    [Senate Hearing 108-191]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 108-191

      HEARING TO REVIEW H.R. 1904, THE HEALTHY FORESTS RESTORATION ACT OF
                                      2003

    =======================================================================

                                    HEARING

                                   before the

                           COMMITTEE ON AGRICULTURE,
                            NUTRITION, AND FORESTRY

                              UNITED STATES SENATE

                          ONE HUNDRED EIGHTH CONGRESS

                                 FIRST SESSION

                                   __________

                                 JUNE 26, 2003

                                   __________

                           Printed for the use of the
               Committee on Agriculture, Nutrition, and Forestry

      Available via the World Wide Web: http://www.agriculture.senate.gov

                                     ______

    83-959              U.S. GOVERNMENT PRINTING OFFICE
                                WASHINGTON : 2003

    ____________________________________________________________________________
    For Sale by the Superintendent of Documents, U.S. Government Printing Office
    Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512�091800
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               COMMITTEE ON AGRICULTURE, NUTRITION, AND FORESTRY

                      THAD COCHRAN, Mississippi, Chairman

    RICHARD G. LUGAR, Indiana            TOM HARKIN, Iowa
    MITCH McCONNELL, Kentucky            PATRICK J. LEAHY, Vermont
    PAT ROBERTS, Kansas                  KENT CONRAD, North Dakota
    PETER G. FITZGERALD, Illinois        THOMAS A. DASCHLE, South Dakota
    SAXBY CHAMBLISS, Georgia             MAX BAUCUS, Montana
    NORM COLEMAN, Minnesota              BLANCHE L. LINCOLN, Arkansas
    MICHEAL D. CRAPO, Idaho              ZELL MILLER, Georgia
    JAMES M. TALENT, Missouri            DEBBIE A. STABENOW, Michigan
    ELIZABETH DOLE, North Carolina       E. BENJAMIN NELSON, Nebraska
    CHARLES E. GRASSLEY, Iowa            MARK DAYTON, Minnesota

                     Hunt Shipman, Majority Staff Director

                    David L. Johnson, Majority Chief Counsel

                   Lance Kotschwar, Majority General Counsel

                          Robert E. Sturm, Chief Clerk

                    Mark Halverson, Minority Staff Director

                                      (ii)

                                C O N T E N T S

                                  ----------
                                                                       Page

    Hearing(s):

    Hearing to Review H.R. 1904, the Healthy Forests Restoration Act
      of 2003........................................................    01

                                  ----------

                            Thursday, June 26, 2003
                        STATEMENTS PRESENTED BY SENATORS

    Cochran, Hon. Thad, a U.S. Senator from Mississippi, Chairman,
      Committee on Agriculture, Nutrition, and Forestry..............    01
    Craig, Hon. Larry, a U.S. Senator from Idaho.....................    06
    Crapo, Hon. Mike, a U.S. Senator from Idaho......................    01
    Kyl, Hon. Jon, a U.S. Senator from Arizona.......................    42
    Lincoln, Hon. Blanche, a U.S. Senator from Arkansas..............    17
    McCain, Hon. John, a U.S. Senator from Arizona...................    04
    Miller, Hon. Zell, a U.S. Senator from Georgia...................    34
                                  ----------

                                   WITNESSES

    Carroll, Mike, Division of Forestry, Minnesota Department of
      Natural
      Resources, St. Paul, Minnesota.................................    23
    Christensen, Norman L., Jr., Ph.D., Nicholas School of the
      Environmental and Earth Sciences, Duke University, Durham,
      North Carolina.................................................    45
    Kochan, Donald J., Visiting Assistant Professor of Law, George
      Mason
      University School of Law, Arlington, Virginia..................    48
    McAvoy, Jackie, Council Member for Post Falls City, Post Falls,
      Idaho..........................................................    28
    Nelson, Tom, Director, Timberlands, Sierra Pacific Industries,
      Redding,
      California.....................................................    26
    Parenteau, Patrick, Director, Environmental Law Clinic, Vermont
      Law School, South Royalton, Vermont............................    50
    Petersen, Michael, The Lands Council, Spokane, Washington........    31
    Rey, Mark, Under Secretary for Natural Resources and the
      Environmental, United States Department of Agriculture,
      Washington, DC.................................................    10
    Salwasser, Hal, Ph.D., Dean, College of Forestry, Director,
      Oregon Forest Research Laboratory, Oregon State University,
      Corvallis, Oregon..............................................    46
    Scarlett, Lynn, Assistant Secretary for Policy, Management, and
      Budget, United States Department of Interior, Washington, DC...    09
    Stephen, Frederick M., Ph.D., Interim Department Head, Department
      of
      Entomology, University of Arkansas, Fayetteville, Arkansas.....    25
                                  ----------

                                    APPENDIX

    Prepared Statements:
        Cochran, Hon. Thad...........................................    70
        Harkin, Hon. Tom.............................................    74
        Carroll, Michael.............................................    99
        Coleman, Hon. Norm...........................................    81
        Craig, Hon. Larry............................................    83
        Crapo, Hon. Mike.............................................    76
        Christensen, Norman L., Jr...................................   140
        Kochan, Donald J.............................................   156
        Kyl, Hon. Jon................................................    87
        McAvoy, Jackie...............................................   127
        McCain, Hon. John............................................    79
        Nelson, Tom..................................................   119
        Parenteau, Patrick...........................................   162
        Petersen, Michael............................................   134
        Rey, Mark....................................................    95
        Salwasser, Hal...............................................   149
        Stephen, Frederick...........................................   112
        Talent, Hon. James...........................................    90
        Walden, Hon. Greg............................................    92
    Document(s) Submitted for the Record:
        Baucus, Hon. Max.............................................   172
        Chambliss, Hon. Saxby........................................   184
        Christensen, Norman L., Jr. (Letter to President George W.
          Bush)......................................................   195
        DeFazio, Hon. Peter..........................................   191
        Fiscal Year 2004 Interior and Related Agencies Budget........   258
        Leahy, Hon. Patrick..........................................   185
        Society of American Foresters (Letter to Senator Robert
          Bennett)...................................................   255
        Talent, Hon. James...........................................   194
        Views on the H.R. 1904 by several persons and organizations.200-254
    Questions and Answers:
        Harkin, Hon. Tom.............................................   264
        Leahy, Hon. Patrick (answers not provided for Mr. Donald
          Kochan)....................................................   285
        McConnell, Hon. Mitch........................................   293

                          HEARING TO REVIEW H.R. 1904,
                              THE HEALTHY FORESTS
                            RESTORATION ACT OF 2003

                                  ----------

                            THURSDAY, JUNE 26, 2003

                                           U.S. Senate,
              Committee on Agriculture, Nutrition and Forestry,
                                                        Washington, DC.
        The committee met, pursuant to notice, at 9:03 a.m., in
    room SR-328A, Russell Senate Office Building, Hon. Thad
    Cochran, [Chairman of the Committee], presiding.
        Present or submitting a statement: Senators Cochran,
    Coleman, Crapo, Talent, Lincoln, and Miller.
        Also present or submitting a statement: Senator Craig and
    Representative Walden.

          STATEMENT OF HON. THAD COCHRAN, A U.S. SENATOR FROM
    MISSISSIPPI, CHAIRMAN, COMMITTEE ON AGRICULTURE, NUTRITION, AND
                                FORESTRY

        The Chairman. The committee is having a hearing to review
    the Healthy Forests Restoration Act of 2003, H.R. 1904, which
    has been passed by the other body.
        We appreciate very much the attendance of witnesses and
    their assistants to help us better understand the implications
    of this legislation and any suggestions that the committee
    should consider as we proceed to respond to the challenge of
    writing a bill.
        The President, as you know, has proposed a Healthy Forest
    Initiative, which is the basis for this legislation, and we are
    grateful for the support of the administration and the
    attendance of administration witnesses today, as well.
        I have asked the distinguished Senator from Idaho, Mike
    Crapo, to chair the hearing. He is chairman of our Forestry
    Subcommittee. At this time, I am going to ask that my statement
    be printed in the record, as if read, and I will turn the gavel
    over to Senator Crapo.
        Mike.
        [The prepared statement of Chairman Cochran can be found in
    the appendix on page 70.]

        STATEMENT OF HON. MIKE CRAPO, A U.S. SENATOR FROM IDAHO

        Senator Crapo [presiding]. Well, thank you very much,
    Chairman Cochran. I truly do appreciate you working so closely
    with us and allowing the subcommittee to be as engaged and as
    involved on this issue as you have. I would note that we have a
    number of our distinguished colleagues here from other
    committees who are very interested in this issue as well.
        I believe that we are scheduled to have a vote or a series
    of votes at 9:15. What I am going to try to do is I will make
    my statement, we will try to get through the statements of the
    Senators who are here, and then I expect we will be
    interrupted, but we will keep everybody posted as the day
    proceeds.
        H.R. 1904, the Healthy Forest Restoration Act, is a
    bipartisan bill that passed the House of Representatives with
    overwhelming support. The wildfire seasons of 2000 and 2002
    were the largest and most destructive in 50 years. These fires
    destroyed property, degraded air and water quality and damaged
    fish and wildlife habitat. They cost billions of dollars to
    fight and, even worse, cost the lives of firefighters. The
    damage to the environment was severe, and the cost to
    communities was untold.
        If any good can come out of the fires, it is that Congress
    now recognizes that the status quo will not suffice and that we
    will have to address the growing crisis. Yet, this bill is more
    than about forest fires. It is about the very health of our
    forest lands. Fire risk is an indicator of a stressed
    ecosystem, as are insect infestation, disease outbreaks, and
    the encroachment of invasive species. They are all indications
    of an ecosystem that must be restored.
        I would like to raise an example that strikes close to home
    for us in Idaho. Elk City, Idaho, is ``ground zero,'' in my
    opinion, with regard to the healthy forest bill. Unmanaged
    forests have resulted in a tremendous insect problem that has
    resulted in a potential wildfire problem. A couple of weeks ago
    I toured the Red River area and saw firsthand this threat.
    Eighty percent of the trees surrounding the community there are
    infested by mountain pine beetles, and millions of trees have
    died. With even-aged stands and rampant bug kill, the Red River
    drainage is posed for a catastrophic fire. With only one road
    into Elk City, the people there are understandably concerned.
        The drainage is also significant for its important fish and
    wildlife habitat, including the habitat for threatened and
    endangered species. The ecosystem is being degraded because the
    lands are not being managed and the forest is dying. If there
    is a fire, it will not only kill species, but devastate their
    habitat even further. Areas where every human action has been
    governed by the Endangered Species Act and Clean Water Act will
    be wiped out by a fire that cannot be held accountable to those
    laws.
        What is so frustrating to the community is that while
    millions of trees are rotting in the forests, while wildlife
    habitat is being degraded because of lack of management and
    their very safety is threatened, the economy of the city and
    the community is also being devastated.
        I brought with me something from the forest on my visit
    that day. These are a couple of pieces of bark from a very
    large, dead, bug-infested tree. Mr. Chairman, I do not know how
    well the cameras can pick this up, but on the outside of the
    bark, you can, on different locations, see small bore holes
    where the beetles have bored through the bark. On the inside of
    the bark, you can see what look like stripes going up the tree.
    This is where the beetle, when it gets in, it burrows up the
    tree. As it goes up the tree, it lays its eggs, and when the
    eggs hatch, the larva then go sideways and literally girdle the
    tree. You can see the multiple paths that have been essentially
    eaten out of this tree as the insects went through the tree and
    killed it.
        If you take a picture of the forest, in fact, there's
    actually a dead beetle right here in this piece of bark. I will
    pass these around. I encourage people not to knock the beetle
    off because I want to show these again.
        The point I make is these are serious problems, and I
    disagree that the protection of economies and the environment
    are mutually exclusive. Please get these around the table and
    let others see them.
        Allowing the Forest Service to move forward with
    appropriate silvicultural techniques would address the threat
    and help to protect this rural economy. Unfortunately, this is
    not an isolated example in Idaho or in our Nation. Last year,
    Senator Lincoln held a hearing on the red oak borer epidemic
    facing much of the Southwest, and I was struck at the
    similarities with the beetle problems we face in the Pacific
    Northwest. That hearing reinforced what many already knew, that
    forest health is not just a Western issue.
        The bill that came out of the House reflects that fact. It
    addresses conditions across the country that threaten forested
    lands. While modest, compared to the 190 million acres of land
    managed by the Forest Service and Bureau of Land Management
    that are at unnatural risk to catastrophic wildfire----
        Did they get it down there?
        Senator McCain. I have seen those in my place.
        Senator Crapo. I suspect as much.
        One criticism of the bill is that it addresses only a small
    fraction of our at-risk public lands. I was starting to say
    that while there is 190 million acres of at-risk acres, this
    bill literally deals with 20 million of those acres to try to
    get us down the road.
        Despite its narrow focus, I strongly support this
    legislation. We need to move forward. I agree with Dale
    Bosworth, the chief of the Forest Service, when he says we need
    to move the focus from what we take to what we leave. As the
    chief has identified, too many are looking at this as a zero-
    sum game. They seek someone to blame for forest health problems
    or argue that logging is inherently bad. We need to get beyond
    that zero sum argument and realize that what is important is
    restoring healthy ecosystems, an ecosystem that allows for a
    natural fire regime to exist without threatening our
    watersheds, wildlife or communities.
        Advocates for this bill, myself included, do not purport
    that it will fire-, insect- or disease-proof our forests. That
    is not the goal. Its purpose is to provide the Forest Service
    with the tools they need to do the work on the ground to
    restore healthy forests and reduce the threat of catastrophic
    wildlife to our communities and our forest ecosystems.
        The bill includes key points that are necessary to
    effectively meet its goals. It addresses the ``analysis
    paralysis'' that is one of the greatest obstacles to getting
    real forest management done on the ground. It recognizes that
    the problem goes beyond fire, that there are other threats to
    our Nation's forestlands. It recognizes that these problems
    affect both public and private lands throughout the country and
    that collaboration is vital.
        The bill codifies the public input and participation
    processes outlined by the bipartisan Western Governors' Ten-
    Year Strategy. Robust public participation is key to the
    success in any effort of this kind. I hope that we can build a
    bipartisan support for this bill in the Senate and move it
    forward quickly.
        As Oregon Governor Ted Kulongoski said last week at the
    Western Governors' Association Forest Health Summit, ``There
    are no Republican forests or Democrat forests. There are only
    American forests that need our protection, stewardship and
    collective thinking.'' I appreciate the witnesses today for
    taking their time to be here with us, and I know the committee
    will find the information you present as helpful as I do as we
    move forward to consider this legislation.
        I thank you very much for your attention.
        [The prepared statement of Senator Crapo can be found in
    the appendix on page 76.]
        Senator Crapo. Next, I believe, Senator McCain is on the
    list.

