Betty McCollum, Minnesota
Jeff Flake, Arizona VACANCY
Dennis R. Rehberg, Montana VACANCY
Rick Renzi, Arizona Nick J. Rahall II, West Virginia,
Stevan Pearce, New Mexico ex officio
Richard W. Pombo, California, ex
officio
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C O N T E N T S
----------
Page
Hearing held on Tuesday, October 21, 2003........................ 1
Statement of Members:
Hayworth, Hon. J.D., a Representative in Congress from the
State of Arizona........................................... 4
Prepared statement on H.R. 2907.......................... 5
Inslee, Hon. Jay, a Representative in Congress from the State
of Washington.............................................. 4
Renzi, Hon. Rick, a Representative in Congress from the State
of Arizona................................................. 1
Prepared statement on H.R. 2907.......................... 3
Tancredo, Hon. Thomas G., a Representative in Congress from
the State of Colorado...................................... 32
Prepared statement on H.R. 3247.......................... 33
Udall, Hon. Mark, a Representative in Congress from the State
of Colorado................................................ 34
Rocky Mountain News article submitted for the record..... 35
Statement of Witnesses:
Dickinson, Hon. Mitch, Mayor, Town of Camp Verde............. 9
Prepared statement on H.R. 2907.......................... 11
Groseta, Peter Andrew ``Andy,'' Owner, W Dart Ranch, dba,
Groseta Ranches, LLC....................................... 13
Prepared statement on H.R. 2907.......................... 16
Jenkins, David, Director of Conservation and Public Policy,
American Canoe Association................................. 41
Prepared statement on H.R. 3247.......................... 43
Parkinson, Larry R., Deputy Assistant Secretary, Law
Enforcement and Security, U.S. Department of the Interior.. 36
Prepared statement on H.R. 3247.......................... 37
Rey, Hon. Mark, Under Secretary, Natural Resources and
Environment, U.S. Department of Agriculture................ 6
Prepared statement on H.R. 2907 and H.R. 3247............ 7
Oral statement on H.R. 3247.............................. 36
Roder, Aileen, Program Director, Taxpayers for Common Sense.. 17
Prepared statement on H.R. 2907.......................... 19
Smith, Larry, Executive Director, Americans for Responsible
Recreational Access........................................ 38
Prepared statement on H.R. 3247.......................... 40
Additional materials supplied:
U.S. Department of Justice, Letter submitted for the record
on H.R. 3247............................................... 55
LEGISLATIVE HEARING ON H.R. 2907, TO PROVIDE FOR A LAND EXCHANGE IN THE
STATE OF ARIZONA BETWEEN THE SECRETARY OF AGRICULTURE AND YAVAPAI RANCH
LIMITED PARTNERSHIP; AND H.R. 3247, TO PROVIDE CONSISTENT ENFORCEMENT
AUTHORITY TO THE BUREAU OF LAND MANAGEMENT, THE NATIONAL PARK SERVICE,
THE UNITED STATES FISH AND WILDLIFE SERVICE, AND THE PROTECTION OF
PUBLIC LANDS UNDER THE JURISDICTION OF THESE AGENCIES, TO CLARIFY THE
PURPOSES FOR WHICH COLLECTED FINES MAY BE USED, AND FOR OTHER PURPOSES.
----------
Tuesday, October 21, 2003
U.S. House of Representatives
Subcommittee on Forests and Forest Health
Committee on Resources
Washington, DC
----------
The Subcommittee met, pursuant to notice, at 10:03 a.m., in
Room 1334, Longworth House Office Building, Hon. Rick Renzi,
presiding.
Present: Representatives Renzi, Duncan, Tancredo, Hayworth,
Flake, Pearce, Inslee, Kildee, Tom Udall of New Mexico, and
Mark Udall of Colorado.
STATEMENT OF HON. RICK RENZI, A REPRESENTATIVE IN CONGRESS FROM
THE STATE OF ARIZONA
Mr. Renzi. Good morning. The Subcommittee on Forests and
Forest Health will come to order. The Subcommittee is meeting
today to hear testimony on H.R. 2907, the Northern Arizona
National Forest Land Exchange Act of 2003, and H.R. 3247, the
Trail Responsibility and Accountability for the Improvement of
Lands Act of 2003.
Under Committee rule 4(g), the Chairman and the Ranking
Minority Member may make opening statements. If any other
member has statements, they may be included in the hearing
record under unanimous consent.
Members of the Subcommittee, I appreciate the
Subcommittee's consideration of my bill, H.R. 2907, the
Northern Arizona National Forest Land Exchange Act of 2003.
H.R. 2907 facilitates a land exchange in Northern Arizona of
private land within the Yavapai Ranch for Forest Service land
in the northern portion of the State.
Mr. Renzi. I would like to recognize local representatives
in the First District of Arizona, including the Mayor of Camp
Verde, Mitch Dickinson, the Mayor of Clarkdale, Mike Bluff, and
the Mayor of Cottonwood, Ruben Jauregui.
H.R. 2907 accomplishes several goals in Northern Arizona.
First, it will preserve the pristine areas within the Yavapai
Ranch for the wildlife and recreation purposes. Second, H.R.
2907 provides the City of Flagstaff with the opportunity to
acquire land to expand and improve Pulliam Airport. H.R. 2907
will allow the City of Flagstaff to develop a new city park and
recreational areas and obtain ownership of land near their
water treatment plant. This is critical to the City of
Flagstaff's future by providing economic development and
affordable housing.
The Northern Arizona National Forest Land Exchange Act will
also allow the City of Williams to acquire land for its well
sites, water storage tanks, and wastewater facilities and
drinking water treatment plants. Until recently, the City of
Williams relied completely on surface water supplies to service
the community. However, surface water reservoirs in Williams
are currently at a minimal 8 percent of capacity. H.R. 2907
will assist Williams in meeting their water challenges in the
future, providing new land for well drilling sites.
In the Verde Valley, this bill provides the Town of Camp
Verde with a unique opportunity to acquire lands for open space
to protect their view shed. The Camp Verde Fire District will
be provided with land adjacent to Interstate 17 for an
emergency response and urgent care facility for faster
response. A planned development along I-17 will provide Camp
Verde with additional tax base and job opportunities.
A residential development in Clarkdale and Cottonwood will
diversify the housing market and provide new lands for their
tax base. I am assured that language in H.R. 2907 ensures that
water conservation and water use restrictions must be met for
any future development. In addition, any development must also
comply with the State of Arizona's surface and groundwater
laws, as well as local community planning standards.
Finally, this legislation ensures that six summer youth
camps, serving between 6,000 and 8,000 children per year, have
the opportunity to acquire the land and benefit from full
ownership and management of this land. Included in this
exchange are YoungLife Lost Canyon Camp, Friendly Pines Camp,
YMCA Sky-Y Camp, Pine Summit Camp, Temple Beth Israel's Camp
Charles Pearlstein, and the Roman Catholic Church of Phoenix
Patterdale Pines Camp.
In the past few months, I have received many letters and
phone calls providing input and information on this exchange. I
have also held several town halls and town meetings in the
districts to discus many complex issues surrounding this
exchange. I have visited and toured Yavapai Ranch and the
exchange parcels and have witnessed firsthand the equity this
land exchange can bring to the area. Bringing the Yavapai Ranch
into Federal ownership is in the best interest of the public
and the general good, and the Forest Service has indicated that
it would otherwise be unable to afford to acquire these
parcels.
H.R. 2907 will benefit the public, the many communities and
camps in Northern Arizona that will receive opportunities for
future economic development and the natural beauty of the
Yavapai Ranch. The hearing on H.R. 2907 today represents
another step in this legislative process. I appreciate the
Subcommittee's consideration of the Northern Arizona National
Forest Land Exchange Act of 2003.
[The prepared statement of Mr. Renzi follows:]
Statement of The Honorable Rick Renzi, a Representative in Congress
from the State of Arizona, on H.R. 2907
Good morning, Chairman McInnis and members of the Subcommittee, I
appreciate the Subcommittee's consideration of my bill, H.R. 2907, the
Northern Arizona National Forest Land Exchange Act of 2003. H.R. 2907
facilitates a land exchange in northern Arizona of private land within
the Yavapai Ranch for Forest Service land in the northern portion of
the state.
H.R. 2907 accomplishes several goals in northern Arizona. First, it
will preserve the pristine areas within Yavapai Ranch for wildlife and
recreation. Second, H.R. 2907 provides the City of Flagstaff with the
opportunity to acquire land to expand and improve Pulliam Airport. H.R.
2907 will allow the City of Flagstaff to develop a new city park and
recreational areas and obtain ownership of land near their water
treatment plant. This is critical to the City of Flagstaff's future by
providing economic development and affordable housing.
The Northern Arizona National Forest Land Exchange Act will also
allow the City of Williams to acquire land for its well sites, water
storage tanks and wastewater facility and drinking water treatment
plants. Until recently, the City of Williams relied completely on
surface water supplies to service the community, however, surface water
reservoirs in Williams are currently at a minimal eight percent of
capacity. H.R. 2907 will assist Williams in meeting their water
challenges in the future by providing new land for well drilling sites.
In the Verde Valley, this bill provides the Town of Camp Verde with
a unique opportunity to acquire land for open space to protect their
view shed. The Camp Verde Fire District will be provided with land
adjacent to Interstate 17 for an emergency response and urgent care
facility for faster response. A planned development along Interstate 17
will provide Camp Verde with additional tax base and job opportunities.
A residential development in Clarkdale and Cottonwood will
diversify the housing market and provide new lands to their tax base. I
have ensured that language in H.R. 2907 ensures that water conservation
and water use restrictions must be met for any future development. In
addition, any development must also comply with the State of Arizona's
surface and ground water laws, as well as local community planning
standards.
Finally, this legislation ensures that six summer youth camps,
serving between six and eight thousand children a year, have the
opportunity to acquire the land and benefit from full ownership and
management of this land. Included in this exchange are YoungLife Lost
Canyon Camp, Friendly Pines Camp, YMCA Sky-Y Camp, Pine Summit Camp,
Temple Beth Israel's Camp Charles Pearlstein and the Roman Catholic
Church of Phoenix Patterdale Pines Camp.
In the past few months, I have received many letters and phone
calls providing input to this exchange. I have also held several town
halls and town meetings in the district to discuss the many complex
issues surrounding this exchange. I have visited and toured the Yavapai
Ranch and the exchange parcels and have witnessed first hand the equity
of this land exchange. Bringing the Yavapai Ranch into federal
ownership is in the best interest of the public, and the Forest Service
has indicated that it would otherwise be unable to afford to acquire
these parcels.
H.R. 2907 will benefit the public, the many communities and camps
in northern Arizona that will receive opportunities for future economic
development, and the natural beauty of the Yavapai Ranch. The hearing
on H.R. 2907 today represents another step in the legislative process.
I appreciate the Subcommittee's consideration of the Northern Arizona
National Forest Land Exchange Act of 2003.
______
Mr. Renzi. At this time, I would like to recognize the
Ranking Member, Mr. Inslee, for any statements that he might
have.
STATEMENT OF HON. JAY INSLEE, A REPRESENTATIVE IN CONGRESS FROM
THE STATE OF WASHINGTON
Mr. Inslee. Thank you. Just briefly, I look forward to
this. I think there are a lot of interesting issues. I look
forward to a discussion of this water conservation movement
issues, its enforceability in particular, and I am sure we will
have a lot of other good questions. Thank you, Mr. Chair.
Mr. Renzi. I thank the Ranking Member.
I would like to invite the first panel to join us at the
table, please, and I would like to introduce our witnesses
today.
As the gentlemen are making their way to the table, I would
like to recognize the gentleman who originally helped to author
this bill during the 107th Congress, the Congressman from the
Sixth District of Arizona--
Mr. Hayworth. Or what used to be the Sixth District, now
the Fifth with the realignment.
Mr. Renzi. Now the fifth.
Mr. Hayworth. Yes, sir.
STATEMENT OF HON. J.D. HAYWORTH, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF ARIZONA
Mr. Hayworth. Mr. Chairman, it is good to see you in the
chair today and I am grateful for the opportunity to talk about
this important legislation. Let me commend you, Mr. Renzi, for
all your hard work in bringing this before the Forest
Subcommittee. I would also like to join the Chairman in
welcoming my friends from Arizona who join us in the Committee
Room today and thank them for making the trip back to
Washington to participate in this hearing.
Although you may not agree on every jot and tittle of the
legislation before us, I think it is safe to say that we all
agree that we have a common goal. I look forward to working
with each of you toward that goal, which is to ensure that the
environment, ecosystem, watershed, and forested lands of
Northern Arizona are protected and preserved.
As the Chairman mentioned, H.R. 2907 is very similar to a
bill I sponsored in the last Congress, together with our friend
the late Bob Stump. The concept of a land exchange to
consolidate the Yavapai Ranch lands just made sense. Through
this land exchange, the Federal Government will receive
pristine forest lands that truly belong under the stewardship
of the U.S. Forest Service to preserve for future generations.
This exchange was originally initiated by the Forest
Service to consolidate a massive checkerboard parcel of land
and to protect the Juniper Mountains forested area from future
development. Watershed management, wildlife habitat, and
outdoor recreation in the consolidated land parcel will be
preserved through this action.
Additionally, many of the land parcels the Forest Service
will trade to accomplish these goals are eagerly sought by the
local communities for a variety of worthwhile civic purposes,
including expansion of airports, parks, and other municipal
facilities. As the Chairman mentioned, six summer camps that
currently lease lands from the Forest Service would be able to
acquire their leased areas.
There have been numerous meetings between Forest Service
personnel and various communities and citizen groups. As a
result, the bill has been endorsed by the city councils of
Flagstaff, Williams, Camp Verde, Cottonwood, Clarkdale, as well
as the Yavapai County Board of Supervisors, the Salt River
Project, the Arizona Game and Fish Department, the Flagstaff
Chamber of Commerce, the Greater Flagstaff Economic Council,
the Williams Chamber of Commerce, the Camp Verde Chamber, the
Cottonwood Chamber, the Grand Canyon Trust, the Sedona Verde
Valley Realtors, the Wildlife Conservation Council, the Arizona
Antelope Foundation, the Arizona Mule Deer Association, the
Central Arizona Land Trust, and the Arizona Republic Newspaper
editorial board.
This bill makes good sense for our forest and for the
people of Arizona. The savings for the Federal Government and
obviously for U.S. taxpayers associated with this land exchange
are significant, but much more importantly, this exchange will
ensure that one of the last largest pristine forested parcels
in Arizona will pass out of private hands and be protected from
development indefinitely.
We have several questions for our witnesses today, and
obviously welcome them and look forward to their testimony.
Again, Mr. Chairman, I commend you for your hard work on
this and am glad to be a part of this hearing today. Thank you,
sir. I yield back my time.
Mr. Renzi. Thank you, J.D.
[The prepared statement of Mr. Hayworth follows:]
Statement of The Honorable J.D. Hayworth, a Representative in Congress
from the State of Arizona, on H.R. 2907
Mr. Chairman, I am grateful for the opportunity to discuss this
important legislation today, and commend the gentleman from Arizona,
Mr. Renzi, for his hard work in bringing this before the Forests
Subcommittee. I also want to welcome my friends from Arizona who join
us in the Committee Room today and thank them for coming to Washington
to participate in this hearing. All of you may not agree on every jot
and tittle of the legislation before us, but I think it is fair to say
that we all agree that we have a common goal. I look forward to working
with each of you toward that goal, which is to ensure that the
environment, ecosystem, watershed, and forested lands of Northern
Arizona are protected and preserved.
As you know, H.R. 2907 is very similar to a bill I sponsored in the
last Congress, together with our friend, the late Rep. Bob Stump. The
concept of a land exchange to consolidate the Yavapai Ranch lands just
makes sense. Through this land exchange, the federal government will
receive pristine forest lands that truly belong under the stewardship
of the U.S. Forest Service to preserve for future generations.
This exchange was originally initiated by the Forest Service to
consolidate a massive ``checkerboard'' parcel of land, and to protect
the Juniper Mountains' forested area from future development. Watershed
management, wildlife habitat and outdoor recreation in the consolidated
land parcel will be preserved through this action. Additionally, many
of the land parcels the Forest Service will trade to accomplish these
goals are eagerly sought by local communities for a variety of
worthwhile civic purposes, including expansion of airports, parks and
other municipal facilities. Also, six summer camps that currently lease
lands from the Forest Service would acquire their leased areas.
There have been numerous meetings between Forest Service personnel
and various communities and citizen groups. As a result, this bill has
been endorsed by the City Councils of Flagstaff, Williams, Camp Verde,
Cottonwood, Clarkdale, as well as the Yavapai County Board of
Supervisors, Salt River Project, Arizona Game and Fish Department,
Flagstaff Chamber of Commerce, Greater Flagstaff Economic Council,
Williams Chamber of Commerce, Camp Verde Chamber of Commerce,
Cottonwood Chamber of Commerce, Grand Canyon Trust, Sedona-Verde Valley
Realtors, Wildlife Conservation Council, Arizona Antelope Foundation,
Arizona Mule Deer Association, Central Arizona Land Trust, and the
Arizona Republic, among others.
This bill makes good common sense for our forests and for the
people of Arizona. The savings for the federal government (and,
therefore, the U.S. taxpayer), associated with this land exchange are
significant. But much more importantly, the exchange will ensure that
one of the last, largest pristine forested parcels in Arizona will pass
out of private hands and be protected from development indefinitely.
I have several questions for our witnesses today, and look forward
to their testimony. And again, I commend Congressman Renzi for his hard
work on this important legislation and thank him for the chance to
partner with him on this bill.
______
Mr. Renzi. At this time, I would like to introduce our
witnesses on H.R. 2907. On panel one, we have the Honorable
Mark Rey, Under Secretary of Natural Resources and Environment
with the U.S. Department of Agriculture; the Honorable Mitch
Dickinson, Mayor of the Town of Camp Verde; Mr. Peter Andrew
Groseta, Owner of Groseta Ranches, LLC; and Ms. Aileen Roder,
Program Director, Taxpayers for Common Sense. Welcome and good
morning to you all. I am thankful.
We begin with a little reminder that I would ask that you
limit your statements to 5 minutes. Mr. Rey, I would now
recognize you for your 5-minute statement.
STATEMENT OF MARK REY, UNDER SECRETARY, NATURAL RESOURCES AND
ENVIRONMENT, U.S. DEPARTMENT OF AGRICULTURE
Mr. Rey. Thank you, Congressman Renzi, and thank you for
the opportunity to present the Department of Agriculture's
views on H.R. 2907, the Northern Arizona National Forest Land
Exchange Act of 2003, and H.R. 3247, the Trail Responsibility
and Accountability for the Improvement of Lands Act of 2003. I
will limit my remarks on this panel to the first of those two
bills and summarize accordingly.
The Department supports the land exchange embodied within
H.R. 2907 and supports the goal of H.R. 3247. We would like to
work with the Subcommittee and the sponsors on some
modifications that we believe would improve both bills.
With regard to H.R. 2907, the Department supports the land
exchange between Yavapai Ranch Limited Partnership, the
Northern Yavapai LLC, and the Forest Service, which would
consolidate the largest remaining checkerboard ownership in
Arizona. We do, however, have some concerns related to the
partial deletion order, the enforcement provisions associated
with the conservation easements, the cost of the appraisal, and
compensation for persons holding grazing permits within the
parcels identified for transfer. Both of those, or all of those
issues, we believe, can be resolved by technical corrections to
the bill and we would like to work with the Subcommittee on
these kinds of corrections.