       STATEMENT OF HON. JOHN McCAIN, A U.S. SENATOR FROM ARIZONA

        Senator McCain. I thank you, Mr. Chairman.
        Given the fact that, as you mentioned, there is a vote
    coming up and Senator Craig also is here, I would like to ask
    that my statement be submitted for the record, and I will make
    a very brief oral statement.
        Senator Crapo. Without objection.
        Senator McCain. Thank you.
        Mr. Chairman, your remarks lay out the crisis that we are
    in. You showed the bark beetle there. In some places like the
    Prescott National Forest, half of the trees there are dying of
    this blight which is, as you mentioned, caused by a drought,
    which then does not have moisture to the trees. Therefore, they
    cannot fight the bark beetle. Therefore, they die. Therefore,
    it spreads. It is a veritable epidemic in the West.
        When a fire does start, and we are still in a drought in
    the Southwest, as the chairman well knows, we are experiencing
    in Arizona the Aspen fire. It has consumed 25,000 acres, 345
    homes, and other buildings. It has engaged 1,200 firefighters
    and is only 25-percent contained. There are fires all over the
    Southwest, and we are now still in the month of June.
        The prospects are that this could be the worst summer in
    history. I would remind, for the record, the chairman well
    knows, last year the wildfires claimed the lives of 23
    firefighters, burned 7.2 million acres, and cost $1.6 billion
    to fight. That toll will probably go higher this year.
        I believe that the legislation before the committee is
    good. It is appropriate. It addresses the issues. I hope that
    the committee can act as quickly as possible. Chairman Cochran
    mentioned his commitment and concern, and I appreciate that.
    Could I just point out the priorities?
        First, protection of human life and property are an urgent
    priority, that the Environmental Review and Appeals process may
    be modified or waived to expedite these essential actions. We
    are held up by lawsuits. There is no doubt about that. Some of
    those lawsuits are legitimate. Some of those lawsuits should be
    brought. There are others that have, whether it is intended or
    not, the effect of delaying or eventually canceling very badly
    needed projects, as far as forest thinning is concerned;
        There should be a collaborative process to allow those
    affected at the local level to determine project priorities and
    management outcomes;
        Third, the current state of our public forests is the
    result of 90 years of fire suppression and changing land use,
    and it will take time and care to bring the appropriate
    scientific management and financial resources to bear to
    produce healthy forests on a large scale;
        The Federal Government must make the significant financial
    commitment necessary to accomplish these objectives. It is our
    responsibility to acknowledge the actual cost of it. These are
    national forests, where most of these catastrophes are taking
    place.
        Mr. Chairman, finally, it is hard for me, this weekend,
    when I go back to down south of Tucson, where 345 homes have
    been destroyed, to say, ``Yeah, we are going to do something,''
    and somebody is going to stand up and say, ``Well, Senator
    McCain, after the Rodeo-Chediski forest fires last year, you
    told us that Congress was going to do something and that the
    Federal Government would come to your assistance.''
        Now, we have come to their assistance post-fire. We have
    done a lot. FEMA has been very helpful. There has been a lot of
    other Government agencies. I cannot look those citizens in the
    eye, Mr. Chairman, and say we have taken sufficient measures to
    prevent future occurrences of this nature, and that is why I
    hope that this committee will act with expedition so that we
    can get this to the floor and get it hammered out and to the
    President's desk.
        I thank you, and I thank you Mr. Crapo, but I also thank
    Chairman Cochran for his commitment as well.
        I thank the committee.
        [The prepared statement of Senator McCain can be found in
    the appendix on page 79.]
        Senator Crapo. Thank you very much, Senator McCain. We
    appreciate your insight, and we recognize that Arizona has been
    the first hit this year. We will work our hardest to make sure
    that we do get something done this year.
        Next, we want to turn to my colleague from Idaho, Senator
    Larry Craig, who has been integrally involved in this issue for
    years and has been instrumental in bringing this legislation to
    its current position and working to solve these kinds of
    issues, and literally could have chaired hearings on this
    himself, depending on how the jurisdiction of the bill came
    through.
        Senator Craig, first, let me just commend you for your
    commitment and service to this issue, and I turn the time over
    to you now.

        STATEMENT OF HON. LARRY CRAIG, A U.S. SENATOR FROM IDAHO

        Senator Craig. Mr. Chairman and Chairman Cochran, thank you
    for the courtesy of allowing me to be here, and listen today,
    and participate, and I thank you for those recognitions.
        Let me turn to Senator McCain. The state of play in Arizona
    today, and I monitor it closely as chairman of the other
    Forestry Committee in the Senate, is such that the perfect and
    tragic storm may well be mounting there. With the bug kill that
    is occurring there, the drought that is occurring there, these
    trees, as John said, have no moisture. They cannot defend
    themselves. They are dying.
        We saw tragedy there last summer. That may only be prelude
    to what could occur there this year. As we all know we are a
    bit wetter in the upper end of the Great Basin this year than
    last, as it relates to late winter and early spring rains, and
    so we will burn later in the year. What is going on in Arizona
    and New Mexico, as we speak, could well be prelude to something
    much worse than what we saw last year, and I am quite confident
    Arizonans believe that what they saw last year was about as bad
    as it could get.
        I can appreciate, John, your frustration and your concern
    going home on the weekend and going up to that area on Mount
    Lemon. I had the privilege of being there a few years ago. I
    understand it does not exist today, that community, or at least
    a large part of it does not.
        Chairmen, again, let me thank you, and let me suggest this:
    If we ignore history, then we are going to be doomed to repeat
    it.
        Chairman Cochran, where Chairman Crapo was a few weeks ago,
    in Elk City, in the Red River drainage of Northcentral Idaho,
    is the area where the greatest fire in the history of the North
    American Continent, at least in the Lower 48, started on August
    20, 1910. In that very drainage a lightning strike and the
    prelude or the winds that followed consumed 3 million acres of
    land in Idaho and Northwestern Montana. Listen to these reports
    from a book written about that great blow-up.
        It was reported that ``fire whirls''--and of course those
    are pieces of wood that are afire that break and fly into the
    air--the size of a man's arm were carried along on a 50-mile-
    per-hour wind, swept through towns 50 miles to the east of
    these fires. The sun was completely obscured in Billings,
    Montana, a town 500 miles to the east, and the sky was darkened
    as far east as the State of New York. Some of those forests in
    Idaho and Montana are still recovering today from those fires
    that occurred in 1910.
        Our forest health problems are not an isolated problem in
    the rural West, as you have both said.
        In 1989, Hurricane Hugo slammed ashore in Charleston, South
    Carolina, and cut a path northwest through North Carolina and
    into Virginia.
        On the Francis Marion Forest, 70 percent of the trees were
    killed. We immediately expedited a clean-up process, a salvage
    and a replanting, funneling millions of dollars into that
    effort. Why? It was a hurricane.
        On January 1998, over 17 million acres of forests were
    heavily damaged in an ice storm that stretched from New York,
    across New Hampshire, Vermont and into Maine. Our response was
    an appropriate $48 million to clean it up and restore the
    health of those forests.
        Spring of 1998, a blow-down, followed by a southern bark
    beetle epidemic in the Texas National Forest. We provided the
    emergency efforts. We allowed managers to enter wilderness
    areas--that was in 1999--to deal with the spread of the
    insects, the kind that Chairman Crapo has shown us this
    morning.
        January 4th, 1999, 600,000 acres, Northern Minnesota blow-
    down, literally a hurricane or a tornado came to the ground and
    swept across the forest on the 4th of July. I have seen it.
    Debris was stacked 30 feet high in some instances, of trees
    piled upon trees, piled upon trees.
        At least on most of the private lands, we responded by
    waiving NEPA and allowing landowners to move to immediate
    recovery. Just this last year, supplemental defense
    appropriation bill, Senator Daschle, Senator Johnson, wanted to
    deal with the forest emergencies in their State, and they were
    allowed to do so, to exempt projects from NEPA appeals and
    litigation.
        Each time a common-sense approach was supported by this
    body, this committee, the committee that I chair, and by the
    whole of the Senate and the Congress, and as a result, those
    forests could be restored more healthy.
        Well, let me ask, Mr. Chairman, by unanimous consent, if
    you would please, that the balance of my statement be a part of
    the record.
        Senator Crapo. Without objection.
        Senator Craig. Here is how I want to conclude. This is June
    26th. The long hot summer of wild forest fires has already
    begun, and they are playing themselves out in the States of
    Arizona, New Mexico, and Alaska, as we speak. Hundreds of
    thousands of acres have already burned. In fact, since January
    1 to date, 26,000 fires and 620,000 acres have burned. Compared
    to last year? Well, we were at 2.5 million and some 41,000
    fires. Millions more will burn.
        As John said, Senator McCain said, and as we know, it will
    not be just the acres, it will be potentially thousands of
    homes, already 300-plus, and tragically enough, it could be
    many, many lives. We are in a national crises. I hope we can
    respond quickly.
        Let me also ask that the author of the bill who is with us,
    Congressman Greg Wyden, of Oregon, is here, and I would like to
    ask unanimous consent that his statement become a part of your
    record.
        Senator Crapo. Without objection, so ordered. He would not
    be called ``Wyden,'' though--Greg Walden.
        Senator Craig. Oh, I am sorry, of course. You see, I work
    with Senator Wyden, as the ranking on my committee. Greg, I
    know you better than to call you Ron Wyden.
        [Laughter.]
        Senator Crapo. Just so we are over here on the Senate side.
        Senator Craig. Congressman Walden of the Eastern part of
    the great State of Oregon.
        Senator Crapo. Maybe he would like Senator Walden.
        Senator Craig. We will leave that alone now.
        Chairmen, thank you for your courtesy.
        [The prepared statement of Senator Craig can be found in
    the appendix on page 83.]
        Senator Crapo. Without objection, Representative Walden's
    statement will also be made a part of the record, and we do
    welcome you here, Representative Walden.
        [The prepared statement of Mr. Walden can be found in the
    appendix on page 92.]
        The Chairman. Mr. Chairman, could I just simply join you in
    thanking Senator Craig, as well as Senator McCain, for their
    presence here and the very compelling statements they have made
    about the importance of moving this legislation forward
    quickly. Their leadership is certainly important to the passage
    of this bill, and we are going to count on them for their
    continued help and assistance as we move forward through this
    process.
        Senator Crapo. Thank you, Mr. Chairman.
        Before we move to the next panel, I just want to, once
    again, thank my colleague, Senator Craig, for his work on this
    issue, as I indicated and as he indicated. He chairs the other
    Forestry Committee in the Senate and the Energy Committee, and
    it is just an interesting coincidence that the two Senators
    from Idaho chair the two Forestry Subcommittees in the Senate.
        Senator Craig has been a lion, in terms of the effort, of
    working on this bill and trying to address this issue
    throughout his tenure in the Senate and the House, frankly.
        Senator Craig. Mr. Chairman, you are very courteous and
    kind to say that. We are pleased with your rapid action on this
    bill, Mr. Chairmen, and we are going to move very quickly to
    this bill. It needs to get to the floor of the U.S. Senate in
    the form that it will come out of the committees so that we can
    act.
        Thank you.
        Senator Crapo. Thank you.
        We will call up the next panel, and while they are coming
    up, I just wanted to make another brief comment. Let us call up
    the second panel, which is the Honorable Mark Rey, who is the
    under secretary for Natural Resources and Environment at the
    Department of Agriculture, and the Honorable Lynn Scarlett,
    assistant secretary for Policy, Management and Budget at the
    United States Department of Interior.
        While they are coming up, I just wanted to make one more
    comment, Mr. Chairman, about Red River and the Elk City area
    that both Senator Craig and I have mentioned.
        While I was there last week looking at the trees and
    getting a piece of bark or two to come back and show everybody
    here, one of those foresters who was with us, taking us through
    the forest, reminded me of the fires in the Yellowstone area of
    a few years back, and I think the whole Nation watched as those
    fires ravaged the West. He pointed out to me that in this
    particular forest in Red River, where I was, near Elk City, the
    fuel load in that forest is three to four times as high as was
    the Yellowstone Forest when it burned.
        This community literally does have one road in. It is at
    the end of the road. These are legitimate and serious concerns.
    That is one of the reasons why I call it ``ground zero'' for
    this debate today.
        I do not know if that buzzer means there is a vote on, but
    we will go ahead and start and work for a little while until we
    have to leave to go to a vote.
        With that, let me remind all of the witnesses today that we
    do want to have a lot of interaction with you as the dialogue
    goes on, following your written testimony, and so we encourage
    you to pay attention to the time and keep your remarks to 5
    minutes and summarize your testimony which we have read. Then,
    we will try to engage with some dialogue with you, and you can
    get the rest of what you wanted to say out in the questions and
    answers.
        Now, we do have a vote on. Let me say I suspect that we can
    get through your testimony, then we will break, and then we
    will come back and begin the questioning.
        Mr. Rey, would you like to begin?
        Ms. Scarlett, do you want to be first? All right.

      STATEMENT OF LYNN SCARLETT, ASSISTANT SECRETARY FOR POLICY,
                 MANAGEMENT AND BUDGET, UNITED STATES
               DEPARTMENT OF THE INTERIOR, WASHINGTON, DC

        Ms. Scarlett. Thank you very much, and thanks to the
    committee to give us this opportunity to speak today.
        As you may recall, on May 20th of this year, President Bush
    called on Congress to move as quickly as possible on H.R. 1904,
    the Healthy Forest Restoration Act. The Department of Interior
    and the Department of Agriculture, jointly working together,
    strongly support H.R. 1904. We believe it will help us achieve
    that vision of healthy lands and thriving communities.
        We would like to work with the committee to make several
    technical amendments to clarify portions of the bill.
        The Senators have noted here today the need for action to
    restore our Nation's public forests and rangelands. One hundred
    and ninety million acres, by our estimate, twice the size of my
    State of California, remain in poor condition. Last year, fires
    burned over 7.2 million acres.
        Just last week, as we have heard noted, the Aspen fire in
    Arizona blew out of the Pusch Ridge Wilderness, in Southern
    Arizona. Our latest figures show that fire at 30,000 acres and
    with over 300 homes and businesses burned, still burning out of
    control. Arizona, California, Idaho, Oregon, Utah, Washington,
    parts of Colorado and Wyoming, we are predicting above-average
    fire activity this year.
        We face, as the Senators have noted, unusually high threats
    from the spread of invasives and pathogens, such as we saw in
    the wood passed around. The result of this is the death of
    millions of trees, and these areas of course burn with
    uncharacteristic ferocity.
        We have undertaken several actions administratively to
    address these challenges. We are hampered by procedural delays,
    excessive analysis and ineffective public involvement.
    Recognizing these challenges, the President launched, in August
    of last year, his Healthy Forests Initiative. The centerpiece
    of that effort is collaboration and management improvements. We
    have a composite of administrative tools and legislative tools
    to restore deteriorated lands to health.
        Let me just briefly summarize what we have done to date,
    but we believe we need more in the form of this legislation.
        We have issued Endangered Species Act guidance that allows
    us to group multiple projects into one consultation. We have
    also issued guidance for ESA that allows us to evaluate short-
    and long-term beneficial and adverse consequences of any action
    taken.
        We have issued a new-model environmental assessment to
    allow us to bring that assessment to concise and focused
    documentation. We have 15 pilot projects underway to explore
    the use of that environmental assessment.
        We have developed a categorical exclusion under the NEPA,
    the National Environmental Policy Act, for fuels reductions
    projects. Those exclusions were developed based on a review of
    2,700 projects. We have also proposed some changes to our ESA
    Section 7 regulations to improve consultation procedures.
        We would also like to thank Congress for their recent
    consolidated appropriations resolution which gave the Bureau of
    Land Management authority to engage in stewardship contracting,
    along with the Forest Service. This will allow us to work with
    private businesses, nonprofit groups, tribes, local Governments
    and others in trying to address our fuels reduction projects
    while gaining some value from that effort. We believe this tool
    will help our managers undertake the actions needed.
        We still need additional tools, and it is with that in mind
    that I turn to Mark Rey to offer his observations that reflect
    our joint interest in H.R. 1904.
        Senator Crapo. Thank you very much.
        Mr. Rey.

              STATEMENT OF MARK REY, UNDER SECRETARY FOR
    NATURAL RESOURCES AND THE ENVIRONMENT, UNITED STATES DEPARTMENT
                     OF AGRICULTURE, WASHINGTON, DC

        Mr. Rey. Even with what we have been able to accomplish by
    way of administrative changes, there are real limitations to
    what we can do on the ground to address this problem with the
    rapidity that the situation demands, and that is why H.R. 1904
    will provide us with some of those additional needed
    authorities.
        Let me review, briefly, the provisions of the bill that we
    find particularly useful.
        Title I of the bill would improve processes which now
    significantly contribute to costly delays, and it would allow
    timely implementation of critical fuels reduction projects. It
    would provide streamlined procedures for both of our
    departments to plan and conduct hazardous fuel projects on up
    to the 20 million acres of Federal land that are at most risk
    from wildfires, while preserving public input into the
    decision-making process.
        The bill would allow the agencies to reduce the broad range
    of proposed alternatives that they are required to analyze for
    proposed hazardous fuel reduction projects and would maintain
    necessary public participation requirements.
        The title would allow the Secretaries to establish an
    administrative appeals process for these projects as an
    alternative to the current inflexible, legislatively mandated
    appeals process.
        Finally, the title would provide a standard for injunctive
    relief and timeframes for judicial review of these kinds of
    projects.
        Title II would authorize a $25-million grant program for
    each of the fiscal years 2004 through 2008. The Secretaries
    would be authorized to make grants to persons who own or
    operate a facility that uses biomass or to offset the cost of
    projects to add value to biomass. It is a reality that much of
    the material that has to be taken out of the forests and
    rangelands that are at risk is not commercially valuable,
    except for biomass purposes, and Title II would allow us to
    increase the use of this material.
        Title III would authorize a $15-million program within the
    Forest Service for each of the fiscal years 2004 through 2008
    to provide State forestry agencies technical, financial and
    related assistance for the purpose of expanding State capacity
    to address watershed issues on non-Federal forest lands that
    are at risk.
        Title IV would require the Secretaries of Agriculture and
    the Interior, with the assistance of universities and forestry
    schools, to develop an accelerated, basic and applied
    assessment program on certain Federal lands to combat
    infestations by bark beetles, including southern pine beetles,
    as well as other insects such as the hemlock woolly adelgids,
    emerald ash bores, red oak borers, and white oak borers. Insect
    infestations, both beetles and other insects, are becoming an
    increasing problem across the country, not just in the West.
        Title V authorizes a $15-million Healthy Forest Reserve
    Program within the Forest Service, working in cooperation with
    the Secretary of the Interior, for each of the fiscal years
    2004 through 2008, for the purposes of protecting, restoring
    and enhancing degraded forest ecosystems on private lands to
    promote the recovery of threatened or endangered species.
        Finally, Title VI, would direct the Secretary of
    Agriculture to carry out a comprehensive program to inventory,
    monitor, characterize, assess and identify the condition of
    forest stands nationwide.
        Taken in its totality, the bill provides a number of
    important and exceptionally useful tools to both evaluate and
    address, on an expedited manner, the forest health problems
    that affect forest and rangeland conditions throughout the
    United States, recognizing that they vary from region-to-
    region.
        That concludes my brief summary of the bill, and when you
    come back from your vote, we will both be here waiting to
    answer your questions.
        Thank you.
        [The prepared statement of Mr. Rey can be found in the
    appendix on page 95.]
        Senator Crapo. Thank you very much, Ms. Scarlett and Mr.
    Rey. We appreciate not only your work and support on this, but
    your succinctness in your testimony.
        Again, before we break, I want to thank Chairman Cochran
    for allowing me to chair this committee and for working with us
    so closely on these issues.
        As indicated, we will now break. There are two votes. We
    will go over and vote on this first vote. Hopefully, it is
    getting close to its conclusion. We will then vote early on the
    second vote and return as quickly as we can.
        At this point, the hearing is in recess.
        [Recess.]
        Senator Crapo. The hearing will come to order.
        We appreciate everybody's participation today and your
    patience for us while we voted. We will probably be
    interrupted, depending on the length of the hearing, by votes
    throughout the day as we try to work on the Medicare
    Prescription Drug issue on the floor.
        Let me begin my questions, first, and I would like to throw
    this question out to either of you, and that is would the
    treatment of the Wildland Urban Interface have prevented the
    Aspen fire that we just recently saw?
        Mr. Rey. No. We actually treated the Wildland Urban
    Interface around the city of Summerhaven. The problem that
    Summerhaven is saddled with is that the municipal boundary is
    less than a mile from a wilderness boundary. The fire
    originated in a wilderness area. By the time it left the
    wilderness area, it was already burning with sufficient
    intensity and with a high wind behind it such that it burned
    through most of our treatments in the Wildland Urban Interface,
    in the area between the municipal boundary of Summerhaven and
    the wilderness area.
        The topography in the particular situation is difficult
    because Summerhaven is built on a side hill at the top of a
    valley that opens, and that topography acted like a flue, with
    the wind behind it driving the fire out of the wilderness,
    through the Wildland Urban Interface and into the community. It
    was a pretty good example of why just treating the Wildland
    Urban Interface does not always get you the result that you
    would like in terms of protecting a community.
        Senator Crapo. We have to treat more broadly and maintain
    the right kind of ecosystem in the entire forest.
        Mr. Rey. Both for ecological reasons, we would submit, but
    in some cases to protect communities as well. Some communities
    are situated in areas where a treatment in the immediate
    vicinity of the community and the Wildland Urban Interface may
    not be adequate.
        Senator Crapo. Let me be sure I understand you correctly.
        A few years back when we were having the big fires out in
    Idaho, I went out and was actually taken up in a helicopter to
    see what was happening at the fire line. What was happening
    there was each night they would try to build a break against
    the fire and clear an area to a line to stop the fire at. The
    fire would essentially leap over it, leap from ridge to ridge
    sometimes, as it was burning so hot.
        The point that they were making was that if they cannot
    keep the fire contained, in terms of having the ability to keep
    it burning at a lower rate, then it gets so hot that you do not
    really have the ability to build a line that can hold against
    the fire.
        Is that the same principle that you are talking about with
    the Urban Interface?
        Mr. Rey. Yes, essentially.
        Senator Crapo. Ms. Scarlett, did you want to add anything?
        Ms. Scarlett. Just to add to that a little bit. The example
    you gave, we have some of these catastrophic fires, where the
    plumes of smoke go up 30,000 or more feet into the air, and the
    ash can fly, if you will, miles. Being just a few hundred feet
    around an Urban Interface is not going to be adequate.
        I do want to add, however, some additional complexities:
        One is the matter of watersheds. Several of the fires that
    we have had last year that were catastrophic damaged watersheds
    that are quite a ways outside of an Urban Interface, but
    damaged the water supply. We have one of our environmental
    assessment pilot projects, which is actually along a right-of-
    way for transmission lines. Again, if you were to have a fire
    that would get one of those transmission lines, you could put
    out the power for entire regions, entire States. We think the
    challenge is much more complex than just thinking about the
    Urban Interface.
        Senator Crapo. Thank you. I do not know if you are familiar
    with it, but just within the last day or two, Senators Bingaman
    and Daschle introduced what they entitled, ``The Collaborative
    Forest Health Act.'' Frankly, I have not read the act myself.
    If you have not either, I will not expect you to testify as to
    its content, but if you are familiar with its approach as in
    contrast with the approach of the legislation we are
    considering here today, could you comment on what the
    differences are and whether you think that the approach taken
    in that act is the correct approach.
        Mr. Rey. We have looked at the act, albeit relatively
    cursorily, since it only has recently been introduced, and we
    are pleased that other Senators, other members, are expressing
    an interest in this issue in putting forward proposals to
    address it.
        Regrettably, the bill appears to create more process than
    it avoids, and as written, perhaps unintentionally, has the
    prospect of even setting back some of the administrative
    initiatives to accelerate treatments that we already have
    underway. As I said, I do not think that was the intent, but I
    think it would be the unintended result. There are some
    significant difficulties that we have with the bill.
        Many people accuse us of fiddling, as this crisis unfolds,
    and I fear if you gave us that measure, it would become a
    Stradivarius.
        Senator Crapo. Thank you.
        Ms. Scarlett, did you want to add anything?
        Ms. Scarlett. We have not had time to review the bill in
    detail, but I think our general, initial comments would be
    similar to those of Mark Rey; that is, we certainly appreciate
    the focus, we certainly appreciate the interest in the subject,
    but we do not think it provides us the tools that we need, nor
    the focus that we need, in order to get where we need to go.
        Senator Crapo. Thank you. As you may have noticed, we are
    using the clock up here, and for the witnesses who will testify
    in the future, the green means you can keep going, the yellow
    means you have about a minute left, and red means stop. It says
    to me to stop, so I will turn to the Chairman. Chairman
    Cochran.
        The Chairman. Thank you. Mr. Chairman, thank you very much.
        Senator Crapo. I do not think we will use the clock on the
    Chairman.
        [Laughter.]
        The Chairman. Oh, no, that is fine. I am happy to abide by
    the time restrictions. We do want to get through the hearing,
    so we can get busy working on the bill, so we can get it out.
    We need to report it out as soon as possible. This is a matter
    of some urgency, so that may be another reason to abide by the
    strict time limits here today.
        Mr. Rey, let me ask you if you could comment on the program
    established in the bill which would enable us to have a remote
    sensing system in place to inventory forest lands and identify
    threats to forests. Is that something that we should work to
    keep in the bill?
        Mr. Rey. That is a helpful element in the bill. Much of the
    unhappiness with our current forest survey and forest inventory
    work is that the time line between inventories is too long to
    do a good job of tracking rapidly developing forest conditions.
    What this proposal does is give us the prospect of accelerating
    the inventory work we are doing by using some additional tools
    so that we are going to be better at catching some of these
    epidemics as they start and hopefully be able to treat them
    more quickly as well.
        The Chairman. Current law provides a categorical exclusion
    of the National Environmental Policy Act under some
    circumstances. I wonder if both of you could comment as to your
    impressions of the legislation and the effect that it might
    have on the categorical exclusion of the National Environmental
    Policy Act.
        Mr. Rey. H.R. 1904, as drafted, would have no effect on
    either the authority under the National Environmental Policy
    Act to develop categorical exclusions, nor on the categorical
    exclusions that we currently operate under, some of which we
    have had longer, others of which have been part of the Healthy
    Forests Initiative.
        By contrast, what H.R. 1904 does is that it looks at
    different types of projects, those that are not amenable to
    being treated through a categorical exclusion because they are
    larger or more complex or because they raise more environmental
    concerns and therefore require either an environmental
    assessment, which is the next level of analysis above a
    categorical exclusion or an Environmental Impact Statement,
    which is the highest level of analysis.
        What H.R. 1904 would do would be, for the kinds of projects
    that are covered, an environmental assessment or an
    Environmental Impact Statement, accelerate the procedures we
    use to develop those documents in a way that will save us
    considerable time and money in getting the projects underway.
        Ms. Scarlett.
        Ms. Scarlett. Yes. I do not have anything to add to that.
    We see these as complementary tools that work together rather
    than at odds. They are complementary tools.
        The Chairman. Let me ask you if you believe the bill before
    us adequately addresses the need for research and treatment of
    forests damaged or threatened by disease and insects.
        Mr. Rey. Title IV provides us with an opportunity to
    accelerate some of the research that we already have underway,
    in conjunction with the coalition of universities that the
    Forest Service partners with for cooperative research. Title IV
    provides us the opportunity to accelerate some of the insect
    and disease research that we are already doing and hopefully
    utilize that research, in an applied sense, so that we are able
    to treat more of the areas that are currently at risk to broad-
    scale infestations.
        The Chairman. Ms. Scarlett, do you think these provisions
    will be helpful in this regard as well?
        Ms. Scarlett. We are particularly interested in the
    provisions that would help us research more insect infestation
    and the related challenges. I would like to say that we would,
    as we currently understand it, the inventorying provisions are
    focused on the Forest Service, and we certainly would also like
    that to apply to our woodlands and rangelands. We have similar
    inventorying problems.
        The Chairman. Thank you very much.
        Thank you, Mr. Chairman.
        Senator Crapo. Thank you, Mr. Chairman.
        Senator Craig. I will be very brief, and I thank you for
    the courtesy of allowing me. I know you have a full agenda.
        If the forests that are in question today, and are at risk
    by conditions therein were private, how would they be treated?
        Mr. Rey. Generally speaking, private landowners react much
    more quickly to either fires or insect and disease infestations
    and move to treat them more quickly. The same could be said for
    most State-owned forest lands, as well as most tribal lands.
    Unfortunately, the Federal Government, among all forest and
    rangeland owners in the country, is the slowest at responding
    to these kinds of circumstances.
        Ms. Scarlett. Senator Craig, I might just add that that
    really is a very important issue. We just came from the Western
    Governors' Association Summit last week, and many of the State
    foresters, the tribes and private landowners express a concern
    that no matter what they do on their lands, if the adjacent
    public lands are not also treated, their efforts are
    undermined, and so it is important that we all work together
    and are all able to treat these lands in a more coherent,
    integrated way.
        Senator Craig. Well, the reason I ask that question, not
    only the situation in Arizona today, we are not going to go
    into wilderness areas. This legislation does not allow that.
    The Congress would not allow that. We have 70/90-plus million
    acres out there, maybe over 100, outside of wilderness areas, a
    lot of it in roadless ares, and the question will be how do we
    access those, if we can access those? It is obvious that you
    have to get beyond the urban interface, if you are going to
    truly treat these situations. Summerhaven speaks to that issue.
        As we are working to monitor, and understand, and develop
    devices, Mr. Chairman, the thing that frustrates me is that
    everybody else, other than the Federal Government, already
    knows the problem and is working at it. They have the tools.
    They have the devices. They know how to treat bugs. It is
    nothing new. It is not a phenomena unique to forests.
        What is unique to the Federal forests are all of the
    criteria that we require, the screening process, the legal
    processes involved here. While I am not suggesting we move in
    that direction, totally, clearly, the flexibility to do some of
    the things that good foresters already know what to do, and how
    to do, ought to be allowed to save these forests. Does 1904
    allow that?
        Mr. Rey. Yes, 1904 gives us some good tools, perhaps not
    all of the tools that we would like in a perfect world, but it
    gives us some useful tools for moving forward in combination
    with the administrative initiatives that we already have
    underway.
        Senator Craig. Super. Thank you.
        Thank you, Mr. Chairman.
        Senator Crapo. Thank you. I am going to have another round
    of questions here.
        The first question that I would like to pursue is that one
    of the criticisms that we hear about H.R. 1904 is that it cuts
    the public out of the process and that fuels reduction projects
    just turn everything over to the agencies to do what the
    agencies want to have done.
        Frankly, I would like your comments on the public
    involvement that is engaged in under the proposed legislation.
        Mr. Rey. Frankly, a number of the criticisms I have heard
    of H.R. 1904 make me wonder whether there is another version of
    that bill floating around someplace that I have not heard or
    have not seen, and that is one of them. Because what H.R. 1904
    does is to retain virtually all of the public participation
    requirements that exist under present law, as well as put a
    premium on collaboration with the public in the selection of
    projects that are going to be subject to the expedited
    provisions under NEPA that Title I of the act allows.
        I am having a little bit of difficulty finding out exactly
    where the restrictions or the diminution of public involvement
    fall in this bill because I do not see it.
        Ms. Scarlett. In fact, I would even strengthen that
    comment. H.R. 1904 fits well within the National Fire Plan and
    the Ten-Year Implementation Plan that we, along with States,
    tribes, State foresters and others, developed. The centerpiece
    of that, in fact, is collaboration. The entire way that we will
    do fuels project selection is through collaborative processes
    with communities. I would say that 1904, and in the context of
    the National Fire Plan, gives us greater than ever public
    participation and cooperation.
        Senator Crapo. Thank you.
        I want to go over a list of items here, and I do not really
    expect more from you than just an acknowledgement, I if I am
    correct, that the bill does require the following participation
    and collaboration or compliance with various proposals.
        It is my understanding that the bill requires that all
    fuels projects under the bill must comply with Agency land
    management plans; is that correct?
        Mr. Rey. That is correct.
        Senator Crapo. Those plans involve a lot of public
    involvement as they are developed, correct?
        Ms. Scarlett. Right, extensive.
        Senator Crapo. They also require compliance with State
    forestry plans; is that correct?
        Mr. Rey. To the extent that there are State forest
    practices that apply on Federal lands, they would, correct.
        Senator Crapo. They would comply. It also requires
    compliance with the Ten-Year Comprehensive Strategy developed
    by the Western Governors' Association.
        Mr. Rey. Correct.
        Ms. Scarlett. That is correct.
        Senator Crapo. Another criticism that we hear about the
    bill often is that it would eliminate or seriously reduce
    judicial review. Could both of you comment on that issue.
        Mr. Rey. The bill neither reduces the instances of judicial
    review, and of course if it does not reduce the instances of
    judicial review, it cannot eliminate judicial review, by
    definition. What the bill does do is to provide for some
    accelerated schedules for filing complaints against these kinds
    of projects, since, in many cases, time is of the essence. It
    exhorts Federal judges to give these cases priority on their
    dockets, which would be a good thing if they could do that.
        Then, last, it directs judges, as they are reviewing
    requests for injunctions, to balance both the short- and long-
    term risks and benefits associated with pursuing the project.
    That last is an important component to it. Because what we have
    found is that the decision by a judge about whether to issue an
    injunction nor not has developed over 40 years of jurisprudence
    largely when judges have been addressing commercial timber
    sales. In balancing the harms of whether an injunction should
    issue or not, the judges have generally proceeded on the
    premise that you cannot uncut a tree. Therefore, an injunction
    should always issue.
        Now, what we find is that when one of these fuels treatment
    projects are challenged, it is in the interest of plaintiffs to
    present the case to a judge as if the issue was
    indistinguishable from a commercial timber sale, which in most
    cases it is, and the judges are responding based upon the
    jurisprudence that has already been established.
        What we think this provision will do will allow judges to
    balance the proposition that you cannot uncut a treat against
    the equally valid proposition that you cannot unburn a forest,
    and if they will balance it that way, we think probably justice
    will be done in a better way.
        Senator Crapo. Ms. Scarlett.
        Ms. Scarlett. Just one more addition to Mark's comments,
    and that is the criticality of expedited review. People often
    do not realize that there is a narrow window of opportunity to
    do these fuels treatment projects, and if that goes by, we are
    often in a position of having to wait an entire year for that
    opportunity to arise again. That timeliness is critical.
        Senator Crapo. Thank you.
        Chairman Cochran.
        The Chairman. Mr. Chairman, thank you. I do not have any
    other questions of the witnesses.
        We appreciate so much your being here, though, and the
    assistance you are providing us in an understanding of the
    legislation.
        Senator Crapo. Thank you.
        Senator Craig, did you want to ask more questions?
        Senator Craig. I do not have any more. I do thank you.
        Senator Crapo. Thank you.
        We have been joined by Senator Lincoln from Arkansas.
    Senator, if have any opening statement you would like to make,
    you are welcome to make that now and/or ask some questions of
    our panel.