This exchange will offer substantial benefits to all of the
parties involved. The forest units involved would benefit from
simplified boundary management, reduced administrative costs,
and the acquisition of lands adjacent to the Juniper Mesa
Wilderness, which has significant forest, wildlife, and
recreation values. Consolidating 110 square miles into solid
Forest Service ownership is a significant gain from both
administrative and resource standpoints. Savings in just land
line locations alone would amount to $1 million. So the bill
has significant benefits for all of the parties involved.
The Department supports enactment of the legislation and we
would be happy to work with the Committee to that end. Thank
you very much.
Mr. Renzi. Thank you, Mr. Rey.
[The prepared statement of Mr. Rey follows:]
Statement of Mark Rey, Under Secretary, Natural Resources and
Environment, U.S. Department of Agriculture, on H.R. 2907 and H.R. 3247
Mr. Chairman and Members of the Subcommittee:
Thank you for the opportunity to present the Department's views on
H.R. 2907, the Northern Arizona National Forest Land Exchange Act of
2003, and H.R. 3247, the Trail Responsibility and Accountability for
the Improvement of Lands Act (TRAIL Act) of 2003. The Department
supports the concept of the land exchange embodied within H.R. 2907,
and supports the goal of H.R. 3247, but would like to work with the
Subcommittee and sponsors on some modifications that we believe would
improve the bills.
H.R. 2907--the Northern Arizona National Forest Land Exchange Act of
2003
The Department supports the concept of a land exchange between
Yavapai Ranch Limited Partnership, the Northern Yavapai, L.L.C. and the
Forest Service, which would consolidate the largest remaining
checkerboard ownership in Arizona. We do however, have some concerns
related to the parcel deletion order, enforcement provisions associated
with the conservation easements, the costs of the appraisal, and
compensation for persons holding grazing permits within the parcels
identified for transfer. We would like to work with the Subcommittee on
some clarifications to this bill.
H.R. 2907 would authorize the exchange of approximately 55,000
acres of Federal and non-Federal land in the State of Arizona between
the Secretary of Agriculture and Yavapai Ranch Limited Partnership.
Pass-through provisions allows for some of the Federal land acquired by
Yavapai Ranch Limited Partnership and the Northern Yavapai L.L.C. to be
reconveyed to the cities of Flagstaff, Williams, and Camp Verde,
Arizona, and to summer organizational camps identified in the bill.
This exchange can offer substantial benefits to all parties
involved. The Forest units involved would benefit from simplified
boundary management, reduced administrative costs, and the acquisition
of lands adjacent to the Juniper Mesa Wilderness, which has significant
forest, wildlife, and recreation values. Consolidating 110 square miles
into solid Forest Service ownership is a significant gain from both
administrative and resource standpoints.
The Department has suggestions to improve four sections in the
bill. First, Section 4(a)(3)(B) establishes conservation easements on
the Camp Verde and Cottonwood parcels, which are located on the
Prescott National Forest. H.R. 2907 needs greater detail concerning:
(1) how a memorandum of understanding with the State of Arizona will be
developed to enforce the conservation easements; (2) when the
memorandum will take effect and for how long; and (3) how the Federal
government will be removed from liability. We would be happy to work
with the Subcommittee and the bill sponsors to provide additional
details.
In addition, the Department is concerned that the valuation of the
Federal parcels due to the conservation easements could result in the
transfer of far more Federal land to the owners of the Yavapai Ranch
and its related limited liability corporation than would otherwise
occur if the market value of the Federal estate were valued without
this encumbrance. The Federal government will hold these conservation
easements in perpetuity, thus reserving the value.
Our second concern involves Section 5(c)(2), which describes the
order for deleting Federal parcels. If the final appraised value of the
Federal land exceeds the final appraised value of the non-Federal land,
the intended deletion order could result in undesirable boundaries.
Third, Section 6(d) states the costs of implementing the land
exchange will be borne by the Secretary of Agriculture (for the Federal
land) and Yavapai Ranch (for the non-Federal land). The costs of
implementing the exchange should be borne equally by both parties since
both parties are benefitting from this land exchange; specifying each
type of cost is not needed in the bill. Also, the Department believes
reimbursement to Yavapai Ranch for using independent third party
contractors should only be done where the Forest Service has agreed to
the contractor, scope of work, cost estimate, and formally accepts the
work performed.
Fourth, Section 9 states that persons holding grazing permits for
land transferred into private ownership shall be compensated for any
loss of grazing associated with the transfer. The Department believes
this section should be deleted. Grazing on National Forest System land
has been determined by the courts to be a privilege, not a right. The
Department does not believe this grazing privilege should be
compensated since Forest Service regulations allow for a grazing permit
to be canceled, modified, or suspended, in whole or in part, where
lands grazed under the permit are to be devoted to another public
purpose including disposal. In these cases, except in an emergency, no
permit shall be cancelled without two years' prior notification (36 CFR
222.4).
However, the Federal Land Policy and Management Act of 1976
provides compensation for permittees' interest in authorized permanent
improvements. Forest Service regulations at 37 CFR 222.6 states,
``Whenever a term permit for grazing livestock on National Forest land
in the 16 contiguous western States is canceled in whole or in part to
devote the lands covered by the permit to another public purpose,
including disposal, the permittee shall receive from the United States
a reasonable compensation for the adjusted value of his interest in
authorized permanent improvements placed or constructed by him on the
lands covered by the canceled permit. The adjusted value is to be
determined by the Chief, Forest Service. Compensation received shall
not exceed the fair market value of the terminated portion of the
permittee's interest therein.'' Any compensation is based on
amortization over the life of the permanent improvement, thus the
Department would need an amortization schedule from the permittee for
all permanent improvements to be claimed, including receipts of
purchase, labor costs, or any other costs. The Department believes
these are the only costs where compensation is appropriate.
H.R. 3247--the Trail Responsibility and Accountability for the
Improvement of Lands Act (TRAIL Act) of 2003
The Department supports the goals of H.R. 3247, but would like to
work with the Subcommittee on some modifications that we believe would
improve the bill. We commend Mr. Tancredo and the cosponsors of H.R.
3247 for their efforts through this bill to raise the public's
awareness of the laws pertaining to Federal lands to protect the
public's natural resources, and the consequences of violating them. We
also thank the Subcommittee for seeking innovative approaches for
providing resources to the Department to rehabilitate National Forest
System lands once a criminal violation has occurred.
H.R. 3247 makes consistent the penalties for violating regulations
of the National Park Service, Bureau of Land Management, and the Fish
and Wildlife Service in the Department of the Interior, and the Forest
Service in the Department of Agriculture. We support such a concept as
we work closely with our fellow land management agencies in enforcement
activities, including local cross-designations of authority. Consistent
enforcement authority would make this cooperation much easier, aid the
public in understanding regulations and penalties, and assist
prosecutors and courts that must handle cases arising from different
federal jurisdictions. The bill would change the penalty for violation
of our regulations from one level of offense to two levels. We will
work with the Department of Justice and the federal courts to best
ensure advantages of consistent criminal penalties are fulfilled.
The Department has been working with the Department of Justice, the
Department of the Interior, and the Subcommittee on similar bills
dealing with enforcement and violations. We are willing to offer
suggested changes to H.R. 3247, which we believe will strengthen the
bill while still allowing the flexibility for enforcement. These
suggested changes to the Forest Service Organic Act deal with fines.
The Department would like to work with the Subcommittee, the
Department of the Interior, and the Department of Justice to clarify
Section 2 of the bill dealing with Class A and Class B misdemeanors.
Creating these separate offenses provides both the land managers and
the Department of Justice with much greater flexibility to deal with
criminal violations of land management regulations. The Forest Service
has authority to issue Class B misdemeanors for a violation of agency
regulations as stated in the Forest Service Organic Act of 1897. H.R.
3247 would create a new Class A misdemeanor for certain offenses
committed on National Forest System lands by any person who knowingly
and willfully violates any such rule or regulation. The bill adopts the
most onerous requirement of ``knowingly and willfully,'' which
generally requires greater proof of wrongdoing. Thus, in a prosecution
involving the ``knowing and willful'' standard, the government must
prove that the defendant specifically intended to violate the law, a
difficult standard to meet. Proof that an offense was committed
``knowingly'' merely requires proof of the facts that constitute the
offense. This means that in a criminal prosecution involving the
``knowing'' standard, the government must only prove that the defendant
was aware of his acts, performed them intentionally, and did not act by
mistake or accident.
In addition, Section 3 of the bill needs to be clarified concerning
use of collected fines. H.R. 3247 identifies how collected fines will
be used by providing authority to the Secretary to use all fines,
including collaterals, collected as a result of a violation of Forest
Service regulations to cover the cost to the United States of any
improvement, protection, or rehabilitation work on National Forest
System lands rendered necessary by the action which led to the fines.
Congress has previously approved the use of fines by other Departments
in other critical environmental legislation, including the Endangered
Species Act of 1973 and the Migratory Bird Treaty Act of 1918. H.R.
3247 also would establish an innovative and effective means of putting
the penalties paid by violators of Federal regulations to use to cover
some of the costs of damage caused by violations. The bill also would
authorize the use of moneys received from fines, forfeitures,
judgments, settlements, and compromises to be used for prevention and
education programs to help prevent future violations and losses.
To effectuate fully the authority provided by H.R. 3247 to retain
and spend fines and collaterals collected for criminal violations of
Forest Service regulations, the Department recommends that Paragraph
(A), as added by Section 3(d) of the bill governing the use of moneys
collected by the Forest Service be amended by expanding the use of such
moneys to cover the costs of repair and replacement of other government
property damaged by the action that led to the fine, forfeiture,
judgment, compromise, or settlement.
We appreciate the interest of the sponsor and the Subcommittee in
addressing violations of law on National Forest System lands and their
penalties, and your willingness to work with us to address the many law
enforcement challenges we face.
This concludes my statement. I would be pleased to answer any
questions that you may have.
______
Mr. Renzi. Mitch, it is good to have you here this morning.
Mr. Dickinson. Thank you, sir. I am happy to be here.
Mr. Renzi. Thank you for coming all the way to Washington.
I am interested to hear your statement. Please begin.
STATEMENT OF MITCH DICKINSON, MAYOR, TOWN OF CAMP VERDE,
ARIZONA; ACCOMPANIED BY MICHAEL R. BLUFF, MAYOR, CLARKDALE,
ARIZONA; AND RUBEN JAUREGUI, MAYOR, COTTONWOOD, ARIZONA
Mr. Dickinson. My name is Mitch Dickinson and I am the
Mayor of the Town of Camp Verde. I am also a sixth generation
Camp Verde native and I believe I have a strong understanding
of the issues important to Northern Arizona.
I appear before you today as a spokesperson for the towns
of Camp Verde, Cottonwood, Clarkdale, Flagstaff, Williams,
Prescott, Chino Valley, and Prescott Valley, all of whom
strongly endorse this land exchange. Four of these communities,
including my hometown, will receive lands via this exchange
that are very important in our efforts to plan for and
accommodate future growth and economic development in a
challenging rural area while preserving and protecting open
space, the Verde River, and the Ponderosa Pine Forest. We were
disappointed last year when the bill was not passed and we are
here today to encourage you and support passage this session.
The Forest Service and Yavapai Ranch have worked with the
local communities for more than 5 years now and I would
emphasize that we have an extraordinary consensus in Northern
Arizona about this trade. Specifically, this land exchange has
the strong support of every single city or town that has land
involved in the exchange and every town that has land abutting
the exchange. It also has the support of the numerous
organizations that were mentioned previously. There could not
possibly be a broader base of support for this bill.
I would like to briefly describe why our communities are so
interested in seeing this exchange. I will begin with
Flagstaff. As was mentioned earlier, Flagstaff needs room to
expand their airport. They need more room for runways to bring
in regional jets that will help accommodate business and
tourist travelers to the economy of all of Northern Arizona.
They also need to acquire Forest Service land on which its
water treatment plant is located, and this would help to meet
the Forest Service goal that has been stated publicly in my
hometown, that the Forest Service would like to get out of the
land leasing business.
Turning to Williams, the problems with water there were
mentioned. Last year, their water capacity reservoirs were down
to 4 percent. This year, they are up to 8 percent. Out of all
of the communities, they are probably the most anxious about
its passage. They need additional lands to develop wells for
proper water resources for their community. When water levels
get this low, there is also a problem with water quality and
water filtration, so it really is a public health issue to
Williams.
The next communities involved in the exchange are
Cottonwood and Clarkdale. Clarkdale Mayor Mike Bluff and
Cottonwood Mayor Ruben Jauregui are here with me today to
support this bill. Both communities need this land exchange to
accommodate their planned future growth and to improve the
regional mix of housing available to its residents and to
increase needed tax revenues while also maintaining open space
along the foothills. These lands would give them the ability to
make those smart growth planning decisions.
Mayor Bluff has corrected stated in letters to Senators
McCain and Kyl that this trade will save water. The water
conservation easements that had been agreed to are
unprecedented in Arizona. This legislation will require
conservation methods that will be an example to future
development in Arizona.
Now, I will turn to my own Town of Camp Verde, where our
town council strongly favors this land exchange. In the
election held last spring, this issue was the most prominent
and the pro-exchange candidates ran strongly on this issue for
the growth and planning of our community and they were elected
overwhelmingly. That was an accurate indication of how the
people of Camp Verde think on this issue.
Camp Verde understands that this exchange will provide us
the opportunity for highway frontage land to build a commercial
tax base that is currently Forest Service land. It will also
provide land to our fire department and hazmat and emergency
teams to have a response facility that is essential to their
ability to handle emergencies along the Interstate 17 and
Highway 260 corridors in a timely manner.
We must build a commercial tax base in order to have
sufficient revenue stream to provide basic services to our
residents. Business wants to be located near a highway that
passes 11 million vehicles a year and brings tourist dollars
with it that will help to make these developments be
successful. The Forest Service owns the land along the highway.
This land is arid, low-lying scrub-brush that is not very
scenic by Verde Valley standards. It is, however, ideal for
commercial development.
Right now, you cannot buy a pair of shoes in Camp Verde.
Our residents are forced to drive 15 miles or more to
neighboring towns to do most of their shopping, and that is an
inefficient circumstance in an ever-growing area. This trade
will work to help development occur where it belongs, along the
highway, well away from the riparian belts of the Verde River
and the low-lying valley.
I am aware that some have questioned the enforceability of
the water conservation easements in the legislation. Arizona
statutes authorize those easements and I can assure you that
the towns of Camp Verde, Cottonwood, and Clarkdale are
concerned about water and that we are ready, willing, and able
to monitor and enforce them.
We think the exchange is a win-all for Northern Arizona for
future jobs, smart economic growth, and for protection and
preservation of open space. We think it is fair to all the
parties, including the cities and towns, Yavapai Ranch, and the
Forest Service, and for all of these reasons, we ask you to
promptly pass this bill. I would like to say that there are
several letters of support that have been submitted and I would
ask that they be included in the record.
This concludes my statement. Mayor Jauregui, Mayor Bluff,
and myself are here to answer any questions you may have.
Mr. Renzi. Mitch, thank you for your leadership on this and
your comments.
[The prepared statement of Mr. Dickinson follows:]
Statement of The Honorable Mitch Dickinson, Mayor,
Town of Camp Verde, Arizona, on H.R. 2907
Mr. Chairman and Members of the Subcommittee:
My name is Mitch Dickinson, and I am the Mayor of the Town of Camp
Verde, Arizona. I appear before you today on behalf of the mayors of
Camp Verde, Chino Valley, Clarkdale, Cottonwood, Flagstaff, Prescott,
Prescott Valley and Williams, all of whom strongly endorse the land
exchange proposals of H.R. 2907.
Four of those communities, including my home town of Camp Verde,
will receive lands via this exchange that are very important in order
to accommodate future planned growth and economic development, provide
critical new municipal services, and preserve and protect open space
and the Verde River.
Mr. Chairman, our communities need these lands now, before it is
too late. This land exchange has been the most discussed in the history
of Arizona. We were extremely disappointed when Congress adjourned last
year without taking final action on the exchange legislation, even
though the House passed it unanimously. Thus, we are asking that H.R.
2907 be passed by the Congress this fall.
As you have already heard, the Forest Service has been working with
the Yavapai Ranch Partnership and our city and town governments to put
this land exchange together for more than five years now. I would
emphasize that we have developed an extraordinary consensus about it.
Specifically, this land exchange has the strong support of:
Every single City and Town that has land involved in the
exchange or land which abuts the exchange;
The Coconino County Board of Supervisors and numerous
elected officials;
Six summer camps for children which will receive land via
the exchange--land which is needed to avoid future management conflicts
with the Forest Service;
The Arizona Game and Fish Department;
The Navajo Nation, and Hopi and White Mountain Apache
Tribes;
The Arizona Republic, our state's largest newspaper,
along with Flagstaff's Arizona Daily Sun, Williams' Grand Canyon News
and the Verde Independent;
Numerous environmental, conservation and sportsmen's
groups, including the Central Arizona Land Trust and the 35 affiliated
groups of the Wildlife Conservation Council; and
Numerous local Chambers of Commerce, Economic Development
Organizations, unions and other civic and community organizations.
Mr. Chairman, there could not possibly be a broader base of support
for H.R. 2907 than what exists today.
My official role here today is as the spokesperson for the cities
of Northern Arizona, and so, with your indulgence, Mr. Chairman, I
would like to briefly describe why the communities of Flagstaff,
Clarkdale, Williams, and my own Town of Camp Verde are so interested in
seeing this exchange completed at the earliest possible date.
I will begin with Flagstaff. As Congressmen Renzi and Hayworth are
so acutely aware, the City of Flagstaff desperately needs to retain and
improve commercial airline service for its business and tourist
travelers. By 2006, Flagstaff's air carrier will have changed its fleet
to regional jets that need a longer runway to land at and take off from
Flagstaff's Pulliam Airport. To do that, Flagstaff will need to
lengthen its runway. This exchange will help facilitate Flagstaff's
efforts to do exactly that. Land around the airport that is not
acquired by Flagstaff will become available for future business park or
light industrial development that will diversify the region's
employment base. Other land may be used for affordable housing and new
municipal parks. Flagstaff would also acquire the Forest Service land
on which its water treatment plant is located. For all these reasons,
the land exchange is vital for Flagstaff's citizens and northern
Arizona's economy. Flagstaff and the Forest Service agree it makes
sense for Flagstaff to acquire the lion's share of the 1500-acre
Federal parcel identified in H.R. 2907.
Turning to the City of Williams, some 30 miles to the west of
Flagstaff on Historic Route 66, the situation urgently requires passage
of this legislation. Williams faces an absolute water crisis. Last
year, its water reservoirs were depleted to only 4 percent of storage
capacity--I repeat--4 percent of capacity--by the ongoing drought. This
year, its reservoirs have ``recovered,'' if you can call it a recovery,
to 8% of capacity. As Dennis Wells, who is the Williams City Manager,
pointed out in last month's testimony to the Senate, when water levels
are that low, it not only jeopardizes Williams' ability to provide even
basic water services, but also triggers water quality and filtration
problems. For this reason, Williams is extremely anxious to see
immediate passage of H.R. 2907 so it can acquire from the Forest
Service sites to drill new water wells to provide additional drinking
water. Williams will then be able to implement its comprehensive water
and wastewater program, which includes improvements to its water
filtration plant and storage tanks, and the wastewater treatment
facility. The severe drought in Arizona is ongoing, and may well be the
worst drought in the past 100 years, so it is critical that the City of
Williams acquire the new well sites at the earliest possible date.
In addition, Williams is one of the main gateways to Grand Canyon
National Park, and needs to improve its airport. The public golf
course, municipal park, water filtration and wastewater treatments
plants are all located wholly or partially on National Forest land.
Williams wants to acquire these lands, and the Forest Service wants to
exchange them, so Williams can own the land on which these municipal
facilities are located. The Yavapai Ranch land exchange would enable
this to happen.