    STATEMENT OF HON. BLANCHE LINCOLN, A U.S. SENATOR FROM ARKANSAS

        Senator Lincoln. Thank you, Mr. Chairman. I will just be
    very brief, if I can, with a few comments and then just a
    couple of questions. I apologize for running late.
        I do want to thank both Chairman Crapo and Chairman Cochran
    for their leadership in this issue and willingness to work with
    us on so many issues that affect us and the health of our
    forests.
        The health of the Nation's public and private forests is in
    the foremost of all of our minds this morning. Throughout my
    home State of Arkansas, we have begun to see large, barren and
    brown patches in many places where rich green oak trees once
    thrived. It is a clear indication of an epidemic of oak decline
    and mortality.
        This epidemic has affected both public and private
    forestlands and seriously threatened the health of our forests,
    not to mention what it has done to the concerns we have about
    our way of life in rural States like Arkansas, where we depend
    on our forests not only for much of our livelihood, but also
    for our heritage and the wonderful pastimes that many of us
    have come to know and understand about our home States.
        We must find ways to address these epidemics soon or risk
    the loss of the majority of the oak component of Arkansas'
    forests. I am hopeful that any legislation produced by this
    committee will provide the means to at least attempt to
    mitigate our insect epidemics and begin preventive measures to
    ensure that it is never this bad again because it has been
    devastating in my State what has happened in our forests in
    Arkansas.
        I am also proud to have an Arkansan testifying later on
    today--Dr. Fred Stephen, who is an entomologist and an interim
    department head of the Entomology Department at the University
    of Arkansas. He is an expert in the field of bugs eating their
    way through our forests, and I am very proud that he is here
    today to help us with the solutions that we are looking for.
        I would like to ask the panel, given our problems in
    Arkansas and in the South with insect infestation, particularly
    the red oak borer in the Ozarks, in each of your estimations,
    will the insect infestation section of the bill or the other
    aspects of the bill help us address this problem adequately?
        I guess my real question is will research alone solve our
    problem?
        Mr. Rey. Research is a necessary component to understanding
    how these infestations are moving and what the circumstances
    are today that are causing the rapid increase in spread that we
    are seeing. That part of Title IV of the bill will be
    exceptionally helpful.
        The other part of Title IV, which is the applied research,
    in experimenting with different treatments, will also be
    helpful.
        Those two provisions, combined with some of the
    administrative reforms that we have already implemented, in
    terms of using categorical exclusions for certain hazard fuel
    reduction projects in combination will get us a lot further
    down the road than we are right now.
        Senator Lincoln. Ms. Scarlett.
        Ms. Scarlett. Yes. I do not know that I have anything to
    add to that. The bill does cover both on the research side, an
    element that will allow us to better understand these
    infestations and how to address and deal with them, and then
    give us the tool on the treatment side, the tools on the
    treatment side, to begin to remove some of that material, and
    thereby help bring the forests back to a better, healthy
    condition.
        Senator Lincoln. I guess, given a virtual forest of unmet
    needs, and a finite level of resources that we can afford to
    apply to the bill where should we selectively apply those
    resources first--suppression of current problems or prevention
    of future ones? There is obviously a balance to be met in that.
    We would certainly like to have your perspective.
        Ms. Scarlett. Let me address that.
        You said it exactly right. What we do need is a balance.
    Certainly, as we have challenges out there, fires, such as
    those that are burning right now in Arizona, do need
    suppression activities to prevent loss of life and related
    damage. By the same token, if we simply operate on a
    suppression mode, without attention to bringing our forests
    back to health, we will be in constant catch up.
        What we are trying to do with this legislative tool,
    working with you and the administrative tools that we have put
    in place, is to begin to get ahead of that game. Certainly,
    with respect to our budgets, they reflect that balance, and
    with respect to these tools, we think they reflect that
    balance.
        We have 190 million acres of public lands that we believe
    are in unhealthy condition, and we are right now treating not
    more than about 2 million of them. Additional effort and focus
    is needed on that preventive side.
        Just looking at that from the Healthy Forest perspective,
    looking at management, tree density, tree age, does management
    play, what kind of a level of role does management play in
    really maintaining tree vigor and overall forest ecosystem
    health? Can you give us an idea of that and the authority that
    is there to do that.
        Mr. Rey. It is essential to apply what we know on the
    ground to address the situation that we are currently
    experiencing. Fire is a natural component of most North
    American ecosystems, but the fires that are burning today are
    not natural fires. They are more intense, they are burning with
    greater ferocity, and they are presenting catastrophic results
    in their wake.
        The only way that we are going to break that cycle is by
    actively managing the most at-risk stands to reduce the number
    of trees per acre or the amount of cellulose per acre on
    rangelands and to bring these areas back to a situation where
    fire can play its natural role and where we can use fire more
    broadly to maintain what were the natural stand densities that
    we would have seen in these areas at the turn of the last
    century, before we started into 100 years of fire suppression
    and before, frankly, we entered into what is a multi-decadal
    wet cycle that started in the mid-1970's.
        Senator Lincoln. Well, could you visit or add to, the role
    of the forests being stressed from insect and disease leading
    up to a catastrophic fire. We talk about fuel. We talk about
    epidemic insect infestation, some of it exacerbated by
    monocultures in some of our forests. Can you talk about are
    managed forests likely to suffer more or less catastrophic
    insect and disease outbreaks from fires?
        Mr. Rey. Here is about how the cycle works. As you get more
    trees or more shrubs per acre, the trees that are there begin
    to compete for water, water being the limiting resource. If you
    have 2- or 3,000 trees per acre, instead of 2- or 300 trees per
    acre, almost, by definition, the 2- to 3,000 trees are going to
    be water stressed. As they get water stressed over particularly
    a drought period, a 3- to 5-year drought cycle, then they
    become less able to withstand the effect of insects,
    particularly bark beetles.
        A healthy tree that is not moisture stressed will repel a
    certainly amount of bark beetle infestation by generating pitch
    to flood the borer holes and keep the beetles at bay. A tree
    that is drought stressed does not have the ability to pitch out
    the beetles, and so the beetles flourish, and then the
    situation starts to expand on itself exponentially, to where
    the infestation begins to spread through the drought-stressed
    trees, setting up a very dense stand of dead and dying trees,
    which are dry and waiting for an ignition to occur.
        When ignition occurs in that circumstance, it is not a low-
    intensity fire. It climbs the branches, the ``ladder fuels,''
    as our firefighters call them, to get into the crown of the
    tree, so that it then begins to move on its own power, in
    extreme situations, creating its own weather system as it
    consumes large acreages of trees, with a heavy wind behind it,
    in a fairly fast-moving fashion.
        Ms. Scarlett. Let me add one additional dimension or
    complexity to that picture that Mark painted, and that is the
    susceptibility in those diseased forests of invasive species.
    Once you get that diseased forest, they also become more
    susceptible to invasives, which themselves can increase the
    fuel load, increase the susceptibility to the kinds of intense
    catastrophic fires that we are discussing.
        Mr. Rey. By contrast, if you are looking at an area that
    has been thinned or managed to reduce the stand density or the
    amount of vegetation to what we consider more normal, in an
    historic context since, then those trees are going to be less
    moisture stressed, even in drought conditions because there
    will be less of them competing for whatever moisture is
    available.
        When a fire ignites, it will, generally speaking, burn
    along the ground in a low-intensity fashion without the same
    degree of prospect that it will enter the crowns of the trees
    and start a catastrophic situation developing.
        Senator Lincoln. Thank you, Mr. Chairman.
        I just wanted to make sure that there is no doubt that fire
    is an issue, and it is a very important issue for all of us in
    our forests, but for those of us in the South that have been
    ravaged by the epidemics of insects, I want to make sure that
    we elevate that issue because it has really devastated many of
    our forests in the South. I appreciate very much the panel and
    the witnesses here.
        Thank you, Mr. Chairman.
        Senator Crapo. Thank you, Senator Lincoln. In fact, you,
    very thoroughly, went through one of my lines of questioning,
    too, because we have the same problems, I remember the hearing
    you held, when you were chairing the committee, with regard to
    the red oak borer. I was showing examples of our pine beetles.
    We have the same kinds of concerns, and there are some who say
    we should limit this bill to simply fire issues, and I think
    that your questions go into a very important additional aspect
    of the whole problem.
        I have one more question, and then we will see if anybody
    else has a question before we go to the next panel. This one is
    for the Forest Service.
        Mr. Rey, Section 105 requires the development of a new
    administrative review process for the Forest Service under the
    bill, in lieu of the current appeals process, and I just wanted
    your comment on why you believe this would be useful.
        Mr. Rey. The current appeals process is mandated by
    statutory language in the fiscal year 1993 Interior
    appropriations bill. It is, therefore, the product of an
    appropriations rider. It is also virtually the only
    administrative appellate process in the Federal Government that
    is mandated by statute, and as such, and as things have changed
    in the last 10 years, we found that it is difficult to
    administer. For example, it requires notice and comment
    procedures beyond those required under any other law, most
    particularly the National Environmental Policy Act.
        What the provision in H.R. 1904 would provide us the
    opportunity to do is for these particular kinds of projects,
    where time is of the essence, is to start with a clean slate
    and construct an appeals process that is a little bit more
    flexible to work with and that we can move through the appeals
    process a little bit more expeditiously.
        It would also allow us to work with the Department of
    Interior to construct a similar appeals process for both
    departments so that potential appellants, who want to exercise
    the right to challenge one of our projects, could do so knowing
    that they would not have to use or learn different procedures
    if they were challenging an Interior Department or an
    Agriculture Department project. It has the prospect for
    simplifying the process for the public as well.
        Senator Crapo. Thank you very much.
        If there are no additional questions of this panel----
        Senator Lincoln. May I just ask one, Mr. Chairman?
        Senator Crapo. Senator Lincoln, please.
        Senator Lincoln. As I mentioned earlier the balance when we
    talk about suppression of current problems or the prevention of
    future ones, I would just like to get a brief answer from you
    all about the balance in terms of appropriations going to
    different areas.
        I know that Chairman Cochran will be sending money your way
    from the Appropriations Committee, and I want to get an idea
    from you where you would spend those appropriations.
        Ms. Scarlett. We certainly look forward to working with the
    Congress on that issue. We think that the budgets that we
    currently have provide a good mix of the preventive measures,
    as well as the fire preparedness and suppression.
        One of the things that we are looking forward to, as we get
    the tools, should this bill pass, is greater management
    efficiency so that we can, with our fuels treatment, get more
    dollars on the ground and less spent, actually, in
    administrative type of activities. I am pleased to say that we
    are getting better and better at our fuels treatments, and we
    have actually substantially increased our ability to take those
    dollars and have them go further. This tool will enable us to
    do that even better.
        Mr. Rey. Let me illustrate that in a unit cost way.
    Typically, today, when we do an Environmental Impact Statement,
    the cost of that runs us from $1.5 million to $2 million for a
    significant project. The average Environmental Impact Statement
    will have probably about nine alternatives. We will do the
    analysis on each of the nine alternatives. That is what
    generates the cost of $1.5 million.
        What Title I of this bill says is, if you are looking at a
    fuels treatment project, you are basically looking at the
    proposition of whether you are going to do it or not. Those the
    only two alternatives that you really should need to evaluate;
    the no-action alternative or the alternative to proceed.
        Well, what that means is that we will be evaluating less
    than a third of the alternatives that we normally would in
    order to meet the current case law under NEPA for a broad range
    of alternatives. That suggests we will probably reduce the
    price of doing an Environmental Impact Statement for these
    kinds of projects by as much as two-thirds or maybe slightly
    more. That is money we can use to put back on the ground, to do
    more projects on the ground, and to accelerate the rate of the
    work that we need to do here.
        In terms of geographic distribution of where we do it, one
    of the benefits of the Ten-Year Fire Plan is that, working with
    the National Governors' Association, we are looking across
    boundaries and jurisdictions to get a sense of priorities among
    regions as to where the work should be most heavily
    concentrated. Our work there has been informed by the
    Governors, by a considerable extent.
        Senator Lincoln. Our Southern forests are a lot different,
    both in demographics, as well as size, as also in needs, in
    terms of insect versus some of the fuel issues. I just want to
    make sure that that is taken into consideration and that we
    make sure we get our fair share.
        [Laughter.]
        Senator Lincoln. Thank you very much.
        Thank you, Mr. Chairman.
        Senator Crapo. We want to see the same thing. One of our
    objectives here is to be sure that this is truly a national
    bill, not only because it is important to be sure that
    everybody is protected on this important issue, but because we
    want to have a strong, bipartisan, broadly supported bill, and
    so we look forward to working with you to make sure that that
    is the way it works out.
        If there are no further questions, then we will excuse this
    panel. Ms. Scarlett, Mr. Rey, we appreciate the time you have
    given to this effort and that you have given to the committee
    to present this information today.
        We will now move to our third panel, and you may begin
    coming up. Our third panel consists of Mr. Mike Carroll, from
    the Division of Forestry in the Minnesota Department of Natural
    Resources; Dr. Fred Stephen, the interim department head at the
    Department of Entomology at the University of Arkansas; Mr. Tom
    Nelson, director of Timberlands, Sierra Pacific Industries from
    Redding, California; Ms. Jackie McAvoy, council member for Post
    Falls City in Post Falls, Idaho; and Mr. Michael Petersen of
    the Lands Council from Spokane, Washington.
        Ladies and gentlemen, we welcome you all here with us
    today. I would like to ask you to remember to watch the clock
    because we do want to have a lot of opportunity; to get into
    questions and dialog with you.
        We will proceed in the order that I called your names.
        Mr. Carroll, you may begin.

           STATEMENT OF MIKE CARROLL, DIVISION OF FORESTRY,
            MINNESOTA DEPARTMENT OF NATURAL RESOURCES, ST.
                            PAUL, MINNESOTA

        Mr. Carroll. Good morning. Thank you, Mr. Chairman,
    committee members. My name is Mike Carroll, and I am pleased--
    --
        Senator Crapo. Can you pull that microphone a little closer
    and be sure that it is on.
        Mr. Carroll. That would help.
        Senator Crapo. Yes. Thank you.
        Mr. Carroll. Again, I am pleased to be here today and
    testify on behalf of the National Association of State
    Foresters.
        I am a member of their Forest Health, Fire and Resource
    Committees. In Minnesota, my home State, forest ownership is a
    patchwork quilt of public lands administered by the tribes, the
    U.S. Forest Service, the State, very aggressive county land
    management departments, and it is intermingled with wide,
    privately held wood lots.
        We work together across the forest spectrum, from the urban
    yard tree, to the shelterbelt, to the working forests, to old
    growth and in wilderness stands. This bill that you are
    proposing would help us protect and improve the sustainability
    of multiple values in these varied ecosystems dominated by
    trees.
        The National Association of State Foresters believes the
    Healthy Forests Restoration Act will clearly support the
    implementation of the National Fire Plan. This is not just a
    Western fires issue, as you have heard. This act helps to
    address the national need for active forest management across
    mixed ownerships at a landscape level. We have addressed those
    issues.
        NASF supports forest biomass utilization. Making use of
    otherwise noncommercial wood products provides numerous
    environmental benefits, and selective thinning to reduce stand
    densities can also promote species and age class diversity,
    while resulting in a more vigorous and resilient stand.
        In Minnesota, biomass energy is planned to help fuel our
    mining industry. In Minnesota, our lakes and streams are a part
    of our heritage and our sense of place and well-being. Clean
    water starts in the forest. The Watershed Assistance Program
    will build and strengthen the ability of States, communities
    and private landowners to mitigate water quality problems,
    restore watershed conditions, improve drinking water and
    address threats to forest health. I provide several examples
    from across the country in my written statement.
        Currently, there is no program in USDA Forest Service
    authorities that directly supports watershed protection and
    restoration work on local community or private forest lands.
    This program will provide that authority and funding needed to
    begin coordinated work on the ground at a watershed scale.
        My own academic and professional background is in forest
    health. Healthy, actively managed forests are more resistant to
    insect attacks. The current situation in Arizona shows how
    drought and bark beetle predispose forests to fire damage.
    Integrated pest management activities need to be applied in a
    timely manner across the landscape to avoid such buildups of
    stressed trees that becomes pests' hosts and ultimately fuel
    wildfires.
        Quick response to eradicate new, invasive pests is even
    more critical. They often show up in our very heavily populated
    urban areas. Many times these pests have no natural enemies and
    can quickly build to outbreak levels making eradication
    impossible. NASF strongly supports accelerating the work on the
    emerald ash borer, sudden oak death, gypsy moth and other
    forest pests and diseases by authorizing and funding this
    legislation.
        A working laboratory for the issues we are discussing today
    was created in July 1999, as has been mentioned by the Senator
    earlier, when blow-down struck over 478,000 acres of forest
    land in the Boundary Waters' canoe area and adjacent lands of
    Northeastern Minnesota. I have provided in my testimony photos
    and maps--I know everybody has seen a lot of catastrophic
    damage in the last several years, but I have provided you some
    additional information there--and a publication that can be
    passed out on ``After the Storm,'' to give you an idea on how
    the mixed ownerships responded to that storm up in Minnesota.
        The area--I want to stress--the area is an interface of
    designated wilderness, managed forests of mixed ownership and
    private recreational holdings. This is extremely challenging to
    manage those types of interface.
        My written testimony details how the agencies produced an
    immediate triaged response to deal with health and safety
    issues in the area, but diverged on the time lines and extent
    of salvage and restoration efforts. In these efforts, non-
    Federal partners concurred that the Forest Service process has
    too many steps and is not efficient when confronting a disaster
    such as the 1999 blow-down in the Superior National Forest.
        The blow-down in Minnesota and now the fires out west
    demonstrate several key points addressed by this legislation.
    Public input process needs to remain, but be streamlined so
    science-based actions can occur on the ground in a timely
    fashion. That is the theme of your discussion today.
        Mother Nature can clearly act across the landscape, and we
    need to respond in a similar scale. We will never eliminate
    fire or pests. We can, however, act to reduce the amount and
    concentration of fuels left on a site and increase the vigor of
    remaining trees. We can do this in ways that promote
    biodiversity and leave a patchwork of trees of different ages
    and sizes on the landscape.
        We need to develop--this is my last point, and I will end
    here--we need to develop and maintain outlets for the
    byproducts of these efforts. It is critical to the economy of
    rural America that these outlets remain present and viable.
    Base industrial processing, ecotourism, energy and specialty
    products all need to be considered as a part of this forestry
    industry complex. This is doable. We have the science and the
    staff to do it. We just need the vision and long-term
    commitment to manage our forest landscapes in a sustainable
    manner across the landscape.
        Thank you very much, and I would be glad to stand for
    questions.
        [The prepared statement of Mr. Carroll can be found in the
    appendix on page 99.]
        Senator Crapo. Thank you very much, Mr. Carroll.
        Dr. Stephen.

           STATEMENT OF FREDERICK M. STEPHEN, Ph.D., INTERIM
              DEPARTMENT HEAD, DEPARTMENT OF ENTOMOLOGY,
             UNIVERSITY OF ARKANSAS, FAYETTEVILLE, ARKANSAS

        Mr. Stephen. Mr. Chairman and members of the committee, my
    name is Fred Stephen. I am University Professor and Interim
    Head of the Department of Entomology at the University of
    Arkansas. I am here today representing the Society of the
    American Foresters. I am honored by this opportunity to testify
    on the topic of forest insect infestations as they pertain to
    forest health.
        Potentially, forest health involves considering the status
    of all ecosystem components. Insects and diseases are normal
    inhabitants of forest ecosystems, but at epidemic levels can
    have serious impacts on overall condition and resilience of
    such systems.
        The SAF believes that appropriate science-informed
    silviculture treatments can be important in increasing forest
    biodiversity and health, and therefore also reduce the
    likelihood of occurrence and severity of impact of many forest
    insect outbreaks.
        Currently, throughout our country, forests in all
    ownerships are affected by unprecedented insect outbreaks and
    resulting damages. Catastrophic population levels of conifer-
    infesting bark beetles, such as southern pine beetle, western
    pine beetle, mountain pine beetle, Douglas-fir beetle and
    spruce beetle are ravaging forests in Southern and Western
    U.S., Canada, and Alaska.
        In addition, introduced species such as gypsy moth, hemlock
    woolly adelgid, and more recently, emerald ash borer are
    killing thousands of our native trees. Unhealthy forests favor
    their establishment and increase the probability of serious
    outbreaks. These outbreaks can have dramatic consequences,
    including economic and ecological loss, increased risk of
    wildfire in certain areas of the country, increased risk to
    human safety, and changes in forest structure and composition
    that may diminish aesthetic values.
        Today, I will briefly mention two examples of serious
    forest insect outbreaks that exemplify the problems we face and
    the need for a coordinated response to increase support for
    research that ultimately will result in management to create
    more healthy, resilient forests.
        As a group, bark beetles are the most significant forest
    insect pests in our country. This complex of small, ubiquitous
    insects is responsible for the death of millions of conifer
    trees annually across the forests of North America, more than
    are killed by fire and storms combined.
        Although each of these forest landscapes across the country
    is unique, these bark beetle epidemics share some common
    features. Most of the devastating outbreaks occur in stands
    that are overstocked with mature to overmature trees,
    frequently of a single species, and whose normal mechanisms of
    resistance are challenged by drought conditions and other
    factors.
        Recent damage by southern pine beetle exceeds all
    historical records. The geographic range of our current
    epidemic continues to grow and new host species are being
    infested.
        Previous RD&A programs have greatly increased our knowledge
    of this insect, but it is still inadequate to fully explain the
    causes for the epidemic or to provide acceptable management
    solutions. The duration and extent of the current outbreak
    throughout the South has generated unified concern and a call
    for an organized effort to protect the forests of our region.
        The technical expertise required to plan and to conduct a
    substantial SPB research and development program is dispersed
    among the land grant universities and a variety of Federal,
    State and private organizations. It is therefore essential that
    a representative cross-section of the stakeholder community
    participate in defining the agenda and formulating an action
    plan for multi-State research.
        Across the Ozark National Forest of Arkansas and Missouri,
    pest management specialists began to see dying trees in the
    late 1990's and identified the cause as an insect/disease
    complex called `oak decline'. The insect culprit is the red oak
    borer, an almost unknown insect species that is native to
    eastern North America. It attacks living oak trees.
        Red oak borer populations now are more than 100 times
    greater than ever before seen. The oak decline-red oak borer
    complex is the greatest threat in recent history to the oak
    component in this national forest. The dollar value at risk in
    timber value alone exceeds $1.1 billion. The direct impact on
    local economies, includes anticipated loss of 2,200 jobs in the
    logging and milling industries.
        In summary, it has been demonstrated that prudent forest
    management and stewardship can lower the risk of unacceptable
    loss of property and resource assets from insect infestations
    through various silviculture prescriptions and biological
    controls. I believe that we are facing insect outbreaks that
    may result from unhealthy forest conditions and which are
    further incited by such climatic factors as serious drought.
        It is essential that we realize the complexity and
    uniqueness of these insect epidemics as well as their
    commonality. To successfully manage such problems will require
    greater support of research by university and other scientists
    to effectively acquire knowledge on the basic causes and
    underlying reasons for these problems.
        Continued support of both Congress and this administration
    will then be necessary to extend this knowledge into
    ecologically and economically effective integrated pest
    management and forest management systems.
        Thank you.
        [The prepared statement of Mr. Stephen can be found in the
    appendix on page 112.]
        Senator Crapo. Thank you very much, Dr. Stephen.
        Mr. Nelson.