The next communities with lands involved in the exchange are the
Town of Clarkdale and the City of Cottonwood, both of which are located
some 20 miles northwest of Camp Verde. Clarkdale Mayor Mike Bluff and
Cottonwood Mayor Ruben Jauregui are here with me today to support H.R.
2907. Clarkdale has already annexed the land adjacent to its
boundaries. Both communities need this land to accommodate future
planned growth, to improve the regional mix of housing available to its
residents, and to add needed tax revenues.
In addition, as Mayor Bluff has stated in previous letters to
Senators McCain and Kyl, this trade saves water. The water conservation
easements that have been agreed to are unprecedented in the Verde
Valley. This legislation will require conservation methods to be put in
place and we can use these as an example for future development. It is
also important to note that many of our communities are landlocked by
Forest and other public lands. Because additional land is not
available, land prices have escalated. This additional land will help
the market and make it easier for young families to reach the American
dream of home ownership.
Finally, Mr. Chairman, I turn to my own Town of Camp Verde, where
our Town Council strongly favors this land exchange. Indeed, in the
election held in our town last spring, approval of the Yavapai Ranch
land exchange was the single most important issue on the voters' minds.
In that election, pro-exchange candidates were all elected by a 70% to
30% margin. That gives you an indication of how our community feels
about this issue.
Mr. Chairman, Camp Verde voters understand that this exchange
offers them a commercial tax base to fund needed municipal services.
Camp Verde and the local Fire District need land for an emergency
response facility with fire, hazmat and medical services that are
essential for a rapid response to emergencies along rural stretches of
Interstate I-17.
We also need to expand our regional commercial and residential tax
base, which includes a regional shopping center. Right now, Camp Verde
residents drive 15-20 miles to Cottonwood to do most of their
shopping--that is not very efficient in terms of traffic congestion and
pollution, nor does it enhance our residents' quality of life. Although
there is private land in Camp Verde that could accommodate future
growth, much of it is located along the beautiful Verde River or on the
Verde River's floodplain.
So our choice is relatively clear: either we have more commercial
development along the River, which our residents would like to see
preserved, or we can locate it on the Forest Service land, west of
Interstate 17. This tract is arid and not very scenic. It is located
upslope and away from the Verde River, and can be developed without any
visual or other impacts on the River's riparian habitat.
I also have been told that a member of Arizona's Congressional
staff has questioned the enforceability of the water conservation
easements. Arizona's statutes authorize those easements, and the Town
of Camp Verde is ready, willing and able to enforce them.
We think the proposed exchange is a win for our Town, for future
jobs and growth, and for the protection and preservation of our open
space and the Verde River riparian lands which make our community so
beautiful. I also would like to introduce letters of support from our
local firefighters union, from mayors, citizens and business, and an
editorial from our local newspaper, the Verde Independent, which was
published just last week on October 8. That editorial urges you to pass
this bill.
In summary, Mr. Chairman, you can see why the elected officials
from so many towns and cities in north central and northern Arizona
think H.R. 2907 is a great piece of legislation, and why our four towns
in particular need it to be enacted as soon as humanly possible. We
think that H.R.2907 is fair to all parties, including our cities and
towns, Yavapai Ranch and the Forest Service. For all these reasons, we
ask you to promptly pass H.R. 2907 this fall.
That concludes my testimony. Mayor Bluff, Mayor Jauregui or I would
be happy to answer any questions the Subcommittee might have. Thank
you.
______
Mr. Renzi. Andy, good morning. Good to see you.
STATEMENT OF PETER ANDREW ``ANDY'' GROSETA, OWNER, W DART
RANCH, DBA, GROSETA RANCHES, LLC, COTTONWOOD, ARIZONA
Mr. Groseta. Good morning, Mr. Chairman. Mr. Chairman and
members of the Subcommittee, my name is Peter Andrew Groseta
and I am a third generation cattle rancher from the Verde
Valley in North Central Arizona. My family came to the Verde
Valley at the turn of the last century to work in the copper
mines in Jerome, Arizona. In 1922, my father's family moved to
a ranch in Middle Verde, and in 1936 to Cottonwood, where our
ranch headquarters are today.
We are a family run ranching operation. My father passed
away in May of 2000. My wife, Mary Beth, and I have raised
three children, one son and two daughters, who are all enrolled
at the University of Arizona, majoring in agriculture. Our son
would like to come back to the ranch after he receives his
degree and operate the ranch.
I am here today representing my family's ranch, which will
be adversely impacted if the proposed Yavapai Ranch land
exchange is passed by Congress, unless Groseta Ranch is fully
compensated for the real losses it will suffer as a result of
the exchange. If this exchange is passed by Congress, it will
cause a substantial adverse financial loss for my family.
Despite what some might say, my family's loss will be very
real. The exchange will constitute a taking in the truest sense
of the word. The marketplace and the Internal Revenue Service
take the value of grazing permits, improvements, and other
factors into account every day in the evaluation of rangelands
for the purposes of death and gift transfers, purchases and
sales. If the Internal Revenue Service can dramatically
increase a value of a rancher's base property because of a
grazing permit and improvements for the purposes of imposing
estate taxes and capital gains taxes, how could the Federal
Government take away these very same values from a citizen and
not compensate him or her? And how can anyone ignore the
financial impact on a ranch of permanently losing a substantial
amount of its capacity to raise a sufficient number of cattle
to cover fixed expenses and debt service?
I begin my testimony with an emphasis that there is much
local controversy, not only in the towns of Camp Verde,
Cottonwood, and Clarkdale regarding this proposed exchange, but
also in the unincorporated areas of Yavapai County. All of this
controversy is totally apart from the Groseta Ranch issues. The
Camp Verde Town Council has reversed its position on this
proposed exchange three times, and the Clarkdale Town Council
has reversed its position two times. That should tell you that
this proposed land exchange is very, very controversial in the
Verde Valley.
At the outset, it is important to note that the Groseta
Ranch prefers that the Camp Verde and Cottonwood-Clarkdale
parcels simply be dropped from the exchange.
We recognize that the proposed H.R. 2907 will greatly
benefit Arizona, particularly many counties and municipalities.
We believe the public goals of such an exchange can be
effectively completed without including the Camp Verde and
Cottonwood-Clarkdale parcels. There is already a substantial
amount of undeveloped private land in the Verde Valley to
support economic growth and increase the population base.
However, if the exchange as presented is passed by
Congress, it will cause a severe economic loss to our family's
ranch. We have researched this matter and have found that
according to the Federal Land Policy and Management Act Title
43, Section 1752(g), statutory authority is provided for
compensation to grazing permittees in the event a land exchange
occurs.
The following economic issues result from the exchange.
Number one, if the proposed exchange is implemented,
approximately 2,200 acres of real U.S. Forest Service property
with grazing rights would be eliminated from Groseta Ranch's
cattle operation, known as the Camp Verde parcel. This lost
business opportunity would result in a permanent reduction in
grazing of at least 47 head of cattle, or 25 percent of the
carrying capacity of this holding. This will cause a permanent
loss of net income to Groseta Ranch, which puts an additional
burden on Groseta Ranch's ability to pay its bills and debt
service.
Number two, in addition to the loss of grazing rights,
vested water rights would be impacted on the Camp Verde parcel.
Number three, improvements, such as right-of-ways, fences,
roads, and trails, water pipelines, water troughs, wells, and
corrals would be lost. Photographs of these improvements are
included in Exhibit A, which will be submitted for the record.
Number four, there would be a significantly diminished
value for Groseta Ranch's fee simple real property interest in
the Hayfield base holding, not contiguous to the Camp Verde
parcel, but as a part of the grazing allotment.
Number five, there will be a significant permanent loss of
production and, therefore, income by Groseta Ranch as a result
of the significant reduction in its carrying capacity.
Number six, presently, the U.S. Forest Service Cottonwood-
Clarkdale parcel, which consists of 820 acres, is landlocked.
Any prescriptive easement the Forest Service or its transferee
may obtain in the future will not support a use other than
running livestock. Lack of legal access and water conservation
easements are both factors which will encumber the parcels and
reduce fair market value when they are appraised. This should
take the parcel out of the proposed exchange altogether.
We believe the transferee-developer hopes to get this
parcel at a greatly reduced value and then find a way to get
around the legal prohibitions to its development. There is no
other possible explanation why he wants this parcel in the
exchange. This would be a disservice to the American people,
who would be basically giving this parcel away.
In conclusion, the following is a summary of the real
losses, calculated on a conservative basis, as detailed in
Exhibit A, which is submitted for the record that will be
sustained by my family as a result of the exchange. Loss of
grazing permits, $105,000. Loss of value in base property,
$141,900. Loss of vested water rights, $9,000. Loss of
improvements, $153,688. Legal and other related costs, $25,000.
Loss of business capacity, $111,236. This adds up to a total
loss to the Groseta Ranch of $545,824.
A detailed memorandum submitted to Congressman Renzi and
Senators McCain and Kyl on July 9, 2003, is attached as Exhibit
A, which is submitted for the record.
Groseta Ranch's first choice, however, is to have the
controversial Camp Verde and Cottonwood-Clarkdale parcels
excluded altogether from the exchange and not suffer any of
these losses. Even with both of these parcels being excluded
from the exchange, the exchange itself still offers substantial
benefits to all parties involved. The proponent of the exchange
can be compensated for removing these parcels by conveying
alternative Federal land to him on the Yavapai Ranch, the
Flagstaff Airport, or other selected Federal lands the Federal
Government desires to exchange in Northern Arizona.
However, in closing, if the above-mentioned compensation to
our family is included in the proposed bill, we can support the
bill. This concludes my testimony and I would be pleased to
answer any questions. Thank you.
Mr. Renzi. Thank you, Mr. Groseta.
[The prepared statement of Mr. Groseta follows:]
Statement of P. Andrew (``Andy'') Groseta, Owner, W Dart Ranch, dba,
Groseta Ranches, LLC, on H.R. 2907
Mr. Chairman and Members of the Subcommittee:
Good morning. My name is Peter Andrew Groseta, and I am a third-
generation cattle rancher from the Verde Valley in north central
Arizona. My family came to the Verde Valley at the ``turn of the last
century'' to work in the copper mines in Jerome, Arizona. In 1922, my
father's family moved to a ranch in Middle Verde, and in 1936 to
Cottonwood, where our Ranch Headquarters are today.
We are a family-run ranching operation. My father passed away in
May of 2000. My wife, Mary Beth, and I have raised three children, one
son and two daughters, who are all enrolled at the University of
Arizona, majoring in agriculture. Our son would like to come back to
run the ranch, after he receives his college degree.
I am here today representing my family's ranch, which will be
adversely impacted if the proposed Yavapai Ranch/USFS Land Exchange is
passed by Congress, unless Groseta Ranch is fully compensated for the
real losses it will suffer as a result of the exchange. If this
exchange is passed by Congress, it will cause a substantial, adverse
financial loss for my family. Despite what some might say, my family's
loss will be very real. The exchange will constitute a ``taking'' in
the truest sense of that word. The marketplace and the Internal Revenue
Service take the value of grazing permits, improvements and other
factors into account every day in the valuation of rangeland for the
purposes of death and gift transfers, purchases and sales. If the
Internal Revenue Service can dramatically increase the value of a
rancher's base property because of a grazing permit and improvements
for the purposes of imposing estate taxes and capital gains taxes, how
could the federal government take away these very same values from a
citizen and not compensate him or her? And how can anyone ignore the
financial impact on a ranch of permanently losing a substantial amount
of its capacity to raise a sufficient number of cattle to cover fixed
expenses and debt service?
I begin my testimony with an emphasis that there is much local
controversy, not only in the Towns of Camp Verde, Cottonwood and
Clarkdale regarding this proposed exchange, but also in the
unincorporated areas of Yavapai County. All of this controversy is
totally apart from the Groseta Ranch issues. The Camp Verde Town
Council has reversed its position on this proposed exchange three
times; and the Clarkdale Town Council has reversed its position two
times. That should tell you that this proposed land exchange is very,
very controversial in the Verde Valley.
At the outset, it is important to note that Groseta Ranch prefers
that the Camp Verde and Clarkdale parcels simply be dropped from the
exchange.
We recognize that proposed H.R. 2907 will greatly benefit Arizona,
particularly many counties and municipalities. We believe the public
goals of such an exchange can be effectively completed without
including the Camp Verde and Clarkdale/Cottonwood parcels. There is
already a substantial amount of undeveloped private land in the Verde
Valley to support economic growth and increase the population base.
However, if the exchange as presented is passed by Congress, it
will cause a severe economic loss to our family ranch. We have
researched this matter, and have found that, according to the Federal
Land Policy and Management Act, 43 USC Sec. 1752(g), statutory
authority is provided for compensation to grazing permittees in the
event a land exchange occurs.
The following economic issues result from the exchange:
1. If the proposed Exchange is implemented, approximately 2,200
acres of real property U.S. Forest Service (USFS) grazing rights would
be eliminated from Groseta Ranch's cattle operation (the ``Camp Verde
parcel''). This lost business opportunity would result in permanent
reduction in grazing of at least 47 head of cattle, or 25% or more of
the carrying capacity of this holding. This will cause a permanent loss
of net income to Groseta Ranch, which puts an additional burden on
Groseta Ranch's ability to pay its bills and debt service;
2. In addition to the loss of grazing rights, vested water rights
would be impacted on the Camp Verde parcel;
3. Improvements such as right-of-ways, fences, roads and trails,
pipelines, wells, troughs and corrals would be lost. Photographs of
these improvements are included in Exhibit A, which will be submitted
for the record;
4. There would be a significantly diminished value for Groseta
Ranch's fee simple real property interest in the Hayfield base holding
(not contiguous to the Camp Verde parcel, but the base property of the
Verde Grazing allotment);
5. There will be significant, permanent loss of production, and
therefore, income by Groseta Ranch as a result of the significant
reduction in its grazing capacity; and
6. Presently, the USFS Cottonwood/Clarkdale parcel (820 acres) is
landlocked. Any prescriptive easement the USFS or its transferee may
obtain in the future will not support a use other than running
livestock. Lack of legal access and water conservation easements are
both factors which will encumber the parcels and reduce fair market
value when they are appraised. This should take the parcel out of the
proposed exchange altogether. We believe the transferee/developer hopes
to get this parcel at a greatly reduced value and then find a way to
get around the legal prohibitions to its development. There is no other
possible explanation why he wants this parcel in the exchange. This
would be a disservice to the American people who would basically be
giving this parcel away.
In conclusion, the following is a summary of the real losses
(calculated on a conservative basis as detailed in Exhibit A, which is
submitted for the record) that will be sustained by my family as a
result of the proposed exchange:
Loss of Grazing Permits -- $105,000
Loss of Value in Base Property -- $141,900
Loss of Vested Water Rights -- $9,000
Loss of Improvements -- $153,688
Legal and Other Related Costs -- $25,000
Loss of Business Capacity -- $111,236
Total: -- $545,824
A detailed memorandum submitted to Congressman Renzi and Senators
McCain and Kyl, on July 9, 2003, is attached as an Exhibit A, which is
submitted for the record.
Groseta Ranch's first choice, however, is to have the controversial
Camp Verde and Cottonwood/Clarkdale parcels excluded altogether from
the exchange, and not suffer any of these losses. Even with both of
these parcels being excluded from the exchange, the exchange itself
still offers substantial benefits to all parties involved!
The proponent of the exchange can be compensated for removing these
parcels by conveying alternative federal land to him on the Yavapai
Ranch, the Flagstaff Airport, or other selected federal lands the
federal government desires to exchange in Northern Arizona. However, in
closing, if the above-mentioned compensation to our family is included
in the proposed bill, we can support the bill. This concludes my
testimony. I would be pleased to answer any questions.
[NOTE: The attachment to Mr. Groseta's statement has been retained
in the Committee's official files.]
______
Mr. Renzi. I now recognize Ms. Roder.
STATEMENT OF AILEEN RODER, PROGRAM DIRECTOR,
TAXPAYERS FOR COMMON SENSE
Ms. Roder. Thank you. Good morning, Chairman Renzi,
Congressman Inslee, and other distinguished members of the
Subcommittee. I am Aileen Roder, Program Director at Taxpayers
for Common Sense, a national nonpartisan budget watchdog group.
I would like to thank you for inviting me to testify today
regarding H.R. 2907, which would convey approximately 21,000
acres of Forest Service land to Yavapai Ranch in exchange for
lands within the boundaries of the Prescott National Forest in
Arizona.
Taxpayers for Common Sense strongly opposes H.R. 2907 and
is concerned about land transfers and land exchanges in
general. In 1998, TCS testified urging that taxpayers deserve a
fair return on the public's investment. Under fair market
terms, both U.S. taxpayers and local interests can benefit from
land exchanges. However, due to recent controversies
surrounding the management of Federal lands, we believe that a
temporary moratorium on all land exchanges should be
implemented.
We need to fix the system administratively. The legislative
process should be eliminated because it lacks a process for
public input and raises the specter of political influence
dictating outcomes.
H.R. 2907 allows Yavapai Ranch to have its cake and eat it,
too, with Yavapai Ranch keeping its grazing allotment and part
of its water rights on the lands it is exchanging to the
Federal Government while receiving extremely valuable lands
throughout the Verde Valley. H.R. 2907 also requires the Forest
Service to reimburse grazing rights of those entities that are
currently grazing on the Federal lands that Yavapai will
receive. The cost of reimbursing these grazing rights should
not fall upon taxpayers.
The conservation or water restriction easements on two
parcels of Federal lands to be given to Yavapai will decrease
the fair market value of the Federal property. Due to an
apparent loophole in H.R. 2907, these water restrictions will
reduce the estimated value of the two parcels while not
actually achieving the goal they are seeking.
Local communities in the Verde Valley are extremely
concerned regarding this land exchange, with 15 out of 31 local
elected officials opposed to this land exchange being
legislated. Under a legislated land exchange, the public will
not see the appraisal of Federal and non-Federal lands until
the land exchange is complete. Secrecy in completing land deals
is bad public policy and it hurts the public trust in the
process.
The General Accounting Office investigated Federal land
exchanges conducted by BLM and the Forest Service and
documented numerous cases in which the Federal Government did
not ensure that the land being exchanged was appropriately
valued or that land exchanges served the public interest or met
other land exchange requirements. The GAO found that agencies
have given more than fair market value for the non-Federal land
they acquired and accepted less than fair market value for
Federal land that they conveyed. The agencies did not follow
their requirements that help show that the public benefits of
acquiring the non-Federal land in an exchange matched or
exceeded the public benefits of retaining the land.
As a result, GAO stated, ``We believe that Congress may
wish to consider directing the Service and the Bureau to
discontinue their land exchange programs.'' BLM and Forest
Service must be cognizant of the serious issues raised by GAO.
In response to these concerns, the Department of Interior
recently announced the creation of a new team that will plan to
consolidate appraisal functions performed by various agencies
within the Department of Interior.
In conclusion, H.R. 2907 raises numerous taxpayer concerns,
both to the specific land exchange and the Federal land
exchange system in general. Congress should eliminate
legislative land exchanges because they are too susceptible to
the political influence. Simply put, land exchanges are an
administrative function and should be removed from the
political arena.
Specifically, the Yavapai land exchange reveals many
questions regarding valuation of Federal and non-Federal lands,
the right of the Yavapai Ranch to retain water and grazing
rights, local community opposition, and the inability of
taxpayers to see appraisals until after the land exchange is
completed. These problems raise concerns of fundamental
fairness to both local communities and American taxpayers.
Thank you again for the opportunity to testify today, and I
would be happy to answer any questions you might have.
Mr. Renzi. Thank you for your articulation, Ms. Roder.