    STATEMENT OF TOM NELSON, DIRECTOR, TIMBERLANDS, SIERRA PACIFIC
                    INDUSTRIES, REDDING, CALIFORNIA

        Mr. Nelson. Good morning, Mr. Chairman. My name is Tom
    Nelson. I am the director of Forest Policy for Sierra Pacific
    Industries in Redding, California.
        My testimony today is on behalf of the American Forest and
    Paper Association, which represents forestland owners,
    manufacturers of solid wood products and producers of pulp and
    paper products.
        Our members are committed to sustainable forestry for all
    forestlands, both public and private, Eastern and Western. Our
    industry supports important environmental values, such as clean
    air, clean water and wildlife habitat, and we also support
    viable communities and the social and economic benefits from
    wood fiber that can be removed as a result of treatments to
    improve forest health.
        I am here today because our Federal lands are unhealthy.
    The fires, and insect and disease epidemics that we are seeing
    today are beyond the historical range, and our national forest
    policies have made the problems worse. Federal land managers
    are unable to actively manage our forests to address these
    problems.
        The wildfire seasons of 2000 and 2002 were among the most
    destructive fire seasons in the last half-century. The impacts
    are far-reaching: loss of lives and homes, displacement of
    communities, loss of tourism dollars, destruction of wildlife
    habitat and water sheds, and damage to timber and nontimber
    resources.
        As we sit here today, a wildlife is raging in Arizona just
    outside Tucson, as has been mentioned. It has all of the
    dangerous elements: close to communities, in difficult terrain
    and in a forest suffering from years of drought, the ravages of
    bark beetles and decades of no forest thinning or management.
    Yet there are hundreds of areas around the country with similar
    conditions and hundreds of communities and adjacent private
    landowners that consider themselves lucky that it is not them,
    not this time. We need to rely on more than luck to get us
    through this summer's fire season. We need action.
        Our forest health crisis is not simply about wildfires, as
    also has been mentioned. Insect outbreaks are also devastating
    forests around the country, such as the Daniel Boone National
    Forest in Kentucky, which experienced southern pine beetle
    outbreaks over the last several years. In this case, efforts to
    control the spread of the beetle were delayed by excessive
    paperwork and appeals, allowing the devastation to spread
    quickly. More than 100,000 acres of pine forest, which were
    home to the federally endangered red cockaded woodpecker, were
    lost to beetle damage.
        These fires, and insect and disease epidemics are merely
    symptoms of deeper, underlying problems. The fact is our
    national forests are overstocked with growth far exceeding
    current harvest levels and are at an increasingly higher risk
    of fires and insects, but there is ample evidence that well-
    designed forest management strategies can help. These
    strategies must recognize that mechanical treatments, with
    removal of trees and brush, will be an integral part of the
    solution.
        Prescribed burning alone is not an option for most of us in
    the West. No sane person would think of dropping a match in
    these forests before first reducing the levels of stocking. The
    proposals developed under the administration's Healthy Forests
    Initiative offer promise for working through the ``analysis
    paralysis'' that plagues our Federal land management agencies.
        Similarly, the National Fire Plan has made tremendous
    strides by establishing a framework for restoring ecosystem
    health in fire-adapted ecosystems. More needs to be done. The
    costs of inaction are staggering. I've attached a map showing
    the lands owned by our company and the neighboring Federal
    lands. You will note that these two ownerships, as is common
    throughout the Western United States, are intertwined and
    intermingled. Our company, and others like ours, have
    aggressively tried to reduce the risks of catastrophic
    wildfires on our private holdings for many years, largely
    through the use of thinning. However, these efforts cannot be
    effective without the cooperation of our Federal neighbors,
    since wildfires, insects and disease do not recognize property
    boundaries.
        Legislative action is needed now. The House of
    Representatives recently passed the Healthy Forests Restoration
    Act. As the Senate moves forward on developing legislation, we
    encourage you to consider the following:
        We need procedures that allow Federal land managers to
    expeditiously implement hazardous fuels reduction projects on
    Federal forests and rangelands in critical areas, including
    areas that threaten communities and areas at high risk for
    catastrophic wildfire or insect and disease infestation.
        Congress should allow agencies to make a more efficient
    approach to NEPA documentation and allow for expedited handling
    of administrative and judicial challenges. We need to reduce
    hazardous fuels, both within the Wildland Urban Interface in
    order to protect communities, as well as across landscapes
    beyond the interface to protect values such as wildlife habitat
    and water quality.
        We need an accelerated Federal Treatment Program to halt
    the spread of insect and disease outbreaks, to allow critical
    research projects to proceed without needless delays.
        It is critical to involve States and private landowners in
    our efforts to protect forest health. The creation of a
    watershed forestry assistance program would provide States and
    landowners with technical and financial support in their
    efforts to address threats to forest health.
        AF&PA looks forward to working with this committee and
    others to help develop solutions to address the growing threats
    to our Nation's forests. Thank you for the opportunity to
    testify, Mr. Chairman, and I will be happy to stay for
    questions.
        [The prepared statement of Mr. Nelson can be found in the
    appendix on page 119.]
        Senator Crapo. Thank you, Mr. Nelson.
        As we move to our next witness, Ms. Jackie McAvoy, I want
    to take an opportunity here to personally welcome you. Jackie
    is from my home State of Idaho. We have worked together on
    timber issues for years. In fact, you were in Red River or in
    Elk City when we looked at some of these problems that the
    beetles were causing there, and we talked about the fire needs.
        Jackie, welcome, and you may proceed.

    STATEMENT OF JACKIE McAVOY, COUNCIL MEMBER FOR POST FALLS CITY,
                           POST FALLS, IDAHO

        Ms. McAvoy. Good morning and thank you. I am Jackie McAvoy,
    council member for the city of Post Falls, Idaho, and board
    member of Idaho Women in Timber. I am also honored to have been
    appointed a member of the Resource Advisory Committee for the
    Panhandle National Forest, where I currently serve.
        Thank you, Mr. Chairman and members of the committee, for
    inviting me here today to testify on an issue that is
    critically important to me, to my fellow Idahoans, and to the
    people across this country who live in States with significant
    forest health and fire risk challenges. I am not a scientist or
    a forester, but I am an Idahoan who is concerned about the
    health of the forests within the boundaries of my State. In
    that capacity, I am honored to be here to express my full
    support for H.R. 1904, the Healthy Forests Restoration Act.
        Idaho, the beautiful State you and I call home, Mr.
    Chairman, is covered by over 22 million acres of forestland.
    Seventy-three percent of Idaho's timberlands are in the
    national forest system. Timber harvest activities in my State
    have declined 80 percent since 1990, resulting in extremely
    poor forest health conditions on many of Idaho's national
    forests.
        For example, national forests in Idaho are 35-percent more
    dense than other forest ownerships in the State. This increased
    density leads to increased competition for water, sunlight, and
    nutrients, making these forests more susceptible to insect and
    disease outbreaks and increased fire risk.
        Almost twice the number of trees die on national forests in
    Idaho than on any other forest ownerships. That buildup of dead
    trees increases the fuel load in the forest and, with it, the
    potential for severe wildfires. Finally, lethal potential--or
    fires that kill whole forests--has tripled on Federal lands in
    Idaho and Montana.
        Today, the focus is on Arizona. Tomorrow, we may read about
    Spokane, Washington, or Lake Tahoe, California, or Carson City,
    Nevada, or Idaho City, Idaho. The list is long. The challenge
    is huge. Lest we forget the 2002 fire season, almost 7 million
    acres burned, 1,800 homes lost, $1.97 billion to fight and 20
    firefighters dead. Things must change, and they must change
    now.
        Last month, I was here in Washington, DC, along with 25
    members of Federated Women in Timber. We visited with
    legislators, Federal agencies and others about forest-related
    issues that concern the rural forested communities in the 11
    States that have Women in Timber groups.
        During our discussions, we raised the very serious insect
    infestation and fire-risk problems that impact the health of
    our Nation's forests. At every meeting, we stressed our concern
    over the very real possibility that catastrophic fires would
    blaze across the Nation before any legislation to speed the
    thinning work that must be done to reduce the threat of insect
    outbreaks and devastating wildfires could be adopted.
        That fear has become a reality as we watch the Aspen fire
    torch more than 11,000 acres and 250 homes near Tucson,
    Arizona. I understand those figures have increased. The severe
    insect and disease problems in Arizona's dense national forests
    have provided the perfect condition for this year's first
    forest casualties and yet another sad example of a forest
    management system that is horribly broken.
        I brought with me today some douglas fir bark beetles and
    western pine beetles gathered from national forests in my
    State. I have them here, and I understand there are some more
    interesting things in my douglas fir bark, and Dr. Stephen
    pointed those out to me. These critters are responsible for
    destroying hundreds of thousands of acres of forestland in
    Idaho, as they have in other parts of the country, especially
    the Southeast and Southwest.
        I also have with me the bark samples that I just mentioned
    that showed the galleries made by these beetles. Beetles chew
    these galleries all the way around the tree, cutting off the
    tree's ability to take in water and nutrients which ultimately
    kills the trees.
        An ice storm severely damaged trees on the Idaho Panhandle
    National Forest in Northern Idaho in 1997, generating an
    explosion of these douglas fir beetles.
        Mr. Chairman, I want to thank you for making the recent
    trip to the pine beetle-infested forest near Elk City, Idaho. I
    have friends who live in that small community. They have been
    concerned for years about the health of the Nez Perce National
    Forest and the fire risk the beetle outbreak brings.
        Last year, members of Idaho Women in Timber spent one full
    day touring the forest, looking at the tremendous damage done
    by the western pine beetle. The forest was a sea of dead red
    trees. As you know, the folks who live in Elk City have only
    one way in and out of town. If a wildfire starts in their area,
    they know their lives are in danger, as well as their homes and
    businesses.
        My time is out.
        It is a fear they live with every day. They know action
    must be taken soon. I recently became acquainted with folks who
    live in the southeastern part of the United States. We have
    discussed H.R. 1904 at length. It is interesting to me that,
    though, our forests are very different, we still have the same
    concerns regarding the need for forest management. These folks
    agree that this legislation will allow the Forest Service to
    address insect problems in a timely manner. They care about
    this issue. They know that without responsible management on
    Federal lands, surrounding private lands in the south, a
    private landowner's efforts to maintain a healthy forest, one
    that provides habitat for wildlife may be meaningless.
        I am going to talk real quick, but I have to tell you about
    an issue that struck me, personally. Catastrophic fires not
    only destroy wildlife habitat, watersheds, forest soils and
    homes and property, they also create health problems for the
    communities near the fires. Let me cite a personal example.
        Last summer, on a weekend, my daughter, who lives in
    Wasilla, Alaska, was with my grandson at a soccer tournament in
    Fairbanks. She told me about the officials having to suspend
    the games because the smoke from a nearby forest fire was so
    thick the kids could not breathe. After the smoke cleared
    somewhat, they were able to continue the tournament, but my
    grandson and his teammates suffered breathing problems for some
    time after they returned home.
        I have some other things that are in my written testimony.
    I will stop and thank you, Mr. Chairman, for the opportunity to
    testify today. I would be happy to answer questions.
        [The prepared statement of Ms. McAvoy can be found in the
    appendix on page 127.]
        Senator Crapo. Thank you very much, Jackie.
        Mr. Petersen.

      STATEMENT OF MICHAEL PETERSEN, THE LANDS COUNCIL, SPOKANE,
                               WASHINGTON

        Mr. Petersen. Thank you for the opportunity to testify at
    this important hearing on the fate of our forested communities
    and our national forests. I am the director of the Lands
    Council, a conservation organization based in Spokane,
    Washington. I am also president of the National Forests
    Protection Alliance which, along with nearly 100 members of the
    House of Representatives, advocates of passage of the National
    Forest Protection and Restoration Act.
        The past week we have all read about the unfortunate loss
    of homes and property on Mount Lemon near Tucson, Arizona. The
    fact that the Aspen fire started so close to the Summerhaven
    community and not miles in the back country emphasizes a need
    to conduct fuel-reduction projects where they are needed most,
    near homes and communities.
        Last December, the Arizona Daily Star reported that
    Summerhaven wanted a quarter-mile buffer around their
    community, but the Forest Service said it did not have the
    million dollars necessary to do the work. The fact is most of
    the Forest Service budget goes to a timber sell program.
        The Summerhaven fire is powerful warning that national fire
    policy must emphasize the importance of reducing the risk of
    fires immediately around communities. We cannot fireproof our
    forests, but we can work toward fireproofing our communities.
        The Healthy Forest Initiative would log up to 20 million
    acres on Federal lands, often far away from communities at
    risk. The facts show that only 20 percent of the acres burned
    in the last 12 years were on national forests. Elk City, for
    example, is surrounded by private and State lands as a buffer
    and then here in the National Forests.
        How do we protect it? In 2001, the Lands Council received a
    Forest Service grant, and we started up a wildfire education
    program. Since then, we have visited 1,500 homes, talked to
    people face-to-face, knocked on their doors, and have written
    120 fire plans. Those plans have been implemented by our State
    Department of Resources.
        This spring, we began working in the community of Chewelah,
    Washington, in a collaborative effort, on multiple
    jurisdictions to help them write a wildfire protection plan. At
    a time when we urgently need to focus on protecting
    communities, we can't afford a proposal that spends scarce
    resources on projects far from where people live; for example,
    the Iron Honey project in North Idaho, 20 or so miles from
    towns of Coeur D'Alene and Hayden Lake, 1,400 acres propose
    near clear-cutting, and that has being called fuel-reduction
    project.
        Some will claim that these burdensome regulations prevent
    necessary work from being done, and the red tape drives up the
    cost of projects. In May 2003, a GAO report found that 95
    percent of fuel-reduction projects were ready for
    implementation within the standard 90-day review period. Those
    numbers do not support a claim of paralysis analysis.
        While the discussion of how to restore our national forests
    continues, and should be driven by science, we know how protect
    communities from fire. Fire physicist, Jack Cohen, he is a U.S.
    Forest Service employee out of Missoula, Montana, has done
    considerable research and found that effective wildfire
    protection must focus on the homes and its immediate
    surroundings and not on wildlands. I will reemphasize that
    issue.
        Eighty-five percent of the lands within this community
    protection zone, which was about a half-mile, are on non-
    Federal lands. I believe we should take the following steps:
        Concentrate our fuel-reduction projects in those community
    areas, which is about 200 feet around structures and a little
    over a quarter-mile around the communities themselves. That
    would help protect the communities, as well as firefighters,
    and direct 85 percent of the National Fire Plan's hazardous
    fuel budget to those areas.
        There are some good projects in our national forests that
    we support and many people support: The Dixie Fuel Break, for
    example, which is a town just south of Elk City. The Dixie Fuel
    Break project was a collaborative project. The local
    environmental group was totally behind it. It has been
    implemented, and it is now protecting that town in case a
    wildfire should come in from the surrounding forest.
        In contract, H.R. 1904 takes us outside of the communities,
    and it also takes us outside of current legislation, such as
    the appeals legislation and the National Environmental Policy
    Act. It basically would allow categorical exclusion of many,
    many projects which have significant impacts, and it would not
    allow for proper scientific analysis or public participation.
    It would restrict the rights of Americans to take these issues
    into court and would authorize an unlimited number of projects,
    up to 1,000 acres, for all lands that are claimed at risk from
    insect infestations.
        H.R. 1904 fails to provide any extra financial assistance
    to fire protection around communities. It diverts attention to
    the back country. Yes, we do have national forest problems. We
    have a system that has been damaged by past management, road
    building, logging and fire suppression, but the cure is not
    more of the same. The cure is to take the forest service out of
    the logging business and let science and common sense guide the
    way to restoring our national treasures. We know how to protect
    communities that are at risk from wildfire, and I think we
    should get moving on it before we have another Summerhaven.
        Thank you very much.
        [The prepared statement of Mr. Petersen can be found in the
    appendix on page 134.]
        Senator Crapo. Thank you very much, Mr. Petersen.
        I am going to yield my time in the first round to Senator
    Coleman, from Minnesota. He is here and, Senator Coleman, you
    can feel welcome to make any statement you may want to make, as
    well as introduce any friend you may have here from Minnesota,
    and ask questions, if you would like.
        Senator Coleman. Thank you, Senator Crapo. I am very
    appreciative.
        I have a statement that, without objection, I would like to
    have entered into the record.
        Senator Crapo. Without objection.
        [The prepared statement of Mr. Coleman can be found in the
    appendix on page 81.]
        Senator Coleman. Just to make an observation. Mike Carroll
    is here, though representing a national organization, hailing
    from Minnesota. He talked about the July 14th, 1999, blow-down
    that we had, straight-line winds I believe in excess of 90
    miles an hour, severe downing trees, causing severe flooding in
    more than 600 square miles of the Superior National Forest.
        If you look in the document that he submitted, there is a
    note in there that says, ``The 1999 blow-down has been compared
    to other large-scale events, such as the eruption of Mount St.
    Helens and the fires of Yellowstone.''
        Again, he noted that we are a working laboratory. The
    reality is that I think we were very fortunate that we did not
    have the kind of fires that we have seen around the rest of the
    country. We have the Boundary Waters, the BWCA area there. It
    is a pristine area. There is no motorized traffic. It is really
    preserving the forests the way they were, and that blow-down is
    there, and we are using techniques to deal with that.
        Then the Superior Forest, we are using a series of
    techniques. We have removed most of the heavy fuel loads at
    this time.
        It is important, as we look to the future, that we need to
    have, and again I quote Mr. Carroll, ``A forest management
    system in which you maintain the public process, in which you
    streamline the process, particularly to be able to act
    expeditiously where risk occurs.''
        Then, finally, most importantly what I hear from every
    witness is that we have to have science-based decisions. That
    is absolutely critical.
        We have a path. This legislation provides us with that
    opportunity. It is why I am supported.
        If I can, Mr. Carroll, the question I would ask you is to
    us here, and to my colleagues, by the way, on both sides of the
    aisle, who I think will recognize the importance of science-
    based decisions bringing common sense to the table, the reality
    in our State, there are great battles over the way we work
    this, as I presume in many other States; that we are talking
    about doing things that would improve the process for clean
    water. Clean water begins with healthy forests, and improves
    the measure of public safety. It is not clear that the broader
    public gets that.
        How do we do, particularly recognizing the importance of
    the public process, public participation in this process, how
    do we do a better job of educating the broader public, not just
    those who live around these areas, who depend upon these areas
    for their economic future, how do we reach out to that larger
    community that has a great interest in what happens here and is
    not always focused on the same sound science solutions that
    many of us here believe in?
        Mr. Carroll. That is an excellent question, Senator. As you
    know, in the State of Minnesota, we have a Minnesota Forest
    Resources Council group that is appointed, mandated by the
    legislature, appointed by the Governor. It is a broad-based
    group. It has environmental coalitions. It has industry
    representatives and then people interested in the forests from
    public trust agencies, hunting and fishing groups, the agencies
    themselves are there, the tribes are there, interest groups are
    there at the table.
        The focus is on where do we agree on the value of the
    forest? The focus is clearly on education. The focus is on the
    development of voluntary guidelines and outreach to groups so
    that they understand the value of forest management and the
    value of some of the preservations values that we treasure so
    much in Minnesota, also.
        We develop processes where there is public input. The
    public does come together around the table. They identify the
    needs for old growth, for wilderness. They identify the needs
    also for industry retention in the State, and we work together
    to try to balance that.
        We also have a very aggressive education process in the
    State, where we work with our teachers, we work with our
    constituent groups, and we outreach those people so that they
    do understand those very issues. We also tap the very strong
    land grant university we have, and I think that is an element
    we need. All States need to reinforce the value of the land
    grant universities for outreach and extension service related
    to management of the forest.
        Senator Coleman. Thank you very much, Mr. Carroll.
        If I may, Mr. Nelson, from an industry perspective, do you
    see an industry obligation in terms of more proactively getting
    out the message of the importance of sound science and the
    positive environmental impacts of good forest management?
        Mr. Nelson. Yes, we do, and we have been behind the eight
    ball on this for a long time. I agree with you. We have taken a
    number of steps, through the American Forest and Paper
    Association, and other groups like that, to try to get the word
    out. Frankly, the situation we are in right now is a very good
    topic to begin to get people to have a rudimentary
    understanding of some of the forest management that we have
    been advocating for years. We are trying to do it, yes.
        Senator Coleman. Thank you.
        Thank you, Mr. Chairman, for extending me this courtesy.
        Senator Crapo. Chairman Cochran.
        The Chairman. Mr. Chairman, I notice we have been joined by
    our good friend from Georgia. I would be happy to yield to him
    for any comments or questions that he might have.
        Senator Crapo. Thank you.
        Senator Miller.