[The prepared statement of Ms. Roder follows:]
Statement of Aileen Roder, Program Director,
Taxpayers for Common Sense, on H.R. 2907
Good morning, Chairman McInnis, Congressman Inslee, and other
distinguished members of the Subcommittee. I am Aileen Roder, Program
Director at Taxpayers for Common Sense (TCS), a national, non-partisan
budget watchdog group. I would like to thank you for inviting me to
testify at this hearing regarding H.R. 2907, which would provide for a
land exchange in the State of Arizona between the Secretary of
Agriculture and Yavapai Ranch Limited Partnership.
Taxpayers for Common Sense strongly opposes H.R. 2907. This bill,
introduced in July by Congressmen Renzi (R-AZ) and Hayworth (R-AZ),
would convey approximately 21,000 acres of Forest Service land to
Yavapai Ranch in exchange for lands within the boundaries of the
Prescott National Forest, Arizona.
Unfortunately, H.R. 2907 is just one more example of the
controversy and problems associated with the federal land exchange
system. In June 2000, the General Accounting Office (GAO) documented
numerous cases in which the federal government ``did not ensure that
the land being exchanged was appropriately valued or that exchanges
served the public interest or met other exchange requirements.''
1
---------------------------------------------------------------------------
\1\ Land Exchanges Need to Reflect Appropriate Value and Serve the
Public Interest. June 2000, (GAO/RCED 00-73).
---------------------------------------------------------------------------
Taxpayers for Common Sense favors privatizing or devolving certain
federal assets to state or local government in appropriate
circumstances. Under fair market terms and conditions, both U.S.
taxpayers and local interests can benefit from land exchanges. However,
due to the extreme controversy surrounding the management of federal
land exchanges in recent years, TCS believes that we need to have a
temporary moratorium on all land exchanges until the system can be
fixed. The administrative process should be revamped to be fully
transparent and serve taxpayer, not private interests. The legislative
land exchange process should not exist, period. The legislative
process, such as it is, lacks a process for public input and visibility
and raises the specter of political influence dictating outcomes.
Simply put, land exchanges are an administrative function and should be
removed from the political arena.
Federal Land Exchange System in Desperate Need of Reform
In order for a land exchange to occur under federal law, the
estimated value of the nonfederal land must be within 25 percent of the
estimated value of the federal land and the public interest must be
well-served. 2 In its June 2000 report, GAO investigated
federal land exchanges conducted by the U.S. Bureau of Land Management
(BLM) and the U.S. Forest Service between 1989 and 1999. 3
During that time period, the Forest Service completed approximately
1,265 land exchanges, valued at over $1 billion, and acquired a net
total of about 950 square miles. 4 BLM does not track
exchanges, but instead counts transactions (two can occur for every
land exchange). 5 Between 1989 and 1999, BLM completed about
2,600 transactions, acquiring approximately 550 square miles.
6
---------------------------------------------------------------------------
\2\ P.L. 94-579, October 21, 1976.
\3\ GAO/RCED 00-73.
\4\ Ibid.
\5\ Ibid.
\6\ Ibid.
---------------------------------------------------------------------------
The GAO found 7:
---------------------------------------------------------------------------
\7\ Ibid.
---------------------------------------------------------------------------
1. ``The agencies have given more than fair market value for
nonfederal land they acquired and accepted less than fair market value
for federal land they conveyed because the appraisals used to estimate
the lands' value did not always meet federal standards.''
2. ``The agencies did not follow their requirements that help show
that the public benefits of acquiring the nonfederal land in an
exchange matched or exceeded the public benefits of retaining the
federal land, raising doubts about whether these exchanges served the
public interest.''
3. BLM ``sold federal land, deposited the sales proceeds into
interest-bearing escrow accounts, and used these funds to acquire
nonfederal land (or arranged with others to do so). Current law does
not authorize the Bureau to retain or use proceeds from selling federal
land; it instead requires the Bureau to deposit sale proceeds into the
Treasury and to use appropriations to acquire nonfederal lands. In
using these funds and the interest earned on them to purchase land, the
Bureau augmented its appropriations. The Bureau also did not comply
with its sale authority when it sold the land, and none of the funds
retained in escrow accounts or used in this manner were tracked in the
Bureau's financial management system.''
As a result, GAO stated, ``[W]e believe that the Congress may wish
to consider directing the Service and the Bureau to discontinue their
land exchange programs.'' 8
---------------------------------------------------------------------------
\8\ Ibid.
---------------------------------------------------------------------------
GAO's findings raise serious concerns about federal land exchanges.
Although there are times when exchanging federal lands for nonfederal
lands may appear like a good solution, BLM and the Forest Service must
be cognizant of the issues raised by GAO. In fact, the Department of
Interior recently announced the creation of a new team that will
provide an action plan for consolidating appraisal functions performed
by various agencies within the Department of Interior.
TCS believes that land exchanges that occur through the legislative
process are more prone to misuse and political influence than those
occurring through the administrative process. Legislative land
exchanges that are conducted for political reasons are less likely to
ensure that land is properly valued and the public interest is
protected.
Taxpayers for Common Sense has been concerned with land exchanges
for years. In 1998, TCS also testified about land transfers and
exchanges. Then as now, TCS urged that taxpayers deserve a fair return
on the public's investment.
Specific Taxpayer Concerns Regarding H.R. 2907
Under H.R. 2907, Yavapai Ranch will keep its grazing allotment and
water rights to three wells on the properties that it transfers (the
Forest Service will be entitled to half the production in each of the
wells up to 3,100,000 gallons a year). In effect, H.R. 2907 allows
Yavapai Ranch to ``have your cake and eat it too.'' Yavapai Ranch can
continue its ranching activities and water usage on the lands it has
exchanged to the federal government while receiving extremely valuable
land throughout the Verde Valley.
The conservation, or water restriction, easements on two parcels of
federal lands to be given to Yavapai will decrease the fair market
value of the federal property. It appears that these restrictions could
be evaded or irrelevant to actual potential water use, therefore
obviating the utility of water restriction easements on these two
parcels of land. As a result, these water restrictions would reduce the
estimated value of these two parcels of federal land without actually
achieving their goal.
Along with allowing Yavapai Ranch to keep its grazing rights, H.R.
2907 also requires the Forest Service to reimburse grazing rights of
those entities that are currently grazing on the federal lands that
Yavapai will receive. The cost of reimbursing these grazers should not
fall completely on taxpayers.
Under a legislated land exchange, the public will not see the
appraisal of federal and nonfederal lands to be exchanged until after
the deal is completed. This leaves the public with little recourse to
affect the land exchange. Secrecy in completing land deals is bad
policy and hurts the public trust in the process. It makes taxpayers
and local communities feel like their interests and concerns are
secondary. Instead, appraisals should be a matter of public record
prior to the signing of land exchange deals. By making the federal land
exchange appraisal process more transparent, BLM and the Forest Service
can get more public buy-in to the end result, thereby reducing
controversy and concerns around pending land exchange deals.
Under this bill, if the Secretary of Agriculture lacks adequate
staff or resources to complete the land exchange, Yavapai can hire
third-party contractors, subject to mutual agreement of the Secretary
and Yavapai Ranch, to carry out activities necessary to complete the
exchange by 18 months after H.R. 2907 becomes law. The Secretary must
reimburse Yavapai for costs associated with these contractors. This
provision sets up a potentially strange dynamic where a private entity
can force congressional appropriators to fund administrative costs for
a land exchange, even if those appropriators chose for policy reasons
to defund federal land exchanges.
Finally, local communities in the Verde Valley are extremely
concerned regarding this land exchange. Letters and petitions have been
sent. Fifteen out of 31 elected officials in the Verde Valley are
opposed to this land exchange being proposed. This is further evidence
that the public would like more input into the process rather than
being excluded from negotiations. Based on this and other public and
taxpayer concerns, this land exchange should not be legislated, but
should instead go through the administrative process. Allowing the
public to be more involved could go a long way towards ensuring local
communities and federal taxpayers that their concerns are being taken
seriously and addressed.
Conclusion
In conclusion, H.R. 2907 raises numerous taxpayer concerns related
both to this specific land exchange and to the federal land exchange
system in general. Congress should implement a moratorium on all land
exchanges until such time that the public can be ensured that ``the
land being exchanged was appropriately valued or that exchanges served
the public interest or met other exchange requirements.'' 9
We should eliminate legislative land exchanges because they are too
susceptible to political influence. Instead, land exchanges are an
administrative function and should be removed from the political arena.
---------------------------------------------------------------------------
\9\ GAO/RCED 00-73.
---------------------------------------------------------------------------
Specifically, the Yavapai land exchange raises numerous questions
regarding valuation of the federal and nonfederal properties, the right
of Yavapai Ranch to retain water and grazing rights, local community
opposition, and the inability of the taxpayers to see land appraisals
until after the exchange deal has been completed. These problems raise
concerns of fundamental fairness to both local communities and American
taxpayers.
Thank you again for the opportunity to testify today and I would be
happy to answer any questions you might have.
______
Mr. Renzi. At this time, we would like to move to questions
of the members. I remind the members under Rule 3(c), we impose
a 5-minute limit on questions. At this time, I would like to
recognize the gentleman from Arizona, Congressman Hayworth.
Mr. Hayworth. Thank you, Mr. Chairman.
Mr. Rey, thank you for joining us this morning. If my
understanding is correct, I believe you testified at the Senate
hearing that it could take seven to 8 years to complete this
exchange if we do not do it by legislation. Is that still the
correct estimate?
Mr. Rey. That would be the optimistic scenario absent any
appeals or legal action that might follow a major land exchange
like this.
Mr. Hayworth. As is often the case in panels, and for the
record, I thought it was interesting to hear critical
discussions as if we are not taking into account different
points of view, and we welcome all of the panelists because
there are substantially different points of view on this that
is now being made part of the public record even as we speak.
Mr. Rey, you also mentioned in your testimony that this
exchange could result initially in $1 million worth of savings,
I believe I heard in your testimony. Could you expound upon
that?
Mr. Rey. That is just an example. That may be the simplest
one to describe because we won't be doing land line locations
throughout an extended checkerboard ownership and we can
quantify that directly in terms of what our average land line
costs are per linear foot.
But more broadly, you know, you have to consider that the
status quo is not going to remain static absent this exchange.
Within that checkerboard are areas that are susceptible to
development. If some of those checkerboard private acres are
developed, then our costs for managing our ownership within the
checkerboard will escalate dramatically. Just our fire fighting
and fire suppression costs alone will go through the roof
because we will be bound to try to protect some of the
subdivisions that are created within that checkerboard.
So this is an important land exchange to get us out of a
land ownership pattern that is archaic and dates back over 160
years.
Mr. Hayworth. Thank you, Mr. Rey.
Mayor Dickinson, you have testified that the 2,200 acre
Camp Verde parcel is a local place for future community growth
and that placing a regional shopping center and other
development in that area, if possible, is a better place to
channel future development in your town than along the bottom
lands of the Verde River. Do your fellow council members agree
with that assessment?
Mr. Dickinson. Yes, that is indeed correct. At the current
time, we have a seven-person council, and six members of which
are in favor of this exchange, and the idea of putting the
development on the freeway, where there is proper access, away
from the Verde--I mean, any other land that we have available
for commercial development, it is a piece here, a piece there,
mixed in with residential, not proper access. It is just really
along the freeway is where we need to build a tax base for our
community.
Mr. Hayworth. And the council vote was six to one--
Mr. Dickinson. Our current council sits six to one, and Mr.
Groseta was indeed correct. It has been an issue that got arm
wrestled out. But the community at this point, for about the
last 9 months now, has been real strong on it and in recent
months the logical sense of all of this has really come to the
forefront. Our council is strongly in support of this.
Mr. Hayworth. Mr. Mayor, I would appreciate that, and I
think we would note in public policy it is rare when we get
complete unanimity on questions of these types. Our friend, the
late John Rhodes, used to say that public policy results in the
art of what is possible, not what is always agreed to
throughout, and so certainly we are dealing with this today and
we welcome all the testimony.
One final question for Mr. Rey. Mr. Rey, recently, the
environmental group Public Employees for Environmental
Responsibility, or PEER, claimed that violence against Federal
employees has increased due to Bush administration policies.
Have you had a chance to review that analysis to verify its
accuracy, and how would you respond to the claims of PEER in
general?
Mr. Rey. When we saw that release a couple of months ago, I
asked Forest Service law enforcement to go back into the data
base that PEER requested through the Freedom of Information Act
to use to build that claim. What we found, and I will make this
report available for the Subcommittee's record, is that the
threats and assaults against Forest Service employees actually
declined by 40 percent over the last year. So it is an enigma
to me how PEER managed to mis-analyze the data to show an
increase when the data actually show a reduction.
The second allegation, that these are somehow the result of
Bush administration resource management policies, ignores the
fact that most of the threats or assaults were made by drunks,
drug runners, and devoted environmental protesters.
Mr. Hayworth. Mr. Rey, I thank you for your response and I
thank all of the panelists. I think we have a new definition of
peer pressure. I yield back.
[Laughter.]
Mr. Renzi. I thank the gentleman from Arizona.
I recognize now the gentleman from Washington, Mr. Inslee.
Mr. Inslee. Thank you. Mr. Rey, I am sure you don't lump
all those groups together.
Mr. Rey. No.
Mr. Inslee. It was just a coincidence that--
Mr. Rey. Those were just the three largest categories.
Mr. Inslee. I appreciate that clarification.
[Laughter.]
Mr. Inslee. Maybe I could just ask the panel in general
about this issue, and not knowing the area, not very well
versed in this conservation easement issue, but is this
mechanism different than a water rights retention, and if not,
why not? Why not a water right--why not a transfer or retention
of water rights as opposed to a, quote, ``conservation
easement''?
As I understand the conservation easement, you are trying
to affect the surface usage of the land but not necessarily
specifically adjudicating or handling the specific water right.
Is my understanding correct, and maybe you could just address
the effectiveness of this. I know a question has been raised
about a potential loophole of one or two of the municipalities
being able to use this one aquifer. If all of you, if you can,
address the enforceability and how this affects the water
rights itself. That is an open question to anyone.
Mr. Dickinson. The enforceability in Camp Verde, we feel
like is going to be done through the zoning and the planning
and zoning process. When this land goes into private ownership,
it is going to carry the current zoning on it, which is RCU-2A,
which historically was a zoning classification designated by
Yavapai County in the late 1950s, early 1960s as they were
unsure about how Yavapai County would develop. It stands for
Residential or Conditional Use, Two Acre Minimum. So when
somebody acquires Forest Service land, they have two-acre
zoning.
Obviously, two-acre residential zoning along a busy
freeway, where it is a prime spot for commercial development,
is not the zoning that is going to be needed. As soon as this
legislation is passed, the town of Camp Verde would move to
adopt those conservation easements as part of the land use and
the zoning on that so that any applicant that comes forward
with a planned area development or any development issue
whatsoever would be forced, if that zoning did not look like
that it met those water conservation easements, it wouldn't be
approved.
The underlying factor of this is also, as you may or may
not know, in our State, Salt River Project carries a pretty big
stick about water issues, as well, and they are going to be
monitoring that. The 700 acre feet that have been allotted for
the Camp Verde piece, we think is a fair and accurate
allocation of water. It is not too much. It is not too little.
But it was sensible enough that the Salt River Project was
involved in those negotiations.
So just through this planning and zoning process, we feel
locally we can control that water usage.
Ms. Roder. Congressman, we have concerns that there are
ways to get around this, similar to the concerns raised by the
Department of Agriculture, that there is a loophole with the
ability to go out to the private water market and which would
mean that we would potentially devalue the Federal lands that
are being exchanged to Mr. Ruskin without actually achieving
any of the conservation goals that we are seeking.
Mr. Inslee. Could you describe how that would work? When
you say go out to the private water market, what do you mean?
Ms. Roder. Well, there is a provision, Congressman, that
they potentially can, from our reading of it, go above the 700
acre feet within the one parcel and the 150 acre feet within
the other parcel on the water market and purchase additional
water, which would mean that the actual goal of conserving
water in this area, which seems to be one of the greatest
concerns of the people of the Verde Valley, as the folks that I
have talked to, would then be obviated. At the same time, we
would devalue the Federal land, making the deal a lot worse for
Federal taxpayers.
Mr. Inslee. Is the conservation easement a retention
independent of the municipal zoning? Is that correct? In other
words, there would be in the title an easement, is that
correct?
Mr. Rey. That is correct.
Mr. Inslee. And is there a retention of water rights itself
or a transfer of water rights itself in the proposed
legislation?
Mr. Rey. The easement is a transfer of water rights, or the
use, the right to use water.
Mr. Inslee. I am trying to wrap my arms around that,
because to me, a conservation easement is a restriction of land
usage, whereas a water right would be a legal right to the
usage of the water itself. What I am hearing is there is the
former, namely there is a restriction of land usage, which by
implication you would assume would reduce or sort of compel
certain usages of water, but there is not a specific
legislative description of the water right. Am I correct on
that, or do I misunderstand this?
Mr. Rey. I think--let me see if I can explain it, and I
don't hold myself out as an expert in water rights. In this
particular case, the water is the value. Without water, the
land has a much reduced value. What many proponents of the
exchange would like to assure occurs is that the lands are not
developed beyond the point such that the water usage associated
with that development becomes a problem within the Verde
Valley.
So what the easement does is essentially purchase part of
the water right and convey it into public ownership, or retain
it in public ownership. Now, that will have the effect of
devaluing the land, but since we are retaining the value of the
water in public ownership, the devaluation of the land isn't of
great concern to us. It all evens out.
Now, if it is theoretically possible to purchase water from
the outside, and I doubt that it is given the scarcity of water
in this particular area, but even if it is theoretically
possible, the cost of purchasing that water is going to be an
added cost to whatever landowner wants to try to do it. The
government isn't losing anything by breaking up the water and
the land rights in this case because we are retaining the water
rights.
Mr. Inslee. Thank you.
Mr. Renzi. Thank you. I will move to Mr. Duncan for a
statement or questions.
Mr. Duncan. Thank you, Mr. Chairman. I don't have any
questions, but I will say that I note that Mayor Dickinson is
here representing eight different mayors, he says all of whom
strongly support this legislation. I do hope that Mr. Groseta's
concerns can be taken care of in some way.
But I heard the last witness say that the politics should
be removed and the political influence should be removed.
Actually, politics is just a way for the people to have some
say-so in or control over their own government. It seems to me
that to be a very elitist attitude to say that the will of the
great, great majority of the people should be ignored and that
this decision should be left with unelected bureaucrats, and it
is obvious that the great, great majority of people there do
support this, with the support of the members of Congress and
all the mayors in the cities, and so it appears to me that this
is good legislation which we should support.
I yield back the balance of my time.
Mr. Renzi. I thank the gentleman.
Mr. Udall?
Mr. Mark Udall. Thank you, Mr. Chairman. At this time, I
don't have any questions. I did want to thank the panel for
taking the time to join us. It has been very helpful to me to
get a better sense of what we face. Thank you.
Mr. Renzi. I thank the gentleman.
Mr. Flake?
Mr. Flake. I will just echo Mark's comments, or the
Congressman from Colorado. I am glad to have the panel here. I
am sorry I was not able to hear most of the testimony, but I
have read some of it and I am in support of this deal and am
glad to hear the supporting comments from the panel. Thanks.
Mr. Renzi. Thank you, Mr. Flake.
Mr. Udall of New Mexico?
Mr. Tom Udall. Thank you, Chairman Renzi. My question goes
to the waiver of the NEPA process. I see there are a number of
letters here, one from the North Central Arizona Regional Water
Consortium that talks about there is no mechanism for ensuring
the people of the United States receive fair value in exchange
for public lands. It also talks about why aren't we going
through a public process. A lot of these considerations that
are out there ought to be fleshed out in a public process
rather than just having one hearing here in Washington.
Somebody else raises the issue there is currently not enough
water in this area to support the land that is already owned.