       STATEMENT OF HON. ZELL MILLER, A U.S. SENATOR FROM GEORGIA

        Senator Miller. I do not think I have any questions, Mr.
    Chairman, but thank you. I just want to say that here we are in
    this situation, with the House having passed this bill, and
    currently, in Georgia----
        Senator Crapo. Senator, could you push the button on that
    mike.
        Senator Miller. I was saying that this is a very, very
    timely hearing, and I hope that it will help expedite doing
    something in the immediate future because currently in Georgia
    right now, the southern pine beetle has reached epidemic status
    in three-fourths of the Georgia counties, and I look forward to
    working with this committee, and with the Department of
    Interior, and with the Department of Agriculture to get
    something done as soon as we possibly can. Time is critical.
        It is like that guy that was up in that tree that Jerry
    Clower tells about. Somebody needs to have some relief, and
    that is what we need right now in Georgia, especially with the
    southern pine beetle.
        Thank you.
        Senator Crapo. Thank you very much, Senator Mill.
        Mr. Chairman.
        The Chairman. Well, I have a couple of questions for this
    panel. Dr. Stephen, you mentioned the research title in this
    bill, and I was wondering about your reaction to it, as to
    whether or not it is sufficient to help us meet the needs for
    adequate research that will develop better ways, more effective
    ways of dealing with insect monitoring and control. What is
    your reaction to the bill's provisions on that issue?
        Mr. Stephen. Well, it is a very good start, and it is an
    excellent way to begin that process. I guess I would like to
    emphasize that my colleagues in the university community that
    have to compete for grant funds to support their research find
    too often that money is there during outbreak conditions, but
    the ability to conduct intelligent research programs that gets
    at underlying causes needs to continue beyond those outbreak
    conditions.
        We really need to be able to understand what happens, why
    the outbreaks develop. We need to look at fundamental causes
    that must be examined not only during outbreaks, but also
    during endemic periods. Too often funding is very focused, with
    short-term direction during a problem or as a problem is
    crashing, rather than providing the oppurtunity for long-term
    collaborative work.
        The Chairman. Ms. McAvoy, I took a trip one time down the
    middle fork of the Salmon River in your State, and I recall
    passing through an area where a forest fire had burned out of
    control, and it looked to me like it had just occurred, but I
    was told that it had happened 8 years earlier. To me, in my
    experience in Mississippi growing up, we recovered down there a
    lot more quickly from the ravages of a forest fire than you do
    out West.
        Is this something of special interest and concern for the
    people in your State? I guess it just emphasizes it is almost a
    permanent event. You do not recover very quickly from a forest
    fire out there in Idaho, do you?
        Ms. McAvoy. No, we do not. Our fires burn very hot, and
    then the soil can be damaged, as you might suspect, and it does
    take a while to regenerate after a fire. I want to tell you,
    too, that last week I attended an Association of Idaho City's
    conference, and we discussed a lot things, but one of the
    things that we did during that conference was vote unanimously
    to support H.R. 1904.
        Some of our cities in Idaho have been tremendously impacted
    by forest fires in their areas. I heard one council member talk
    about a fire that burned in his area, and their city was filled
    with smoke for 51 days. It created tremendous health problems.
    Those forests will take a long time to regenerate.
        Thank you.
        The Chairman. Mr. Nelson, you mentioned in your statement
    that we have a forest health crisis. Do you think the bill the
    House has passed is strong enough to help us recover from this
    crisis? If you could strengthen the bill in any way, how would
    you recommend our committee consider improving the bill?
        Mr. Nelson. Well, we need to look at this in its real
    context; that the bill itself that is coming over to the Senate
    now is the first step in solving a rather large crisis. It has
    been years in the making to get where we are now, and we cannot
    expect to solve it in a single year and probably not in 5
    years. The bill is a great first step, but the idea that, as
    some of our detractors say, that you can go out and if you get
    in the urban interface, and if you have the people pick up a
    few sticks between their house and their mailbox, it is all
    going to go away. That is nonsense.
        It is a huge problem, and it covers a vast area. There are
    72 million acres that are at high risk to fire and another 26
    million to insect and disease. We cannot do that simply by 1
    year with this bill, where we are going to treat maybe 20
    million acres. It is going to take while, but this is a great
    first step.
        The Chairman. Thank you. Thank you all, members of this
    panel, for your contribution to our hearing.
        Thank you.
        Senator Crapo. Thank you.
        Senator Lincoln.
        Senator Lincoln. Thank you, Mr. Chairman, and since
    Chairman Cochran's State is right across the river from me, he
    has asked many of the questions I wanted to ask, so I am very
    pleased that he has brought them up. I would like to expand on
    just couple of them.
        I would also again like to thank Dr. Stephen for being here
    and for his expertise. It has been great to have the incredible
    expertise and the extensive studies that he has provided us in
    Arkansas to better understand many of these issues, and that is
    why I seem to harp on the same thing over and over, not only my
    own experience in our forests in Arkansas, and having seen the
    devastation of the insect epidemic and infestation that we have
    had, but certainly the knowledge that has been brought forth
    from the university in much of their studies.
        I guess, it seems that in the reports of the disease and
    the insect damage we have seen, that there has been a
    significant increase really over the last 10 years. I guess if
    there is anything that maybe any of you all might attribute
    those increases, those most recent increases that we have seen
    or the causes of these insect infestations over the last 10
    years, is there something specific we can look to?
        Mr. Stephen. Well, I can at least give my opinions on some
    of those things. Interestingly enough, although not a southern
    problem, spruce beetle in Alaska, and through parts of the
    Western United States has become an epidemic crisis situation.
    Canada is experiencing the worst bark beetle outbreaks in their
    history. It is believed, and there is quite good scientific
    evidence I think to support this, that the much milder winters
    that we have had in recent years have changed the life cycle of
    these insects sufficiently, so that where they took 2 years to
    develop previously, a significant proportion of them are now
    developing within 1 year. You can realize how much of a greater
    threat they would be when they can reproduce so much more
    quickly.
        In terms of our own forest situation, I think in the Ozark
    Mountains, for example, the combined factors of increased age,
    high stand densities, (perhaps 10 times higher than we should
    have in some places), associated with drought conditions and
    other factors create a susceptible resource that this oak
    decline complex associated with red oak borer would definitely
    affect.
        Mr. Nelson. If I might offer an answer as well, Senator. If
    you go back 10 years and look at the decline in actual
    management of the national forest system lands, you will be on
    a downward trend, perhaps 75- to 80-percent reduction in the
    area managed for this type of thing. That crisscrosses the
    upward trend that you are going to find with the insect and
    disease, as well as the fire epidemics.
        It is basically as simple as when you are not allowed, when
    you are impeded from managing these national forests, you can
    expect to get the type of situation we have today.
        Mr. Petersen. If I could add something, Senator. Our Forest
    Service has been extremely effective at fire suppression. At
    the turn of the century, it was very common to have fires 20
    million acres or more burn for a year across the country, and
    now we see a very big year at 7 million acres.
        Well, that fire suppression is having an impact. In some of
    the really dry forests there is a real ingrowth of small trees.
    That, combined with stress, possibly global warming, certainly
    the pollution in the Eastern half of the country, these things
    stress trees and create more insects.
        We also have alien species, and not from outer space, but
    coming in from across the ocean. Those are, as we all know,
    destroyed the chestnuts, the elms. These kinds of things add to
    the stress, and for certain species really eliminate some of
    the problems or eliminate some of the species.
        Where I am at, and in North Idaho and Eastern Washington,
    we have cyclical, we have the doug fir bark deal, which just
    raged for a couple of years and now it dies out. It is a
    natural part of the landscape. It could be that some of the
    ``droughty'' period we are going through exacerbates that.
        Senator Lincoln. Thank you. Focusing on H.R. 1904, some of
    the main focus is on dealing with wildfires, and I have
    expressed some concern about that, in terms of the needs that
    there might be to extend beyond wildfires to issues like insect
    infestation and endangered species beyond what is in the
    research title of Title IV. I want to compliment, again, the
    Chairman. Chairman Crapo and his staff have been fabulous in
    working with us and trying to look at ways that we can improve
    on that, so that we do look at the entire Nation.
        I just wanted to ask you all once again what do you think,
    in terms of ways that we can improve on that title, in terms of
    dealing with insect infestation and what are some of the new
    tools that might be out there for forest managers that they may
    need that we are not focusing on, if there are any, that you
    could suggest here today or certainly if you have ideas, you
    could work with us later on?
        Mr. Nelson. It is not really a new tool in the West, but
    the biomass provisions that are in 1904 are certainly welcome
    provisions. In California, for example, we have a very large
    infrastructure of biomass. The company I work for, we produce
    100 megawatts of power. About half of that goes back to run our
    sawmills, the other half is sold onto the grid. As we all know,
    in California energy is a big deal these days.
        That is one of the more innovative things that is built
    into the bill already. A lot of the material that needs to be
    removed to reduce this risk of fire or to insect infestation is
    not merchantable in the form of lumber or other traditional
    forest products, but it is marketable to be burned up and
    generated for power. Throughout the West, we have one leg up
    because we have that infrastructure in place in a lot of ways.
    That is a newer type of thing that is already established in a
    lot of areas.
        Mr. Carroll. Senator, I would like to add that, again, it
    is not really new technology, but it is application for field
    managers and decisionmakers, policymakers like city councils
    and those types of things, is the geographic information
    systems technology that we now have, with the ability to
    remotely sense, and then actually register on the ground, where
    certain conditions in the forest are, and then use ground-
    verified modeling information on fuels, and drought, and those
    types of things. We can actually put together a 3-D visual of
    what a landscape or a watershed will look like. You have
    probably seen simulations of those types of things.
        We can use those tools and get the right people around the
    table, the environmental concern, the industry concern, and
    even the community planners and zoning people, and say, Look,
    given this situation, and under the Fire Wise program that is
    supported in the National Fire Plan, some of this modeling is
    being done. We can sit down and have city planners visualize
    everything from an ordnance on an aluminum gutter versus a wood
    gutter--that simple thing versus, OK, I am up hill from this
    fire situation, what is there? What is the age? What is the
    fuel loading?
        People can sit down, it equates, seriously, I have seen
    some city councils really like it because it is almost like a
    video game. You can go ahead and sit down and say, OK, what if,
    and those type--and we need to do that in a way where people
    trust the information that is in there and then can turn around
    and visually see some of the impacts of their decisions on
    these landscapes and the interface with their community and the
    fire.
        That is something, the research that is there, some of the
    indications to try to upgrade some of the stress monitoring in
    our inventory data. The forest inventory analysis data is
    critical. It now has annual updates that is being done
    nationwide now. We also need to add to that the remotely sense
    data that we can use for current stress indicators, and we can
    apply some of that technology. This title will help us do that.
        Mr. Nelson. Senator, could I add to my answer I gave
    before, too? I just want to make sure that you understand that
    we have probably got all of the tools that we need. We have
    probably got everything we need, through 1904, to get started.
    A lot of these things will come as we proceed to tackle the big
    problem, but to start out, I just want to make sure that
    everyone understands there is a sense of urgency here. We know
    what to do. We have the people to do it. We need some help with
    1904 coming out of this house over here.
        In essence, we do not need something else to do it. We just
    need to do it, and it needs to go forward rather quickly.
        Senator Lincoln. Dr. Stephen.
        Mr. Stephen. Yes. Thank you.
        That may be true in terms of fire. In terms of some of the
    insect problems that we face, I do not think we do understand
    the situation fully. A two-part approach of underlying
    fundamental research has to be conducted, so we understand the
    causes of some of these problems, and then that has to be taken
    into an implementation phase on the ground.
        For example, with red oak borer, we have a native insect
    species that has never before been a problem anywhere in the
    United States. We have oak decline events that occur throughout
    the Eastern United States. They have occurred since the early
    1900's or even earlier. Yet, in none of those events has red
    oak borer been a problem. This is virtually a new situation. It
    does not occur anywhere else. We do not know why.
        We need that research base to be able to understand these
    causes and then take that research and extend it into on-the-
    ground management. I also would support what Mike said about
    the GIS-based technology.
        We certainly are making use of that technology. We are
    doing our best to develop predictive models that incorporate
    new knowledge on red oak borer which would tell forest
    landowners, almost on a real-time basis, what kind of hazard
    they face and some kind of prediction as to what they might
    expect on their own lands. We anticipate that would be
    something that will be available on-line, for example.
        Senator Lincoln. Thank you, Mr. Chairman.
        Senator Crapo. Thank you very much, Senator Lincoln.
        As you may have noticed, the bells have gone off, and we