Can you speak to the issue of why we are waiving NEPA,
which is a process that normally allows planning and public
input there at the local level?
Mr. Rey. It is not uncommon in large legislated land
exchanges for the Congress to decide that the legislative
process will stand as an adequate or more than adequate
substitute for the public process associated with NEPA. The
legislative process is, I think, a public process. This is the
third hearing at which I have personally testified, so it has
been exhausting for me, at least, speaking for nobody else
comfortably. But it is not unusual for a legislated land
exchange to waive NEPA.
Mr. Tom Udall. Well, I know that is not unusual, Mr. Rey,
but why are you doing it under these circumstances?
Mr. Rey. I am not.
Mr. Tom Udall. What is the argument for--are you support
it? Is the Department of Agriculture supporting the waiver in
this legislation?
Mr. Rey. We have indicated, in the context of the amount of
analysis that has already been done as well as the amount of
review that Congress has put to this land exchange, that we
don't object to NEPA being waived. There is some question as to
what additional utility a full-blown NEPA review would serve.
It would certainly delay the culmination of this exchange
significantly. It would establish additional grounds for
litigating an exchange which presumably, if it passes Congress,
the Congress wants to see done. And it would probably cost us
and/or the other parties to the exchange a couple of additional
extra million dollars to process the NEPA documents.
Ultimately, the Congress has to decide whether you want
NEPA complied with, but as has been the case in virtually every
other legislated land exchange, Congress has decided that their
own deliberations stand as a more than adequate substitute for
agency proceedings under NEPA.
Mr. Tom Udall. It seems to me, with all the controversies
that are here in these documents, that the NEPA process would
be a better one in terms to try to accommodate those at the
local level and I am a little surprised that your agency isn't
more deferential to local people and the planning process.
I would like to ask Ms. Roder the same question and if she
has any comments on this issue.
Ms. Roder. Thank you, Congressman. I would definitely agree
that we need to go through the administrative process here.
That would allow public hearings within Arizona, where the
people are actually being affected. And there are 3,800 people,
constituents in this area, who have signed a petition asking
for the removal of the Clarkdale and Camp Verde sections of
this land exchange. They are not able to be here in Washington,
D.C., to speak to all of you and we believe that they should
have that opportunity.
We also believe we should have the opportunity to see an
appraisal prior to this land exchange. I mean, once it is
completed, I can go for public inspection in the offices of
several national forests, but that doesn't really help us once
we have actually completed a land exchange.
I have received calls from Jerome Vice Mayor Jay Moore,
Cottonwood's council member Diane Jones, Camp Verde council
member Tony Drea, and I know that there are numerous other
elected officials in this area who are deeply concerned about
this and they should have the opportunity to go through the
administrative process and be able to speak their minds about
this issue so that we can make sure it is the best deal for
both Mr. Ruskin and the Federal taxpayer. Mr. Ruskin has
admitted to reporter Ken Olson in an article that this land
exchange, he would not be able to get it through without
Congress's help, which to me says something about the process
that we are going through here.
Mr. Tom Udall. Thank you. It also seems to me that NEPA
would direct the Forest Service to look at alternatives under
that process and then maybe some of the more controversial
parcels could be excluded from this particular deal.
With that, Mr. Chairman, thank you very much and I yield
back. Thank you to the panel.
Mr. Renzi. Thank you, Mr. Udall.
Let me take privilege here and use my 5 minutes on a couple
of--to help clarify a couple issues.
First of all, this exchange has taken many, many years. Ms.
Roder, there have been over 80 public meetings, hearings, town
halls. I have had five town halls myself in Yavapai, in the
Verde Valley area, in Sedona. I met with the opposition,
visited the land three times. Over 80 public hearings and
meetings, going all the way back to 2000.
It is a complicated trade and we took our time with it in
my office. It was introduced in the 107th by the gentleman from
Arizona, Congressman Hayworth, on the Senate side by Senator
McCain. The Grand Canyon Trust, who is not normally friendly to
many of my positions, has endorsed it.
And one of the reasons why we are looking at trying to come
up with a legislative process and have now moved away from the
administrative process is because it has taken so long. There
have been 90 jobs last year lost in Flagstaff with one company
who has moved out of the area because they have inability to
get in and out of the airport, which is landlocked by Federal
land.
Williams is out of water. The people in Williams will not
drink, and the water they drink now is 8 percent of their
capacity, unless we fix this. As has been said, over 6,000 or
7,000 children will benefit. Never mind the fact that the
largest private Ponderosa pine forest in Arizona, with the
largest non-fenced antelope range in Arizona will be exchange,
pristine land for impacted land.
For all these reasons and the greater good, I got behind
this, and I took my time with it because I was concerned, as
you were, particularly with the water conservation areas that
Mr. Inslee talked about. But the water conservation portion
written by Mr. Kyl limits the amount of water that the Yavapai
Ranch can use.
You talked about the fact that you think there is a
loophole and the fact that they could use a private water
company. We are still talking about one house per two acres. So
whether they go down and drill their own well and stay out of
the Aluvian, which feeds into the Verde River, or they tap into
the local water company, they still can only use the amount of
water that supports a family of one house per two acres. And so
in itself, it restricts the amount of water that will be used,
and it is a compromise that we reached out to with the
environmental community, and particularly those concerned with
water use.
I would like to move to Mr. Groseta's issue, Mr. Rey, as it
relates to the cattlemen. I felt it would be a hypocrisy for me
to be pushing legislation in the next few months in developing
a Cattlemen's Bill of Rights and not address the issue of
reimbursements for our cattlemen in America as it relates to
loss of use for its betterments and improvements. Historically,
your agency has done a wonderful job of reimbursing cattlemen
as it relates to betterments and improvements. The cattleman
goes on the land. He gets a contract, permit for 10 years, puts
wells in, corrals, invests his life savings into it, many times
has to borrow second mortgages to do it, and then we come along
and tell him, well, you have got 2 years to get off the land.
Fundamentally, let me understand, when we take our
cattlemen off the land--and let me just back up for a second.
The Tonto Range the gentleman from Arizona represented so well
for many years used to support 50,000 cattlemen. We are now
down to less than 500. Not just the drought, but policies are
forcing the Arizona beef industry and the cattlemen off the
land.
I would ask you, where is it we are missing in recognizing
loss of use for our cattlemen?
Mr. Rey. Let me try to describe how the current situation
works, and it is hopefully a little bit simpler than the water
issue. We have well-established procedures that if we need to
reduce or terminate usage of one of our permittees, that we
will reimburse them for improvements that they have made on the
range, and typically when we have to do that, we normally
arrive at an acceptable result in terms of the value of those
improvements.
As far as the loss of use, however, it is at present well
established law in the Tenth Circuit and elsewhere in Arizona
and New Mexico--Arizona is in the Ninth Circuit, New Mexico is
in the Tenth Circuit, but I think both circuits have held the
same holding--that a permit to graze on Federal lands is a
privilege and not a right.
So there is a disconnect in the legal system, I guess you
could say. On the one hand, for taxation purposes, the IRS
looks at a grazing permit as an asset that has value that is
taxable. On the other hand, insofar as regulating grazing use
on Federal lands, we have established as a matter of law that
grazing use is not a privilege and, therefore, not compensable
if it is reduced or eliminated.
If the decision in this bill is to reimburse Mr. Groseta
for the loss of use, I don't think you will have much problem
from the administration. I would suggest, however, that if you
do that, that you make it clear that you are not trying to
establish a precedent in this bill to change the established
jurisprudence on the status of a grazing permit, and you might
also want to just work on establishing what the number is--
Mr. Renzi. I appreciate it.
Mr. Rey. --and save both Mr. Groseta and us some time.
Mr. Renzi. It is not just Mr. Groseta. There are three
permittees which I particularly emphasize to my colleagues
includes the Yavapai Apaches in Camp Verde. Fundamentally for
me, I recognize that when you kick cattlemen off the land, that
there is a loss of use, and I think it is a philosophical
argument that we can carry forward.
I think we will go for a second round here. Congressman
Hayworth from Arizona?
Mr. Hayworth. Thank you, Mr. Chairman. Just a couple of
questions.
Mr. Rey, to follow up, it has been cited in testimony by
others in a June 2000 report on land exchanges. What changes
has the Forest Service made as a result of that GAO report in
June of 2000?
Mr. Rey. The June 2000 GAO report was followed in short
order by a Department of Agriculture Office of Inspector
General report. We have issued a new set of directives to the
field to respond to the recommendations of both the GAO and the
Inspector General. I will make those new directives available
for the Subcommittee's record. I would suggest that much of the
concern raised about previous Forest Service procedures have
been addressed by those directives.
Mr. Hayworth. Thank you very much, Mr. Rey.
In listening to some of the questions and some of the
responses in the first panel, Mr. Chairman and my colleagues,
it seems there is a paradox here. On one hand, we received
testimony that this would be a waste of taxpayers' money. On
the other hand, there are those who want to see an
administrative process continue that would eventually cost
taxpayers more money, and we fail to take into account what
might transpire in terms of economic enterprise for communities
such as Camp Verde and what that would do for the tax base, and
also what the open space provisions would do environmentally.
And indeed, as the Chairman pointed out, there are some
environmental groups who have endorsed the project.
Ms. Roder, I thank you for coming today and offering your
testimony and I was especially interested to hear your take
that the administrative process is, in your view, far more
desirable than the process of Congress dealing legislatively
with land exchanges. I would respectfully submit that the
essence of public interchange and scrutiny comes through the
elective process. All of my colleagues here, Republican,
Democrat, Libertarian, vegetarian, Independents, all of us who
serve in the Congress of the United States must stand at the
bar of public opinion every 2 years. We are ultimately
accountable to the people.
And while I appreciate the fact that you cited some public
officials who had a different take on this who are unable to
come to Washington, I think the reverse might be asked of you.
Have you had a chance to visit Arizona and visit with Mr.
Renzi's constituents firsthand on the property site and see
what is transpiring there with this land and with the exchange.
Ms. Roder. I have been to Arizona, Congressman--
Mr. Hayworth. No, the question--
Ms. Roder. --but not to this particular land exchange.
Mr. Hayworth. That is my question. Have you been to visit
firsthand with the people there, the land holdings there, that
you this morning testify against?
Ms. Roder. No, Congressman, but 3,800 people--
Mr. Hayworth. That speaks volumes, ma'am. I have no further
questions.
Mr. Renzi. I thank the Congressman.
We will get one more question out of the gentleman from
Washington and we will take a break.
Mr. Inslee. This may sound like a rookie question, but I am
going to ask it. Essentially, what we are doing in this
legislation is we are directing the Forest Services to go out
and do these appraisals and giving, as I understand it, a
preapproval to whatever appraisal process they come up with and
the lands they select. Is that correct?
Mr. Rey. Not quite. What you are directing us to do is to
use the Uniform Standards of Federal Appraisal, so that is a
known appraisal process, and the legislation does then put
together a list of the order for the exchanges to occur. So
there are more knowns in what you are directing us to do, given
that we know what the Uniform Standards of Federal Appraisal
will do.
Mr. Inslee. So if you were going to pick a percentage, if
you were going to draw a map today of what you think would be
involved in these exchanges, what parameters are there that
change in the appraisal process, do you figure?
Mr. Rey. I would say that the changes will be on the
margin. What you are doing is anticipating what the rough
appraised value would be. That will then go through the formal
appraisal, and then if we have to adjust, there are provisions
in the bill for adding or deleting tracts at the bottom end to
make sure that it is a value for value exchange.
Mr. Inslee. Thank you.
Mr. Renzi. I have one more question and then we can take a
break. The gentlemen can leave anytime they want for the vote.
I want to recognize the mayor from Clarkdale, Mike Bluff,
to help me--early on, he helped me understand an issue as it
relates to access. Mike, do you mind rising? Without objection
from the panel, I would like to recognize Mayor Bluff.
Mr. Groseta talked about access, in particular near
Clarkdale, and one of the reasons being that he would like to
see that parcel dropped out. Can you help me understand that a
little bit better?
Mr. Bluff. Sure. Thank you very much for giving me the
opportunity to speak. The portion that is in Clarkdale was
annexed about 2 years ago and that actually abuts our town
limits right now. So there is--from my perspective, it is not
landlocked. It touches our boundaries now. There is access from
the existing Town of Clarkdale into that area or we wouldn't be
able to annex it. There is not a road through there now, but
you can access the parcel that we are talking about, the
Clarkdale parcel, through the Clarkdale, the existing Clarkdale
town limits.
Mr. Renzi. Mayor Bluff, the parcel that Clarkdale would be
receiving or that you would be working on as far as rezoning
and all then would not be landlocked from your perspective? You
know the parcel better than anyone.
Mr. Bluff. Absolutely not. Absolutely not.
Mr. Renzi. OK. I appreciate that.
One other just real quick question, Ms. Roder. When you
talk about the appraisal process and you talk about not having
it disclosed ahead of time, the Forest Service would be able to
pick from a credible appraiser, certified appraiser, that would
then have the objective to go out and conduct the public
interest, in the public good. Are you suggesting that they
don't have the ability to do that?
Ms. Roder. We are suggesting, Congressman, that there needs
to be more openness in the process. We do need to have
independent appraisals so that we can make sure that lands are
being properly valued, and as was found by the GAO, they were
having a hard time accomplishing that goal, and as such, we
think that an independent appraisal process needs to occur and
it needs to be revealed to taxpayers prior to land exchanges.
Mr. Renzi. Ms. Roder--
Mr. Rey. Can I offer a clarification there, because I think
we are missing something.
Mr. Renzi. Yes, sir.
Mr. Rey. First of all, per the GAO recommendation, we do
use independent appraisals and we do use the Uniform Federal
Rules of Appraisal. Second, appraisals are never made available
to the public in any land exchange until they are completed and
reviewed, because preliminary information may be wrong or, in
some cases, sensitive.
Mr. Renzi. Thank you. Fundamentally, what the argument goes
to, I think, is that somehow the public would be ripped off on
this deal. What I need to really point out for the record is
that the pristine lands that are owned by Yavapai Ranch right
now, again, the largest stand of Ponderosa pine forest in
Northern Arizona, could be developed right now. Golf courses
could be put in. All the water use up there--the Ruskin family
owns 24 pond and well sites and they are willing to give up 21
of them and only retain three, in exchange for impacted land
along a freeway, impacted land that has a dump and a shooting
site, a little part-time shooting range right now, and it has,
when I went up there, people who camp out on it.
And so I want at least the element of truth for a guy who
walked the parcel three times and met with groups on both sides
and came into this only trying to look at what would be the
greater good. It needs to be understood that we are talking
about exchanging pristine land which is next to a wilderness
area, the Juniper Wilderness Area, in exchange for impacted
land.
And with that, I want to thank all of you for your
testimony, for coming here to Washington, D.C., for your
expertise and for a good debate. Thank you so much.
We will take a break now for votes.
[Recess.]
Mr. Renzi. Thank you. I appreciate your patience coming
back from that vote.
We are going to introduce the second panel, testifying on
H.R. 3247.
Mr. Renzi. On panel two, we have Congressman Tom Tancredo
of the Sixth District of the State of Colorado; Mr. Mark Rey of
the United States Department of Agriculture; Mr. Larry
Parkinson, Deputy Assistant Secretary for Law Enforcement and
Security, U.S. Department of Interior; Mr. Larry Smith,
Executive Director of Americans for Responsible Recreational
Access; and Mr. Dave Jenkins, Director of Conservation and
Public Policy, American Canoe Association.
I welcome you all to what is almost this afternoon. Thank
you for coming.
Let me remind the witnesses on Committee rules. You have 5
minutes for your oral testimony. I would like to now begin by
recognizing the gentleman from Colorado, Mr. Tancredo.
STATEMENT OF HON. THOMAS TANCREDO, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF COLORADO
Mr. Tancredo. Thank you, Mr. Chairman. Thank you for
holding this hearing today on H.R. 3247, the Trail
Responsibility and Accountability for the Improvement of Public
Lands Act of 2003. I am pleased of the number of cosponsors on
this Committee, including Mr. Udall and Mr. Beauprez, along
with other gentlemen on the Committee, and I want to thank you
for that cosponsorship.
Those of us privileged to represent Western States here in
Congress know of the long-running battle between Federal land
agencies and private interests. This is especially so since the
Federal Government is the landlord of so much of the land in
the Western part of the United States.
Historically, issues of contention have often arisen
surrounding grazing rights, mining and drilling rights. Today,
these public land debates are often characterized by access to
public lands for different recreational activities, all of
which have an enormous and positive economic impact on the
communities we represent.
In the last 20 years, Americans have found new ways to
enjoy their public lands and waterways beyond just hiking,
horseback riding, or power boats. Today, mountain bikers, ATVs,
SUVs, and snowmobiles also use our public lands. Many of these
vehicles represent the only access to the great outdoors to a
whole segment of our population, like senior citizens and the
disabled, that might not otherwise be able to get out and visit
the beautiful places like the Pike National Forest in my
district.
The economic impact for Colorado of these kinds of
recreational activities contributes more than $200 million a
year to our economy, creating more than 3,100 jobs. With those
economic benefits, however, there have come conflicts and some
irresponsible people.
No one here will say that there haven't been problems with
certain individuals and groups abusing, misusing, and in some
instances destroying valuable property on our Federal lands.
Over the Memorial Day weekend in 1997, vandals destroyed a
national treasure, the Eye of the Needle, an 11-foot sandstone
arch on BLM land in the Upper Missouri National Wild and Scenic
River Area in Montana that was so impressive that Lewis and
Clark wrote about it in their journals. Because of the actions
of these thoughtless people, future generations have been
deprived of the opportunity to view the unique natural wonder.
Two years ago, on New Year's Eve, thousands of off-road
enthusiasts convened at the Imperial Sand Dunes Recreational
Area in California. One Forest Service ranger described the
situation this way, quote, ``We don't want to send any officers
down there because we can't be sure it is safe.'' In describing
the problem, one off-road enthusiast put it this way. ``It is a
total weekend warrior thing. A handful screw up for the
masses.'' For the good of our public lands and for those
citizens who behave responsibly, we cannot ignore such
instances.
I visited the Coronado National Forest, the Organ Pipe
Cactus National Monument in Southern Arizona. These places are
home to some of the most spectacular terrain and wildlife
habitat in the American Southwest. They are also home to some
of the worst vandalism you can imagine. Graffiti covers rock
formations and cactus. Garbage is strewn across the desert.
Unauthorized roads and trails mar the landscape. If we are to
preserve these areas for future generations, we must make those
who intentionally destroy them pay a price.
As I have said, outdoor recreation on our public lands and
waterways will continue to grow, and it should. It is now time
we equip our land managers with the means to appropriately and
even-handedly enforce land use regulations. The TRAIL Act
accomplishes this by creating consistent fines and penalties
among all of our land use agencies. In doing so, the bill also
increases fines and penalties substantially for people who
knowingly engage in inappropriate behavior.
The bill also allows the agencies to retain the fines that
are collected for repair and maintenance on these public lands
and for outreach and educational programs to train outdoor
enthusiasts on what is and what is not appropriate behavior.
Mr. Chairman, I look forward to hearing from the witnesses
today. If they have suggestions on how we might improve this
legislation, I hope they will share these ideas with us. I also
hope that in the not-too-distant future, our Committee will
report this measure to the full House for its consideration.
Our public lands are too important to be left unattended by
inadequate penalties for inappropriate behavior. The law
enforcement ability of our Federal land agencies needs to be
strengthened, and I believe H.R. 3247 is a major step in that
direction.
Mr. Renzi. I thank the gentleman from Colorado.
[The prepared statement of Mr. Tancredo follows:]
Statement of The Honorable Thomas Tancredo, a Representative in
Congress from the State of Colorado, on H.R. 3247
Mr. Chairman:
Thank you for holding this hearing today on H.R. 3247, the Trail
Responsibility and Accountability for the Improvement of Lands Act of
2003. I am pleased that you have joined in cosponsoring this measure
along with our colleagues from Colorado, Mr. Udall and Mr. Beauprez,
along with many of our other colleagues on this Committee from both
sides of the aisle. I also want to recognize and thank you for the past
work you have done on similar enforcement legislation. Today's
legislation was built upon your work.
Those of us privileged to represent western states here in the
Congress know of the long-running battle between Federal land agencies
and private interests. This is especially so since the Federal
Government is the landlord of so much of the land in the western part
of the U.S.
Historically, issues of contention have often surrounded grazing
rights, mining and drilling rights. Today, issues of contention now
include the matter of access to public lands for recreational
activities--activities have an enormous and positive economic impact on
the communities that we represent.
In the last twenty years, Americans have found new ways to enjoy
their public lands and waterways beyond just hiking, horseback riding,
or powerboats. Today, mountain bikes, ATVs, SUVs, snowmobiles, and
personal watercraft are used in a variety of ways on our public lands
and waterways. Many of these vehicles represent the only access to the
great outdoors to a whole segment of our population--folks like senior
citizens and the disabled--that might not otherwise be able to get out
and visit beautiful places like the Pike National Forest in my
district.
In some states like California, registrations of off-highway
vehicles have doubled in the last 20 years. At the same time, we have
seen an increasing amount of public lands placed ``off limits'' to this
kind of recreation. The growth in the popularity of this activity,
coupled with a reduction in the amount of available land to pursue it,
has led to conflict and a challenge for public lands managers.
In my own State of Colorado, outdoor recreation has become
increasingly popular among our citizens. From 1995-2003, snowmobiling
has grown by more than 100%, jet skiing by nearly 100%, and horseback
riding by 30%, to name just a few types of outdoor sporting activities
on the rise. These statistics simply confirm what many of us already
know: Coloradoans love to be outdoors and to enjoy our beautiful
State--and one thing is certain: This type of recreation will only
increase in the coming years.
The economic impact for Colorado of these types of recreational
activities is revealing. OHV use in Colorado contributes more than $200
million to our economy, creating more than 3,100 jobs. More than
130,000 Colorado resident and non-resident households use motorized
vehicles for recreation in our State.
The economic impact of white-water rafting jumped from $75 million
in 1993 to $125 million in 2001. Bicycling generates over $1 billion,
and ski and snowboard equipment and apparel expenditures exceed $1.1
billion annually in our State. I could go on with more statistics, but
the important thing to remember is that outdoor recreation is important
to Colorado; it is important for the physical well-being of our
citizens and it is important to the economic well-being of our State.
In short, Coloradoans cannot afford to ignore outdoor recreation issues
on our federal lands.
No one here will say that there haven't been problems with certain
individuals and groups abusing, misusing and, in some instances,
destroying valuable property on our Federal lands. Over the Memorial
Day weekend in 1997, vandals destroyed a national treasure--the Eye of
the Needle, an 11-foot sandstone arch on BLM land in the Upper Missouri
National Wild and Scenic River area in Montana that was so impressive
that Lewis and Clark wrote about it in their journals. Because of the
actions of these thoughtless people, future generations have been
deprived of the opportunity to view this unique natural wonder.
Two years ago on New Year's Eve, thousands of off-road enthusiasts
convened at the Imperial Sand Dunes Recreation Area in California. One
Forest Service Ranger described the situation this way: ``We don't want
to send any officers down there because we can't be sure they'd be
safe.'' In describing the problem, one off-road enthusiast put it this
way: ``It's a total weekend warrior thing. A handful to screw it up for
the masses.'' For the good of our public lands and for those citizens
who behave responsibly, we cannot ignore such instances.
As I have said outdoor recreation on our public lands and waterways
will continue to grow--and it should. It is now time we equip our land
managers with the means to appropriately and evenhandedly enforce land
use regulations. The TRAIL Act accomplishes this by creating consistent
fines and penalties among all of our land use agencies. In doing so,
the bill also increases fines and penalties substantially for people
who knowingly and willfully engage in inappropriate behavior. The bill
also allows the agencies to retain the fines that are collected for
repair work and maintenance on these public lands, and for outreach and
educational programs to train outdoor enthusiasts on what is and what
is not appropriate behavior.
Mr. Chairman, I look forward to hearing from our witnesses today.
If they have suggestions on how we might improve this legislation, I
hope they will share those ideas with us. I also hope that in the not
too distant future, our Committee will report this measure to the full
House for its consideration. Our public lands are too important to be
left unattended by inadequate penalties for inappropriate behavior. The
law enforcement ability of our federal land agencies needs to be
strengthened, and I believe H.R. 3247 is a major step in that
direction.
______
Mr. Renzi. Staying within the Great Mountain State of
Colorado, cosponsor of the bill, Mr. Udall.
STATEMENT OF HON. MARK UDALL, A REPRESENTATIVE IN CONGRESS FROM
THE STATE OF COLORADO
Mr. Mark Udall. Thank you, Mr. Chairman, and I want to
again express my appreciation to you for holding this hearing
on H.R. 3247.
Let me begin by saying that I am glad my colleague from the
great State of Colorado, Mr. Tancredo, has introduced the bill.
I joined as a cosponsor because I also want to improve the
ability of our land-managing agencies to adequately enforce the
rules that apply to uses of the Federal lands.
I introduced a related bill, H.R. 751, the Responsible Off-
Road Vehicle Enforcement and Response Act, and if you run out
the acronym, that results in ROVER being the acronym for that
particular bill. My bill is narrow in scope. It deals only with
the enforcement of the regulations that apply to using vehicles
on national forest lands and public lands managed by the BLM.
H.R. 3247 goes much further. In addition to the forests and
BLM lands, H.R. 3247 also applies to lands managed by the
National Park Service and the refuges managed by the Fish and
Wildlife Service. It addresses also the enforcement of all
regulations, not just those related to the use of vehicles.
I do think enforcement of regulations is an area where
legislation can be helpful. However, we need to recognize that
it is only one part of a bigger picture. Even more than new
legislation, it seems to me the agencies need more resources,
more money and more people, if we want them to do a better job,
and I intend to explore that particular matter with some of the
witnesses as well as to ask about some of the differences
between my bill and my colleague, Mr. Tancredo's bill.
Mr. Chairman, if I might, in today's Rocky Mountain News,
there is a letter from the Supervisor of the Pikes and Isabel
National Forest in Colorado. The letter discusses ``mud-
bogging,'' quote-unquote, and other activities that violate
Forest Service rules, including the indiscriminate dumping of
trash and discharging firearms in ways that can endanger people
for miles around. This is the sort of thing that prompted me to
introduce my bill, H.R. 751, and to cosponsor Congressman
Tancredo's bill, H.R. 3247. I would ask unanimous consent that
the letter be included at an appropriate place in the record of
today's hearing and would yield back whatever time I have
remaining.
Mr. Renzi. Without objection.
[The letter submitted by Mr. Mark Udall follows:]
From the Rocky Mountain News
Letters to the Editor
October 21, 2003
Seeking solutions to destruction in forests
One of the pleasures of living along the Front Range in Colorado is
being able to gaze up at the mountains to the west and idly dream of
being in the green forest, with clean running water, clean air and just
getting away from it all. But there's something happening in that
forest that is disturbing.
They call it ``mud bogging.'' After 10 or 12 four-wheel-drive
vehicles have tried to make it through a wet meadow, it's
neither lush nor green anymore. After several more attempts, it
is nothing but a worn-out mud hole.
These private natural-resources demolition teams move over a
few feet and try it again.
These mud holes can be very costly for the Forest Service to clean
up and revegetate, if even possible.
Often times, adjacent to the mud hole, is an area where other
equally disturbing activities take place: indiscriminate. shooting and
the dumping of trash. In a few cases, there has been no natural
backstop to this shooting, which could put people several miles away in
jeopardy. This is not what you or I envision as we gaze up at the
mountains.
Policing these areas to stop the activity works, but perpetrators
often merely move to a new area. Policing the whole Rampart Range at
one time is virtually impossible. We must have a new means of managing
these degrading and dangerous activities.
Everyone should be able to enjoy these precious public lands. It
should be a place to ``get away from it all'' and feel safe. It's the
Forest Service's responsibility to provide such an environment.
Therefore, I cannot ignore the problem, but must provide a solution.
Coloradans will no doubt hear more about this in the future as we
solicit their opinions and ideas.
In the meantime, if anyone sees people engaging in these
activities, please report the incident and the description of any
vehicles to the nearest Forest Service Ranger District Office or County
Sheriff's Office.
Bob Leaverton
Fo rest Supervisor, Pike/San Isabel National Forests and Cimarron and
Comanche National Grasslands
______
Mr. Renzi. We move now to an opening statement by Mr. Mark
Rey. Mr. Rey?
STATEMENT OF MARK REY, UNDER SECRETARY, NATURAL RESOURCES AND
ENVIRONMENT, U.S. DEPARTMENT OF AGRICULTURE, ON H.R. 3247
Mr. Rey. Thank you, Congressman Renzi. The Department of
Agriculture supports H.R. 3247. We have some technical changes
that we would like the Subcommittee to consider.
H.R. 3247 makes consistent the penalties for violating
regulations of the National Park Service, the Bureau of Land
Management, the Fish and Wildlife Service, and the Department
of the Interior, and the Forest Service and the Department of
Agriculture. We support such a concept as we work closely with
our fellow land management agencies in enforcement activities,
including local cross-designations of authority.
Consistent enforcement authority would make this
cooperation much easier, aid the public in understanding
regulations and penalties, and assist prosecutors and courts
that must handle cases arising from different Federal
jurisdictions. The bill would change the penalty for violation
of our regulations from one level of offense to two levels, and
we will work with the Department of Justice and the Federal
courts to best ensure advantages of consistent criminal
penalties are fulfilled upon passage.
I would be happy to respond to any of your questions after
the other panel members have spoken.
Mr. Renzi. Mr. Rey, thank you for your testimony.
I move now to Mr. Parkinson.
STATEMENT OF LARRY R. PARKINSON, DEPUTY ASSISTANT SECRETARY,
LAW ENFORCEMENT AND SECURITY, U.S. DEPARTMENT OF THE INTERIOR
Mr. Parkinson. Thank you, Mr. Chairman. I will make this
brief, submit my written statement for the record, and then
open it up to questions.
We strongly support the goal of H.R. 3247. As Mr. Rey
indicated, we also have some suggested technical amendments
that we think would improve the legislation. We look forward to
working with the Committee and the Department of Agriculture
and the Department of Justice to do that.
This has two themes to it. One is consistency in law
enforcement authority and the second is flexibility in law
enforcement authority. Those are both virtues that we strongly
support.
The Department of Interior has three bureaus that are
primarily responsible for enforcing these regulations, as was
indicated in the opening statements, BLM, the National Park
Service, and the Fish and Wildlife Service, and of those three,
we have three different penalty structures. Conceptually, that
doesn't make a lot of sense. The regulations that those three
agencies are enforcing are comparable and I think ought to be
treated comparably.
One other point that I would just highlight in my opening
remarks is we do urge the Committee to adopt the ``knowingly''
standard as opposed to the ``knowing and willful'' standard
that is now set forth in the legislation. We think the best
model that exists out there is the model that exists currently
in the National Wildlife Refuge System Administration Act,
which provides both Class A and Class B misdemeanors, but has a
``knowing'' standard but no ``willful'' standard.
Thank you very much.
Mr. Renzi. Thank you, Mr. Parkinson.
[The prepared statement of Mr. Parkinson follows:]
Statement of Larry R. Parkinson, Deputy Assistant Secretary for Law
Enforcement and Security, U.S. Department of the Interior, on H.R. 3247
Mr. Chairman and Members of the Subcommittee, thank you for the
opportunity to appear before you today. My name is Larry Parkinson and
I am the Deputy Assistant Secretary for Law Enforcement and Security at
the Department of the Interior. I am here to present the Department's
views on H.R. 3247--the Trail Responsibility and Accountability for the
Improvement of Lands Act of 2003.
As discussed further below, the Department agrees that our land
management bureaus should have consistent enforcement authority, and we
strongly support the goal of H.R. 3247. The investigative and
enforcement simplicity offered through the option of applying a Class A
or Class B misdemeanor, as proposed in H.R. 3247, is an attractive tool
for law enforcement personnel. However, we would like to work with the
U.S. Forest Service in the Department of Agriculture, as well as the
Department of Justice, to provide the Subcommittee with specific
changes to ensure that the authority provided by this bill does not
conflict with or, duplicate, our existing authorities.
As currently drafted, H.R. 3247 is intended to amend the existing
enforcement authorities of the National Park Service (Park Service),
the Bureau of Land Management (BLM), and the U.S. Fish and Wildlife
Service (Fish and Wildlife Service), as well as the Forest Service, to
make consistent the ability of these bureaus to charge misdemeanor
offenses for violations of bureau rules and regulations.
As noted above, the Department agrees that consistent enforcement
authority serves important and useful interests. For example, currently
the BLM and Park Service operate under different rules for criminal
penalties for violations of rules regulating the use of fire by
visitors and others on their respective lands. For the NPS, these
violations are classified as Class B misdemeanors, which may result in
a fine of up to $5,000 or up to six months in prison. Class B
violations are strict liability in nature, which means that intent need
not be proved. However, under the current enforcement provisions of the
Federal Land Policy and Management Act, BLM penalties for violations of
land use regulations are set as Class A misdemeanors for all ``knowing
and willful'' violations; BLM does not currently have authority to
charge for a Class B misdemeanor. Therefore, similar violations of
rules regulating the use of fire by visitors and others on public lands
are Class A misdemeanors for the BLM, which may result in a fine of up
to $100,000 or imprisonment for up to one year and requires a
demonstration that the party knowingly violated the law.
The changes advanced by this legislation will also further the
economy of law enforcement resources. Under Class A misdemeanor
violations, a defendant has a right to a jury trial, which frequently
results in dismissed cases as prosecutors are deterred from proving a
``knowing and willful'' intent, and judges, who already have large
dockets, are less likely to take on lengthy and expensive jury cases.
In contrast, under a Class B misdemeanor offense, a citation can be
used as the charging instrument, and defendants can be tried directly
by a Magistrate Judge. The ability to apply a lower lever penalty, as
provided in H.R. 3247, for violations that are not committed in a
``knowing and willful'' manner will also simplify investigative and
enforcement tasks that officers must currently undertake compared to
that required when prosecuting Class A misdemeanor offenses.
In addition, we urge the Committee to review the intent language to
determine whether it is necessary to include a ``willful'' element in
addition to the ``knowing'' element. We would caution against such an
inclusion and understand that Department of Justice will be providing a
views letter that will specifically address this issue, as well as
other issues. We intend to work with the Forest Service and Department
of Justice to provide specific language addressing these concerns.
As noted above, we would also like to work with the Forest Service
and the Department of Justice to provide the Subcommittee with specific
changes to ensure that this new authority accomplishes the intended
result and does not conflict with or duplicate our existing
authorities.
For example, while the substance of the provisions in H.R. 3247
nearly mirror those provided to the Fish and Wildlife Service in the
1998 amendments to the National Wildlife Refuge System Administration
Act, Pub. Law No. 105-312, the Fish and Wildlife Service's current
language is structured so that Fish and Wildlife law enforcement
personnel can charge an offender under two alternative provisions, an
option that would not be available under H.R. 3247 as currently
drafted.
The Department also supports the changes made by Section 3 of H.R.
3247, which calls for the use of fines collected by the affected
agencies for the limited purposes of improvement, protection, or
rehabilitation work on public lands made necessary by the actions which
led to the fine, as well as to increase public awareness of regulations
and other requirements regarding use of the public lands. The
provisions are limited in nature and require that excess funds be
transferred to miscellaneous receipts and cannot be retained by the
agency.
Again, Mr. Chairman, I want to thank you and the Members of this
Subcommittee for your continued interest in our law enforcement issues.
We at the Department look forward to continuing positive dialog to
improve our federal law enforcement capabilities. This concludes my
statement and I am happy to answer any questions that you might have.
______
Mr. Renzi. Mr. Larry Smith?
STATEMENT OF LARRY E. SMITH, EXECUTIVE DIRECTOR,
AMERICANS FOR RESPONSIBLE RECREATIONAL ACCESS
Mr. Smith. Thank you, Mr. Chairman. I serve as Executive
Director of ARRA, Americans for Responsible Recreational
Access. ARRA was founded in June of 2000 because of a growing
concern that opportunities for recreational activities on
public lands and waterways were being eliminated by the closure
of many of these areas to the American people. ARRA is
comprised of a number of national, State, and regional trade
associations, as well as thousands of Americans who have
registered on the ARRA website.
First, I want to thank Mr. Tancredo for sponsoring this
legislation and for Mr. Udall of Colorado for cosponsoring it,
and thank you, Mr. Chairman, for holding the hearing. It has
been a pleasure to work with your respective personal staffs
and the Subcommittee staff in the development of this
legislation.
Every single day, more and more Americans are seeking
recreational opportunities on our public lands and waterways.
As our cities and suburbs become more congested, Americans are
increasingly turning to public lands as a means to relieve the
stress of everyday living. Maintaining access to these public
lands, therefore, becomes an important element for the health
and well-being of millions of Americans.
We are not here today to say to this Subcommittee that
there aren't problems with some individuals behaving
inappropriately when visiting public lands. Let me be clear
about this. Problems do exist. However, all too often, a simple
response to such problems on the part of some interest groups
is to advocate denying access to these public lands for all
Americans and not just to those few who choose not to be good
stewards of these lands.
Closing access to public lands does nothing to address the
real problem of inappropriate behavior. In fact, as more areas
are designated off-limits to all Americans, a greater
concentration of recreational activities and overuse will
likely occur in those areas still remaining accessible.
Therefore, until the problem of inappropriate behavior is
directly addressed, all public lands remain threatened.
Clearly, the present day response of closing public lands
is a flawed policy. All this policy does is penalize all
Americans for the misdeeds of a few. Fortunately, H.R. 3247
seeks a different solution. This legislation seeks to penalize
only those individuals or groups who choose to misuse our
public lands and not those who abide by land use regulations.
We believe this legislation strikes an appropriate balance
between those who might unknowingly violate land use
regulations and those who willfully and knowingly seek to do
harm.
The penalties and fines for Class B and Class A
misdemeanors are scaled appropriately for the behavior
associated with the purported violations. The greater the
damage to our public lands, then the stiffer the penalty should
be to those who cause such damage. H.R. 3247 allows for
consistent penalties among the four major agencies responsible
for the stewardship of our public lands.
As members of this Subcommittee know, it is often difficult
for a visitor to know when U.S. Forest Service land ends and
BLM land begins. Does the present day inconsistency of fines
and penalties among these agencies mean that the land holdings
of one agency are less or more important to the American
people? We think not. We are pleased that this legislation
seeks to remedy this inconsistency.
More often than not, land agencies lack adequate funds to
restore, repair, or maintain the public lands that are
extensively used by the general public. Under this legislation,
agencies will be able to use the fines collected for
restoration work as well as to educate the general public on
what is and is not appropriate behavior when visiting public
lands.
Since our inception, we have taken the position that all
recreation activities do not belong in all areas of public
lands. We believe that there are areas that truly should be
designated as wilderness areas, as well as other areas that
should be designated for certain types of recreational
activities. Having said that, we also firmly believe that the
Federal land agencies need to do a better job of providing a
broader range of recreational opportunities so more Americans
can enjoy their public lands.
As we have said, we find it distressing that certain public
interest groups approach public lands management issues by
advocating closure rather than addressing the issue of abuse or
misuse. When someone breaks our traffic laws, society's
response is not to ban all traffic on the highways. Rather, we
increase enforcement and we prosecute law breakers. The same
should hold true for activities on Federal lands and waterways.
Mr. Chairman, ARRA seeks to solve problems that inhibit
public enjoyment of our public lands and waterways. We believe
that public lands should be made available to all Americans
regardless of age or physical well-being for their enjoyment
and use in a responsible manner. With enhanced enforcement and
stiffer penalties for those who disobey the rules of proper
land use, our Federal land agencies should be able to pull down
the ``Do not enter'' signs and replace them with signs that
say, ``Welcome to your public lands.''
Again, thank you for inviting us to participate. We would
be happy to respond to any questions you or the other members
might have.
Mr. Renzi. Mr. Smith, thank you for your substantive
remarks, well researched. I am grateful.
[The prepared statement of Mr. Smith follows:]
Statement of Larry Smith, Executive Director,
Americans for Responsible Recreational Access, on H.R. 3247
Mr. Chairman:
My name is Larry Smith and I serve as the Executive Director of
ARRA, Americans for Responsible Recreational Access. ARRA was founded
in June of 2000 because of a growing concern that opportunities for
recreational activities on public lands and waterways were being
eliminated by the closure of many of these areas to the American
public.
ARRA is comprised of the following organizations: the American
Horse Council, the Motorcycle Industry Council, the Specialty Vehicle
Institute of America, the American Council of Snowmobile Associations,
the National Marine Manufacturers Association, the American
Motorcyclist Association, the Personal Watercraft Industry Association
and the National Off-Highway Vehicle Conservation Council. In addition,
there are a number of state and regional organizations affiliated with
ARRA.
First, I want to thank Mr. Tancredo for sponsoring this legislation
and to you, Mr. Chairman, for cosponsoring this measure and for holding
this important hearing. It has been a pleasure to work with your
respective personal staffs and with the Subcommittee staff in the
development of this legislation.
Every single day, more and more Americans are seeking recreational
opportunities on our public lands and waterways. As our cities and
suburbs become more congested, Americans are increasingly turning to
public lands and waterways as a means to relieve the stress of everyday
living. Maintaining access to these public lands, therefore, becomes an
important element for the health and well-being of millions of
Americans.
We are not here today to say to this Subcommittee that there aren't
problems when some individuals behave inappropriately when visiting
public lands. Let me be clear about this--problems do exist. However,
all too often, the simple response to such problems on the part of some
interest groups is to advocate denying access to these public lands for
all Americans and not just to those few who choose not to be good
stewards of these lands.
Closing access to public lands does nothing to address the real
problem of inappropriate behavior. In fact, as more areas are
designated ``off limits'' to all Americans, a greater concentration of
recreational activities and overuse will likely occur in those areas
still remaining accessible. Therefore, until the problem of
inappropriate behavior is directly addressed, all public lands remain
threatened.
Clearly the present day response of closing public lands is a
flawed policy. All this policy does is penalize all Americans for the
misdeeds of a few. Fortunately, H.R. 3247 seeks a different solution.
H.R. 3247 seeks to penalize only those individuals or groups who choose
to misuse our public lands and not those who abide by land use
regulations.
We believe that H.R. 3247 strikes an appropriate balance between
those who might unknowingly violate land use regulations and those who
``willfully and knowingly'' seek to do harm. The penalties and fines
for Class B and Class A misdemeanors are scaled appropriately for the
behavior associated with the purported violation. The greater the
damage to our public lands, then the stiffer the penalty should be to
those who cause such damage.
H.R. 3247 allows for consistent penalties among the four major
agencies responsible for the stewardship of our public lands: the U.S.
Forest Service, the Bureau of Land Management, the National Park
Service and the U.S. Fish and Wildlife Service. As members of this
Subcommittee know, it is often difficult for a visitor to know when
U.S. Forest Service land ends and BLM land begins. Does the present day
inconsistency of fines and penalties among these agencies mean that the
land holdings of one agency are less or more important to the American
people? We think not. We are pleased that this legislation seeks to
remedy this inconsistency.
More often than not, land agencies lack adequate funds to restore,
repair or maintain public lands that are extensively used by the
general public. Under this legislation, agencies will be able to use
fines collected for restoration work as well as to educate the general
public on what is and is not appropriate behavior when visiting public
lands.
Since ARRA's inception, we have taken the position that all
recreational activities do not belong in all areas of public lands. We
believe that there are areas that truly should be designated as
wilderness areas as well as other areas that should be designated for
certain types of recreational activities. Having said that, we also
firmly believe that Federal land agencies need to do a better job of
providing a broader range of recreational opportunities so more
Americans can enjoy their public lands.
As we have said, we find it distressing when certain public
interest groups approach public lands management issues by advocating
closure rather than addressing the issue of abuse or misuse. When
someone breaks our traffic laws, society's response is not to ban all
traffic on our highways. Rather, we increase enforcement and we
prosecute lawbreakers. The same should hold true for activities on
Federal lands and waterways. If penalties are insufficient to deter
violators, then ARRA believes strengthening our laws and penalties is
the proper course of action rather than embracing the closure of our
Federal properties.
Mr. Chairman, ARRA seeks to solve problems that inhibit public
enjoyment of our public lands and waterways. We believe that public
lands should be made available to all Americans regardless of age or
physical well-being for their enjoyment and use in a responsible
manner. With enhanced enforcement and stiffer penalties for those who
disobey the rules of proper land use, our Federal land agencies should
be able to pull down the ``Do Not Enter'' signs and replace them with
signs that say ``Welcome to Your Public Lands.''
Again, thank you for holding today's hearing and for inviting us to
participate. We hope that the Resources Committee will report this
measure to the House Floor for action by the entire House of
Representatives. Doing so will be of benefit to all Americans who enjoy
visiting our public lands.
Mr. Chairman, I would be happy to respond to any questions that you
or members of the Subcommittee might like to ask regarding ARRA's
support for this legislation.
______
Mr. Renzi. We will move now to Mr. Dave Jenkins of the
American Canoe Association.
STATEMENT OF DAVID JENKINS, DIRECTOR OF CONSERVATION AND PUBLIC
POLICY, AMERICAN CANOE ASSOCIATION
Mr. Jenkins. Thank you, Mr. Chairman, for allowing me this
opportunity to address the Committee regarding H.R. 3247. The
American Canoe Association is the nation's oldest and largest
organization representing people who enjoy canoeing and
kayaking. It has over 50,000 members nationwide, members who
regularly depend on the nation's public lands and waters for
recreation.
Today, our public lands and waters are in higher demand
than ever before. Much of this demand is related to the
increasing popularity of outdoor recreation. Participating in
kayaking, for example, up 182 percent over the past 7 years, is
growing faster than any other outdoor activity. The popularity
of other outdoor recreation activities, such as hiking,
backpacking, mountain biking, and climbing, is also up
significantly. As a result, people are flocking to these
protected resources seeking a wide variety of recreational
opportunities.
The task of managing these resources to provide the public
with quality recreational experiences, while at the same time
safeguarding them for future generations, is a very challenging
and increasingly difficult balancing act. It is a balancing act
that depends on resource managers being able to effectively
manage recreational use. Failure to adequately manage
recreational use not only results in the degradation of the
resource, it also leads to more user conflicts and reduces
visitor satisfaction.
One of the most difficult challenges facing managers and
all of us who care about these places is the effective
management of motorized recreation. Use of motorized vehicles,
off-road vehicles in particular, is causing serious damage to
our public land and waters. This damage includes erosion and
other visual impacts to the landscape, sediment pollution in
rivers and streams, damage to wetlands, and adverse impacts on
wildlife. Motorized use is also encroaching the most on the
recreational experiences of others by eliminating quiet and
secluded areas and by emitting visible air and water pollution.
Much of these motorized use impacts are the result of
people failing to recreate responsibly, often in direct
violation of the law. Whether I talk to managers from the
Forest Service, the Park Service, or BLM, they all express the
frustration and disillusionment at the enormity of this problem
and at the lack of adequate resources for enforcement. It is
common for the Forest Service and BLM to have one law
enforcement agent covering more than a million acres of land.
While I commend the sponsors of H.R. 3247 for trying to
improve the enforcement of regulations, I am concerned that
this legislation falls short of providing the full range of
enforcement tools that our resource managers so desperately
need. Addressing any inconsistencies in enforcement authority
between agencies is certainly welcome, but there are bigger
barriers to effective enforcement that also need addressing.
One common theme I hear from resource managers is that the
fines imposed are so low and the likelihood of getting caught
so remote that those who intentionally violate regulations
consider the fine as simply a potential user fee that they are
more than willing to pay. In order for any kind of law
enforcement to work, both the chances and consequences of
getting caught have to be high enough to alter behavior. H.R.
3247 is not going to get us there.
I hope that more comprehensive legislation will be
forthcoming. A significant increase in the number of agency law
enforcement personnel is desperately needed, as are increases
in the collateral schedule of fees for ORV violations.
Provisions contained in H.R. 751, sponsored by Representative
Udall, targeting fines and facilitating restitution by
offenders merits serious consideration.
Much of the problem of fines being too low to deter illegal
behavior results not from a lack of authority to impose
significant fines, but from an unwillingness by judges and
others to assess fines that are sufficient to deter. For this
reason, the establishment of mandatory minimum penalties and
condemnation authority should also be considered, especially
for specific types of violations that reflect intentional
disregard for the law and for those who are repeat offenders.
One common example of a violation that shows intentional
disregard for the law is the removal of signs that declare a
specific trail or area off-limits to motorized vehicles. By
removing such signs, willful violators are able to disguise
their own conduct as an innocent mistake.
For ACA members and other self-reliant, nature-oriented
outdoor enthusiasts, their enjoyment of public lands and waters
is very dependent on the quality of the natural environment and
its wildness. The desire to protect these resource qualities is
why our members invest the time and effort to practice ``leave
no trace'' ethics and to dedicate countless hours volunteering
for stewardship projects.
Please help us ensure that the irresponsible, destructive,
and illegal actions of some are not allowed to ruin the outdoor
recreation experience for the rest of us.
I have two newspaper articles that illustrate common
enforcement problems and an editorial from the Denver Post that
I ask be included in the record. I thank you and will be glad
to answer any questions.
Mr. Renzi. Without objection. Thank you for your testimony.
[The prepared statement of Mr. Jenkins follows:]
Statement of David Jenkins, Director of Conservation and Public Policy,
American Canoe Association, on H.R. 3247
Thank you for allowing me this opportunity to address the Committee
regarding H.R. 3247, the Trail Responsibility and Accountability for
the Improvement of Lands (TRAIL) Act. The American Canoe Association is
the nation's oldest and largest organization representing people who
enjoy canoeing, kayaking and rafting. It has over 50,000 members
nationwide, members who regularly depend on the nation's public lands
and waters for recreation. While these members belong to the American
Canoe Association because of their interest in canoeing and kayaking,
many of them also access our public lands to hike, backpack, ski,
climb, hunt and fish.
Today our public lands and waters are in higher demand than ever
before, and much of this demand is related to the increasing popularity
of outdoor recreation. Participation in kayaking for example, up 182%
over the past seven years, is growing faster than any other outdoor
activity--on land or water. The popularity of other outdoor recreation
activities such as hiking, backpacking, mountain biking, and climbing
is also up significantly. As a result, people are flocking to these
protected resources seeking a wide variety of recreational
opportunities.
The task of managing these resources to provide the public with
quality recreational experiences, while at the same time safeguarding
them for future generations, is a very challenging and increasingly
difficult balancing act. It is a balancing act that depends on resource
managers being able to effectively manage recreational use. Failure to
adequately manage recreational use not only results in the degradation
of the resource, it also leads to more user conflicts, and reduces
overall visitor satisfaction.
One of the most difficult challenges facing managers, and all of us
who care about these places, is the effective management of motorized
recreation. Use of motorized vehicles, off-road vehicles (OHV) in
particular, is causing very serious damage to our public lands and
waters. This damage includes erosion and other visual impacts on the
landscape, sediment pollution in rivers and streams, damage to
wetlands, and adverse impacts on wildlife. Motorized use is also
encroaching the most on the recreational experiences of others, by
eliminating quite and secluded areas and by emitting visible air and
water pollution.
Much of these motorized use impacts are the result of people
failing to recreate responsibly, often in direct violation of the law.
Whether I talk to resource managers from the USDA Forest Service, the
National Park Service or the Bureau of Land Management (BLM), they all
express frustration and disillusionment at the enormity of this
problem, and at the lack of adequate resources for enforcement. It is
common for the Forest Service and BLM to have one law enforcement agent
covering more than a million acres of land.
While I commend the sponsors of H.R. 3247 for trying to improve the
enforcement of regulations, I am concerned that this legislation falls
short of providing the full range of enforcement tools that our
resource managers so desperately need. Addressing any inconsistencies
in enforcement authority between agencies is certainly welcome, but
there are far bigger barriers to effective enforcement that also need
addressing.
One common theme I hear from resource managers is that the fines
imposed are so low, and the likelihood of getting caught so remote,
that those who intentionally violate regulations consider the fine as
simply a potential user fee that they are willing to pay. In order for
any kind of law enforcement to work, both the chances and consequences
of getting caught have to be high enough to alter behavior. H.R. 3247
alone is not going to get us there.
I hope that more comprehensive legislation will be forthcoming. A
significant increase in the number of agency law enforcement personnel
is desperately needed, as are increases in the collateral schedule of
fees (stiffer penalties) for OHV violations. Provisions contained in
H.R. 751, a bill sponsored by Representative Udall, which apply fines
directly to enforcement needs and facilitate restitution by offenders
merit serious consideration.
Much of the problem of fines being too low to deter illegal
behavior results, not from a lack of authority to impose significant
fines, but from an unwillingness by judges and others to impose fines
sufficient to deter illegal behavior. For this reason the establishment
of mandatory minimum penalties and condemnation authority should also
be considered, especially for specific types of violations that reflect
intentional disregard for the law, and for those who are repeat
offenders.
One common example of a violation that shows intentional disregard
for the law is the removal of signs that declare a specific trail or
area off-limits to motorized vehicles. By removing such signs, willful
violators are able to disguise their own conduct as an innocent
mistake. Another clearly willful violation is ``mud-bogging,'' the
increasingly prevalent practice of tearing up fragile meadows, wetlands
or streambeds with four-wheel drive vehicles--a practice that often
leaves ruts up to 6 feet deep.
The damage done to the resource by such actions and the costs to
the public cannot be tolerated. At least 60,000 miles of ``ghost
roads'' have already been carved out of national forests alone. An
Associated Press story from this past July noted ``A brief drive
through the Umatilla National Forest in northeastern Oregon turns up at
least a dozen large mud bogs visible from the dirt road. One year-old
site is scarred by tire ruts 19 inches deep that have yet to sprout new
grass.'' It also notes how a Forest Service law enforcement officer has
seen his patrol area more than double in recent years to more than 1.2
million acres.
For ACA members and other self-reliant, nature-oriented outdoor
enthusiasts, their enjoyment of public lands and waters is often
dependent on the quality of the natural environment and its wildness.
Having clean air and water, seeing wildlife, listening to the sounds of
nature and escaping the noise of everyday life are essential parts of
their recreational experience. The desire to protect these resource
qualities is why our members invest the time and effort to practice
Leave No Trace ethics and to dedicate countless hours volunteering for
stewardship projects.
Please help us ensure that the irresponsible, destructive and
illegal actions of some are not allowed to ruin the outdoor recreation
experience for the rest of us who recreate responsibly. I will be glad
to answer any questions.
______
[NOTE: The attachments submitted by Mr. Jenkins were
copyrighted and have been retained in the Committee's official
files.]
Mr. Renzi. We will move now to questions from the members,
5-minute questions beginning with the gentleman from Colorado
and author of the legislation, Mr. Tancredo.
Mr. Tancredo. Thank you, Mr. Chairman.
I have a question for Mr. Parkinson. If you could, please,
expand a little bit on what you mean by, or what is the
significance of separating out knowing and willful and just
using knowing. What are the implications of that? Why do you
support that?
Mr. Parkinson. Mr. Tancredo, the implications of that is
that if you require knowing and willful, it increases the
burden of proof for the prosecution, and let me walk through
that a little bit. Knowingly, if the element of the offense is
that it was a knowing violation, that simply requires proof of
the facts that constitute the offense.
Mr. Tancredo. I see.
Mr. Parkinson. What the government must show in that case
is that the defendant was aware of his acts, the defendant
performed those acts intentionally, and third, that the
defendant did not act by mistake or accident. Not a high burden
of proof for the prosecution.
Willfully raises the burden of proof and that requires, in
addition to what I mentioned, that would also require the
government to prove that the defendant specifically intended to
violate the law, and getting into someone's head, as a former
prosecutor, I can safely testify that when you add that added
mental element, state of mind element, it does increase the
burden of proof and makes it harder to penalize those who
commit the offense. So that is fundamentally the issue.
Mr. Tancredo. Thank you. You are shaking your head, Mr.
Rey. You agree with that observation?
Mr. Rey. Yes. We have the same observation, the same view.
Mr. Tancredo. Thank you very much.
Mr. Jenkins, in your testimony, there are certainly aspects
of it with which I can agree and, I guess in particular, your
desire to increase the number of people who are out there on
the line to try and identify those folks who are violating the
law. I certainly will support that and do support it.
I will also note that we had another bill here at a
different time. I brought a bill forward to increase the
penalties for those who knowingly and willfully violated the
campfire bans and did have a minimum penalty as a part of it
and the folks on the other side of the aisle here opposed it.
In this case, I am trying to look at what we would be
gaining by doing that. There are concerns that have been raised
by folks in the Service about the need for greater flexibility
here. I must admit that someone wanders off of a trail, even
knowingly wanders off a trail and commits some damage, I don't
know that I can put that in the same category as trying to burn
down the whole forest. But I appreciate your concerns and there
are certain aspects of it, as I say, that I fully intend to
support, given the opportunity, and that is an increased number
of personnel.
I have no other questions, Mr. Chairman.
Mr. Renzi. I thank the gentleman.
The gentleman from Colorado.
Mr. Mark Udall. Thank you, Mr. Chairman.
I would like to just start by thanking the panel for your
helpful testimony, and again, I want to thank Congressman
Tancredo for his work on the TRAIL bill and also would
associate myself with his remarks in regards to Mr. Jenkins,
your comments and the need to put more people on the ground to
enforce the existing laws that we have.
If I might, I would like to direct this question, my
initial question at Mr. Rey and Mr. Parkinson, and I want to
compare my bill, H.R. 751, with Mr. Tancredo's H.R. 3247, and
that has to do with how the money that is collected as fines
could be used. Both bills say the money could be used to
increase public awareness of agency rules. Both bills would
allow the agencies to use the money for damage repair or
improvement work.
But under H.R. 3247, that would be limited to work that was
made necessary by the violation that led to the fine, while
under my approach, the money could be used for any necessary
projects. Included in that, it would allow Agriculture or
Interior to use the money that was left for, quote,
``administrative, legal, and related expenses, including damage
assessments, payments of rewards for information, and
investigative costs.'' But under H.R. 3247, that wouldn't be
permitted, and so any leftover fines would be returned to the
general Treasury.
I wonder, wouldn't it be better to broaden this part of
H.R. 3247 so the agencies could direct this money into the
enforcement efforts and into some of the needs that we have
identified here? Mr. Rey and Mr. Parkinson, if you would be
willing to comment on that, I would appreciate it.
Mr. Parkinson. I will begin, Congressman Udall. I have not
had the opportunity to review H.R. 751 myself, but let me take
a crack at this.
I think the approach that you described in H.R. 751
certainly would give more flexibility and certainly more
discretion to the agencies that were using the fine money. My,
and this is tentative because I think we need to take a closer
look at this, but even allowing fine money to be used
specifically to repair damage caused by the specific offender
is something of a unique approach in our criminal law
enforcement and I think it requires some study.
Normally, fine money would go into the Witness and Crime
Victims Fund, so even departing slightly does raise some
concerns, typically within the Justice Department and the
administration because it is contrary to the typical way that
fines are levied and then collected. So I suspect that that is
one of the points that the folks were keeping in mind when they
drafted this legislation, that we were taking a step that was
unusual and it was a reasonable step and it also focused
specific expenditure of money on violations that were tied to
the offense.
Mr. Mark Udall. Yes, I understand that rationale. It seems
to me you could argue that at least one of the victims in this
is the land itself, and in that context, it makes sense to have
a fund, if you will, to repair the land.
Mr. Rey. This is an area--
Mr. Mark Udall. Mr. Rey?
Mr. Rey. This is an area where I think we want to visit
with the Justice Department and get back with you with some
suggested language that may have a little bit more flexibility.
One area where we would have some concerns, though, is a
proposal to utilize the money to hire more law enforcement
people. That raises the specter that the average user of the
Federal lands deals with our law enforcement agents in a
context where they suspect that our agents have an incentive to
be over-aggressive enforcers, because they are utilizing the
fines to retain additional agents to essentially bolster their
enforcement efforts.
We have some areas where we need to enhance our enforcement
presence, there is no question about that, but I think that is
better done through appropriated dollars and not with a direct
feedback loop to the fines.
Mr. Mark Udall. That is a very good point. There are, of
course, administrative costs that I would hope we could
consider being covered by the excess amount that might be left
from the fine structure.
I see my time is about to expire and I would want to ask
the Chairman if I could include some additional questions,
without objection, to the panel.
Mr. Renzi. Absolutely.
Mr. Mark Udall. And if I could, I would like to ask Mr.
Smith and Mr. Jenkins if they would respond to my initial
question, as succinctly as you can, seeing that the red light
is on.
Mr. Smith. In terms of your question, the other thing I
just might add, in addition to being able to use fines
collected to repair damage caused by individuals or groups, the
legislation also provides that the money can be used for
educational outreach in order to educate people in what is
appropriate and what isn't. We would certainly hope that any
final legislation would continue to have that ability because
we think that is very important.
Mr. Mark Udall. Yes. I think we would agree that education
is a key part of trying to reduce the number of infractions
and, therefore, the damage to public lands.
Mr. Jenkins. My concern is that we get those law
enforcement dollars, and if they can come through
appropriations, I think that is great. You have another
provision in your bill that would require some restitution by
the offenders, I believe, or at least allow for that, and I
think that may be another approach at getting to the
restoration of the resource because the damage is really severe
damage in a lot of cases and we really need a way to deal with
that, and like maybe the previous person that sits here would
say, not let the taxpayers be shouldered with that burden.
Mr. Mark Udall. Yes. I think that is a very good point. Mr.
Chairman, thank you for your indulgence.
Mr. Renzi. I thank the gentleman from Colorado and
cosponsor and move to the gentleman from New Mexico.
Mr. Tom Udall. Thank you, Chairman Renzi, and thank you,
members of the panel, for being with us today.
Let me, first of all, applaud my cousin, Mr. Udall from
Colorado and Mr. Tancredo, also from Colorado, for your piece
of legislation and say that I don't think there is any doubt
that fines for off-road vehicle violations are too low. I think
we need to address this issue. I applaud you for attempting to
get a trip on this problem.
In the spirit of you saying suggestions, Mr. Tancredo, in
terms of improvement of this legislation, I just have a couple
of comments, and I hope they are taken in the spirit of
possible improvements here.
First of all, on a procedural, two procedural issues,
apparently, the Department of Justice declined to send a
witness to be before this panel today, and I really believe,
since we are dealing with Department of Justice prosecutions,
we are dealing with the Federal courts, much of this is overlap
between this Committee and what the Department of Justice
typically does. So I am disappointed that they couldn't find
the time to send somebody. Apparently, there was an
availability issue. I would hope that maybe we could get their
input in this Committee on these specific provisions, and so
that would be one suggestion.
The second would be that the overlap in jurisdiction with
other committees here in the House, the Judiciary Committee
clearly has jurisdiction over these issues, also, because you
are dealing with Federal prosecutors, Federal courts. The
people that bring these cases, even if they are just citations,
are all under the supervision of the Judiciary Committee and
their oversight responsibilities. So I would urge you, if we
not going to even get Justice to talk in this Committee, to
urge the Judiciary Committee to assert some jurisdiction over
this so that their input, the Judiciary input can be had.
On the substantive part of this, two other comments, also,
and, I think, a question for the panel here. I worry a lot
about putting in the hands of an enforcement agency the
authority to keep the money. Whenever you do that, you raise a
whole host of issues. One of the big issues is, are you giving
the enforcement people the incentive to issue more tickets even
though they--more tickets or more prosecutions, trying to
collect more fines and more money, even though it isn't
necessary to carry out law enforcement responsibilities?
I think this would be an unusual way to run Federal law
enforcement. In fact, I think we have seen us move away from
this in the forfeiture area. I think Chairman Hyde, when he was
at Judiciary, sponsored a bill to take the forfeiture authority
so that when Federal prosecutors move in to forfeit, they don't
get to keep it because that would encourage them to use
forfeiture maybe in inappropriate circumstances. So I just
worry about the enforcing agency keeping the money because I
think it pushes them to do things that maybe they wouldn't
otherwise do.
And then the final--and let me ask the question to the
panel on that specific point. Is there anyone that sees a
problem with this as a revenue-raising measure, that you are
going to be putting a bind on this? I know agencies love to get
the money. I mean, I expect all of you to say, oh, no, we want
the money. This is a great idea. We are going to do a good job.
But I am asking you, is there anybody on this panel that thinks
that this is a bad idea? I don't need to hear that it is a good
idea, because I assume you are all for it. But is there anybody
that is on the other side on that issue?
Mr. Smith. Well, Mr. Udall, initially when we started
studying this problem, we did have some initial concerns about
this concept. But the more that we looked at it and
understanding that these agencies, these land agencies are
under some very tight fiscal constraints, we just feel it is
very important that money be devoted to educational outreach
for appropriate behavior, and if someone does damage to these
Federal lands, that those fines be used for restoration work.
So I think the need is greater than the potential concern.
I understand where you are coming from, but at the end of the
day, we just felt that this is the appropriate way to deal with
this problem.
Mr. Rey. I think it is important to separate the
enforcement from the use of the fine and that if the use of the
fine is for purposes that are resource-related as opposed to
additional enforcement activities, you eliminate the prospect
that people are going to view the Federal law enforcement
agencies as bounty hunters.
We do have some experience with the Migratory Bird Treaty
Act and the Lacey Act and the use of the fines there, and so
far, that hasn't been a problem. But I think the reason it
hasn't been a problem is that both of those statutes, as does
this proposal, separates the enforcement from the fine.
Mr. Tom Udall. Go ahead.
Mr. Jenkins. We deal with this issue every day as
individuals when we face traffic violations and things like
that. It is always a concern about what is motivating the
enforcement. It seems to me that the more directly you tie the
use of those dollars to actual damage done, the less there is
an incentive, or broader incentive, for law enforcement to be
too picky on the type of penalties and type of tickets they are
issuing.
Mr. Tom Udall. Thank you very much.
Mr. Renzi. I thank the gentleman.
Mr. Tom Udall. I have additional questions, but I know I
have exhausted on this particular round. Thank you, Mr.
Chairman.
Mr. Renzi. You are welcome. I am going to yield my time to
the gentleman from Colorado, Mr. Tancredo.
Mr. Tancredo. Thank you, Mr. Chairman. I guess just a
couple of very quick comments in response to my colleague from
New Mexico.
To a certain extent, the purpose of this legislation is to
encourage the agencies to actually be more aggressive. So I
don't mind the thought, the idea that there may be some
connection between the imposition of a fine and a more
aggressive posture.
I think sometimes some of the agencies have actually--some
people out in the field have simply ignored what was happening
because they did not feel that there was really anything that
was going to happen as a result of them even issuing a fine or
a citation or something like that, and I think a lot of it has
just been because it is confusing, because sometimes they
didn't want to do it, because the restrictions of either their
agency just having a Class A or Class B provision that, again,
restricted their ability to be flexible, they decided not to do
anything.
So I am going to give them greater flexibility. I want
them, therefore, to be more aggressive in actually enforcing
the laws that are on the books. And as long as we confine the
use of the money, as we have here, and has been stated by the
panel, as long as we confine the use of the money for these
specific things, I don't feel as though they are going to be
doing it in order to improve their own economic welfare, but
just to actually enforce the laws as they are on the books and
maybe reduce the amount of violators as a result of it.
Especially, I like the educational part. Education to me
means, among other things, some big signage that tells you what
the heck is going to happen to you if you do this stuff. You
know, that is one thing I want people to know. That is part of
this, as a deterrent, naturally, is to tell people, here are
the possible fines and the possible ramifications for your
actions here, which they may not know today. So I am hoping
that that comes as a result of it.
Procedurally, I am certainly supportive of trying to get
Justice to provide a little more participation in this process
as we go through it here. Whether we need another referral or
not, or referral to another committee, I guess I say that for a
long time, I have listened to people on this panel and people
in the Congress talk about the need to do something quickly to
address the problems that are so endemic in our national parks
and in the forests of this land. I don't know whether--if we
can get that kind of cooperation from Justice right now through
this process here in this Committee, I am all for it. Beyond
that, I think we have got a lot of input with them. I know the
agencies have talked to them themselves.
At any rate, I appreciate very much the panel being here
and, Mr. Chairman, your willingness to provide some time in
response.
Mr. Renzi. Thank you. Reclaiming my time, I am going to
turn the Committee over now to Mr. Tancredo to finish up and to
chair the hearing. I know Mr. Inslee has questions. I think Mr.
Udall has a couple more questions. So Mr. Tancredo, thank you.
Mr. Tancredo. [Presiding.] Thank you, Mr. Chairman. The
other comment that I just wanted to make is that it is clear to
me that when you deal with these kinds of violations that occur
on Federal lands, the vast majority of agency violations are
handled through citations and they are handled--we should be
really clear about what is going on. This citation is
comparable to a ticket. The penalty on the citation is not a
fine but a collateral paid by the recipient to authorize
termination of the proceedings. This is under the Federal Rules
of Criminal Procedure. So this is the way most of the cases
occur.
What I am concerned about is when you start giving more
authority, is that authority going to be used well? My
understanding within the Bureau of Land Management, which only
has these Class A misdemeanors, is that what you have is a very
aggressive approach by the agency, saying, oh, we are going to
throw the book at these guys, and they are charging everybody
with Class A misdemeanors and so they move forward along the
process and they present their case. They don't actually do the
charging, of course, but they want the people to be charged.
They go up to the Justice Department and the local U.S.
Attorney and say, we have got these guys. We want you to charge
them with a Class A misdemeanor. And what ends up happening is
the Justice Department declines the cases because the cases
haven't been put together to prove all the elements of the
crime and the enhanced intent provisions.
And so we have had a record over in BLM, my understanding
is, that it hasn't really worked very well with Class A. And so
it is fine for all of us to talk about, you know, throw the
book at the ORV guys and that is where we want to go, but the
reality is that--and I used to do these cases when I was an
Assistant United States Attorney and we would have 1 day a
month and there would be all these misdemeanor cases before a
magistrate and we didn't have very much time to deal with them
because we were dealing with all these other felonies. And
frequently, the law enforcement folks had very good intentions
but they were not able to put the cases together, and so you
had a lot of declinations at the last moment, which is not good
for law enforcement, either.
So what I think we need to think about in doing this is
make sure that all levels of the law enforcement people in the
Federal agencies have the kind of training, they work closely
with the Department of Justice to make the cases that are
really going to stick, because the agencies frequently view
that they are being tough by wanting to charge something when
they could get a lot better result with a lesser penalty, but
they could actually get a conviction or, as I said earlier, the
overwhelming majority are where people pay the collateral on
these citations.
So I don't know whether, Mr. Parkinson, you have been a
former Federal prosecutor. I mean, this is a concern of mine.
You work in supervising some of this law enforcement area. Is
this a concern of yours? I mean, my understanding is we have
got a lot of problems here in terms of the way these
prosecutions proceed, and if we are going to give all this
additional authority across the Federal Government, I think we
are going to have to have a level of training to make sure that
it is used wisely and that it is used effectively and that it
is done in a cost efficient way.
Mr. Parkinson. Congressman, you have made some very good
points, sort of took me back to my former days as a prosecutor.
I had the same experiences that you had. But what I think that
does is it really highlights the need for this legislation.
One of the reasons that, particularly with BLM, having only
Class A authority means that they were compelled to either do
nothing or go to the Class A misdemeanor route. By allowing
them the lesser charge under a Class B misdemeanor does permit
that sort of more reasonable approach to law enforcement.
And, of course, as you said, training is a big component of
that. I think some of the statements or some of the stuff that
comes out from the field is lore, but I think it also has--
there is a lot of reality to what you have been hearing. I
don't necessarily conclude that it is a failure of training as
opposed to a lack of an appropriate penalty structure, which
this legislation is designed specifically to address.
Mr. Tom Udall. Mr. Parkinson, if we have, in fact, had some
problems with BLM in their Class A, which you seem to admit
there have been some, then giving them Class B, I would agree
with you, is a good idea, and that is why I applauded earlier
the objective that Mr. Tancredo is moving toward.
But the Forest Service and the Park Service have not had
Class A, so we are moving them into this whole new murky
category where we have had problems at BLM. I would like some
assurance that there is an understanding from the people that
are supervising this, Mr. Rey for one, that it is going to be
done in a way that it is successful and that the cases are
presented in a way where there isn't this disconnect between
Justice and the prosecutors and the people in the field and
cases being dismissed and us not really getting enforcement
done on these very important public lands and resource cases.
I guess my question in a way is to Mr. Rey. You are
stepping into an area with Class A with the Forest Service,
anyway, which they have never done, and I think you may have
problems unless there is some level of training and
understanding that it isn't just the attitude of an agency
saying, we are going to throw the book at them, and then
Justice falls in line. It just doesn't work that way. Do you
have any comment?
Mr. Rey. Well, I think that is an area that we are going to
be extremely mindful of. There is no benefit to be gained by
bringing a case that can't be prosecuted, as you indicated
earlier. The one advantage we have at this moment in history,
should this legislation pass, is that our new Director of Law
Enforcement, Ron Sprinkle, comes to us from the Department of
the Interior, from the Park Service, and the Secret Service
before that. So we are going to enter into this, should you
give us this authority, with the benefit of their experience in
how to use Class A misdemeanor enforcement wisely.
Mr. Tom Udall. That is a welcome addition. Let me once
again thank the panel for being here. I am finished with my
questions at this point, and I thank Mr. Tancredo for his push
to get tough on these ORVs. I don't think there is any doubt we
need to do this. I just have questions as to exactly how we get
there. Thank you very much.
Mr. Tancredo. I understand and I appreciate the gentleman's
concerns.
Mr. Inslee, do you have questions?
Mr. Inslee. Yes. I appreciate this effort, too, having seen
the damage that has been caused out there. It is pretty amazing
in my neck of the woods.
But I have a question about this idea. If you accept the
concept that we need to increase the sanction or perceived
sanction for offenders in this manner, and if you accept the
fact that the Federal judicial system is clogged to the gills
and Federal prosecutors probably are going to put this on the
lower level of their priority system if we go to more
misdemeanor prosecutions, should we be focusing as much, or
more, on raising the collateral forfeiture numbers, and
hopefully we keep people out of the judicial system but still
whack them harder and send a message to the user community in
that regard?
Is that an equal or better sort of strategy here, because I
have a concern that if we do this, we are going to get
referrals that just aren't going to go anywhere, particularly
since now we have this willful standard, too, that I think is
worthy of some discussion. That is just an open question.
Mr. Parkinson. Let me start. I think this legislation is a
good solution. I think we start from--one of the introductory
comments put it this way. I will boil it down, too. There are
two classes of offenders generally. This may be a slight
oversimplification, but I think it is useful. There are those
who are committing violations without really intending to
commit violations, and then there are the egregious offenders
who know exactly what they are doing and they are out there,
often repeatedly, normally repeatedly, violating the public
lands.
It strikes me that when you start with that conceptual
framework, there ought to be two law enforcement kinds of
responses available. You ought to be able to have a Class B
misdemeanor ability for those who are really not egregious
offenders, but for those who are egregious offenders, you
really ought to have a Class A kind of misdemeanor authority,
which--and the other thing is that you ought to have a
structure within these four bureaus, the three Interior bureaus
and the Forest Service, that is at least consistent. Right now,
we have four different statutory frameworks for the four
bureaus, and the confusion for prosecutors and law enforcement
agents who might be cross-designated, as well as for the
courts, I think conceptually just doesn't make any sense
whatsoever. So--
Mr. Inslee. Could you address the issue of fines? Do we
need to somehow induce agencies to look at their fine
structure? If so, how do we go about that?
Mr. Parkinson. Well, I think this helps do that. I think,
yes, a short answer is do we need to have agencies look at
their fine structures, I think the answer to that is yes. We
should always be taking a look at things like that and
analyzing how we better enforce the statutes and regulations
that are on the books, and I think this is the kind of
legislation that is a vehicle for generating that kind of
analysis and discussion.
Mr. Inslee. Mr. Rey, how do we encourage you or get you to
look at the fine structure?
Mr. Rey. We continue to review our fine structures, but I
think what Mr. Parkinson said is right in terms of the
conceptual framework that you approach this issue with. I don't
know that we are going to accomplish any additional enforcement
by raising the collateral for an unwitting violator. Whether we
get him for $25 or $200, he is still an unwitting violator. It
is the people who are repeated knowing violators that this bill
will give us the better opportunity to deal with by giving the
Forest Service, for the first time, a Class A authority.
Mr. Smith. Mr. Inslee, we represent user groups. Quite
often, there are a lot of bad things happening out there and a
lot of destruction is occurring and we really want the agencies
to have the means to go after those people that are
deliberately destroying our public lands. And so that is why we
like the fact that there is a two-tiered approach here with a
misdemeanor A and B. Somehow, we have got to get on top of this
problem, and we think this is one way to begin addressing some
of that destruction that is occurring.
Mr. Inslee. I noted in the definition, it added the
characteristic of willful to the prosecutorial standard. Is
that necessary or is that really what we are after? I noted a
memo here that--it's been so long since I have been in law
school--that said willful means you actually had knowledge that
this would be illegal. Is that really the meaning of willful
nowadays?
Mr. Parkinson. Let me take the first crack. I don't believe
you were here when I made the comments in my opening. I do
think, one, it is not necessary, and two, we ought to amend the
legislation to eliminate the willful requirement.
Basically, what that does is it increases the burden of
proof for the prosecutor. It requires the government to prove
that the defendant specifically intended to violate the law,
and I don't think that is necessary and I think it will impede
the enforcement ability of the agencies.
Mr. Inslee. Thank you. Thank you, Chairman.
Mr. Tancredo. Thank you, Mr. Inslee, and thank you very
much to the panel. I want to thank the witnesses on our second
panel for their insights and members for their questions.
The members may have some additional questions for the
witnesses. We ask that you please respond to these in writing.
The hearing record will be held open for 10 days for these
responses.
If there is no further business before the Subcommittee, I
again thank the members of the Subcommittee and our witnesses.
The Committee stands adjourned. Thank you very much.
[Whereupon, at 12:20 p.m., the Subcommittee was adjourned.]
[A letter submitted for the record by the U.S. Department
of Justice on H.R. 3247 follows:]
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[GRAPHIC] [TIFF OMITTED] T9967.002