    have another vote underway. What we are going to do is try to--
    I am going to go through my questioning, and then we will hope
    to get through Senator Talent's questions as quickly as we can
    before we have to go vote. If we do that, we will probably wrap
    up this panel and then proceed to the next panel immediately
    following this vote.
        Ms. McAvoy, I wanted to ask my primary questions of you. I
    understand you brought some bark yourself and also a bottle of
    beetles.
        How many beetles are in that bottle?
        Ms. McAvoy. I do a program in the classroom called Talk
    About Trees, and the student who comes closest to guessing how
    many beetles are in this bottle gets a prize. I want you to
    guess how many beetles you think are in this.
        Senator Crapo. Somebody told me a couple hours ago, but I
    forgot. It is over a thousand, I know that.
        Ms. McAvoy. Over a thousands. There are 2,170 douglas fir
    bark beetles in this baby food jar, and that is what caused the
    damage in this douglas fir tree.
        Senator Crapo. That is a very similar kind of thing to the
    example that I brought from the pine beetle that we are doing.
        Ms. McAvoy. I have a pine beetle here.
        Senator Crapo. You have a pine beetle there too as well.
        Ms. McAvoy. I knew you would have the bark.
        Senator Crapo. Well, the question I have for you is, as you
    have heard in the testimony here, there is a lot more at stake
    than simply fire here, and the insect damage and the other
    concerns are also of concern. I just want to ask you if you
    agree that we need to be more broadly focused in our
    legislation than simply on fire risk.
        Ms. McAvoy. Oh, absolutely. We have, in Kootenai County,
    where I live, we are doing, under the National Plan is called
    Fire Smart. We are doing a great job thinning the weeds and the
    trees and things around the homes, but if we get a hot fire in
    my county, that is going to be worthless. It truly is going to
    be worthless. We need to treat the whole forest, the entire
    landscape.
        Senator Crapo. Does the degradation to the water quality
    and the wildlife habitat have an impact in communities beyond
    just the timber industry?
        Ms. McAvoy. Oh, absolutely. Most of our cities in Idaho get
    their water locally and have a tremendous impact on the water
    systems in a lot of our small towns.
        Senator Crapo. Thank you very much.
        Mr. Peterson, you indicated in your testimony, you said, if
    I understand it correctly, that you thought we ought to get the
    Forest Service out of the logging business and let science
    guide our decisions with regard to management. I wanted to
    inquire with you. It is my understanding that the Lands Council
    does not support any logging on our national forests. Am I
    correct in that?
        Mr. Peterson. No. What the Lands Council, as well as the
    National Forest Protection Alliance supports is an end to the
    Timber Sale Program because we believe it creates these
    perverse incentives to take the larger trees, the old growth,
    and it does not create an incentive to remove the small brush,
    the saplings, the things that really need to be removed in fuel
    reduction.
        Senator Crapo. You would support thinning but not logging
    in that context.
        Mr. Peterson. That is correct.
        Senator Crapo. I guess that answers the rest of my question
    because I am under the impression that proper management of our
    forests would include not just fires in appropriate
    circumstances, but also proper thinning and other management of
    the forest. I personally believe that we can have healthy,
    strong, vibrant forests for ourselves and our posterity in
    perpetuity, and still have a natural resource based economy
    that allows for logging and timber activity. Would you agree
    with that?
        Mr. Peterson. Right now we get about 2 or 3 percent of our
    wood products off the national forest, and so it is not really
    a significant supply of wood products into America society. Our
    national forest have a much higher purpose, to provide clean
    watersheds, clean air, wildlife, recreation, that sort of
    thing. The question I think you are getting at is do we need to
    go in and thin our forests? Is there another way?
        A couple of years ago we got a research, a blind study in
    exchange for dropping a timber sale appeal in the Wenatchee
    National Forest. This is a very dry forest, Ponderosa pine, and
    the scientists there said we could do this without any
    thinning, without any logging. We could do it with prescribed
    fire. Now, prescribed fire is much less expensive to treat
    forests. If we want to get back to natural processes, we could
    use prescribed fire at a much more economical way. Logging
    program, the timber sale program always loses money, and I do
    not think we can afford to do that if we are going to also
    protect our communities.
        Senator Crapo. I take your answer to mean that you would
    not support logging in terms of an economic activity in our
    national forests?
        Mr. Peterson. No. I believe there could be some basis for
    community forestry, firewood removal, that sort of thing, but
    as a commercial timber sale program, no, we cannot support
    that.
        Senator Crapo. I see my time is running out and we are
    running under a tight timeframe here, so I will restrict any
    furthers questions at this point and move to Senator Talent
    from Missouri.
        Senator Talent. I thank you, Mr. Chairman, and I want to
    thank the committee and Chairman Cochran for holding this
    hearing, and preparing to move this legislation, which I just
    think is so important on a lot of grounds. A lot of people
    think of the forest exclusively in terms of the great west. In
    Missouri we have forests in the Ozarks, the Mark Twain National
    Forest, about 14 million acres of national forest, and we have
    lost 600 firms in forestry and about 5,000 jobs in forestry in
    the last few years, and I just want to say, Mr. Chairman, that
    I agree totally with you, that not only is the preservation of
    the forest consistent with their use in a prudent and careful
    way for logging, but two are mutually supportive. We have to
    have a strong economy to have a strong environment. I just do
    not think we can have one without the other.
        I know we are in a hurry. Let me just ask one question, and
    I guess I will direct it at Dr. Stephen. We have a huge red
    borer problem also in Missouri. The bill limits the acreage in
    which we are going to be doing these intensive pilot programs
    in silviculture to 250,000 acres, and we have about 300,000
    acres in Missouri alone affected. I know Arkansas does as well.
    Is that cap too low? I know these are pilot programs that we
    are then going to apply more broadly, but I am thinking that
    that cap is just not broad enough to try this everywhere where
    we should.
        Mr. Stephen. I guess I have a little bit of difficulty
    being able to discuss that part of the bill. From a biological
    perspective I could say that given the extent of the
    infestation, it is not a sufficiently large area. Until we
    understand more of what would be the most central and important
    management tools that we would use, I would think that a
    smaller area would work fine, however. Ultimately, in terms of
    being able to extend our completed research to mitigate this
    problem, we would need certainly a larger area. In the initial
    stages I think that the smaller cap would probably work.
        Senator Talent. Maybe the thing to do, Mr. Chairman, would
    be to not put so low a cap, but make clear that it was
    discretionary and our expectation would be initially maybe they
    would not go up to the extent of the cap that we allowed, but
    that they could later on. Because I am just concerned at some
    point we are going to bump into that cap and then we are going
    to have a statue saying you cannot go any higher, even if you
    believe you need to as a matter of management.
        Thank you, Mr. Chairman. I know we are under a tight
    timeframe.
        Senator Crapo. Thank you very much, Senator Talent, and I
    appreciate you paying attention to the clock. We are about 90
    seconds away from the end of this vote, although we think they
    may hold it open for us until we get there.
        There are a lot more questions that I had, and I know that
    other Senators would like to have asked of this panel. We
    always run into this problem as we are trying to get through
    hearings. Let me say to this panel, and frankly, to the
    previous panel and the following panel, that if we do not get
    through all of the question, and in this case we have not, in
    my particular case, we would like to have the opportunity to
    submit some written questions to you and have you respond
    further in writing.
        We would like to thank you all for coming today. We are
    going to recess the hearing at this point. I understand we only
    have one vote, so it should not take too long before we get
    back, get started with the fourth and final panel, and I just
    thank everybody for your patience, and we will recess.
        Senator Talent. Mr. Chairman, I have an opening statement I
    would like to put in the record.
        Senator Crapo. Without objection.
        [The prepared statement of Senator Talent can be found in
    the appendix on page 90.]
        [Recess.]
        Senator Crapo. First of all, let me apologize. We thought
    it was one vote. It ended up being three, so we appreciate
    again your patience. Senator Kyl, who was to provide a
    statement this morning when we began the hearing, was
    interrupted then and has now been able to arrange his schedule
    to be with us. Before we begin the next panel, we are going to
    turn to Senator Kyl from Arizona and allow you to make the
    statement that you would have made this morning had you been
    able to get here.

         STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM ARIZONA

        Senator Kyl. Thank you very much, Mr. Chairman. First let
    me apologize to everyone who has waited patiently to testify.
    We may seem very disorganized to you all with interrupting
    votes and Senators coming and out and talking, when the whole
    purpose is to hear from you all as to what you think, but being
    from the State that lost forests equal to the size of the State
    of Rhode Island last year and now beginning to have the same
    kind of a year this year, I wanted to make just a couple of
    comments. One will relate to what is happening in my State and
    why we have to get this legislation moved forward, follow the
    House's lead and adopt this legislation quickly. Then second,
    relates just to just a couple of provisions of the bill and how
    it would help.
        The State of Arizona right now has several fires burning,
    one of which has been noted on television. It is in the Santa
    Catalina Mountains just north of Tucson. It is not 25 miles
    north, it is right on the border of the city of Tucson, but it
    takes you about an hour to wind up to 9,000 feet which is where
    the fire is burning. There was a little community up there
    called Summerhaven, and virtually, not quite all, but virtually
    the entire community has been burned down. It is where my wife
    and I met when we were going to college. We used to drive up to
    the top of Mount Lemmon, and it is just one of the most
    beautiful places in the world. It is incredibly cool in the
    summer, despite the heat in Arizona. It is over 9,000 feet in
    elevation, beautiful big ponderosa pine trees. What is
    basically happening is that the fire is out of control because
    it started in a canyon in the lower elevations, and it just
    acted like a chimney, and it rushed right up over the top of
    Summerhaven and then spread out over the rest of the mountain.
        We do not know the lessons yet from that fire, but it is
    probable that the small amount of thinning that had been done
    around some of the cabins was not nearly enough, well, it is
    evident it was not enough to prevent the fire from totally
    inundating the community. One of the lessons we should learn is
    that while everybody wants to protect our communities and
    summer homes with wildland urban interface treatments, we have
    to be careful that we do not fall into the trap of thinking we
    have done the job when we do that. Indeed, they can be a lot
    more expensive and sometimes they do not work. We learned that
    in the Rodeo Chediski fire last year. The fire can burn so
    intensely, and you get these huge columns of hot air carrying
    ash up into the air, and when they get up to 12,000, 13,000,
    14,000 feet they cool off, collapse, that hot column of air
    collapses, and spreads out over miles of country, these embers,
    so that they go right through fire lines and right through
    bricks and around communities and so on.
        Let me make one final point on that. I believe in
    protecting all of our forests, and that means the areas deep in
    the forest where the endangered species live and where a lot of
    the other values are that we want to protect, and I think some
    use the wildland interface thinning as an excuse. They then
    say: we have done what needs to be done and we do not want to
    go more deeply into the forest, and the reason is because you
    have to treat a lot more acres of forest by doing that. Of
    course, that takes commercial contractors who will do it, and
    somebody might just make a little bit of money going in and
    cutting down some trees, never mind that the whole purpose of
    it is to restore the forest to a healthy condition. We should
    not fall into the trap of limiting the legislation to wildland
    urban interface, although we all agree that should be done.
        That is the first point, Mr. Chairman.
        The second point, just with regard to what this can do as
    it relates to the situation in Arizona. There have been so many
    different projects held up by appeals, and one of the good
    things about this legislation is how it would relate to that.
    We did a little checking here and environmental assessment can
    take up to 6 months and 40 to $50,000 to complete,
    environmental impact statement up to 2 years, as much as
    $100,000, and of course, this legislation allows discretion to
    be given to proposed agency action which would lessen that time
    lag and get these projects implemented a little bit more
    quickly. The same thing, once the final agency action occurs,
    then challenges to these projects have to be filed more
    quickly. A court can review injunctions that are sought, and
    you can reach a conclusion to that litigation process a lot
    quicker under the legislation than would otherwise be the case
    too.
        For those who say that appeals are not the problem, I would
    just note that in the last 2 years the Forest Service reported
    issuing 305 decisions associated with environmental impact
    statements or assessments, and of the three different
    categories, 62 percent were appealed in one category, 36 in
    another, and 72 percent were appealed in the third category.
        Mr. Chairman, these appeals are a problem, and anybody who
    says they are not, simply is not paying attention to the facts.
    This legislation would go a long way toward relieving that
    problem while not touching one comma of any of our
    environmental laws. We can protect the environment. We can
    restore our forest to a healthy condition. We can reduce the
    danger of fire. We can accomplish a lot of good for this
    country if we can quickly act to pass this legislation, and I
    thank you very much for holding the hearing and for your
    interest in the subject.
        [The prepared statement of Senator Kyl can be found in the
    appendix on page 87.]
        Senator Crapo. Thank you very much, Senator Kyl, and I
    realize that you have had to reorganize your schedule to make
    it here, and we appreciate you doing that to provide us your
    insight and your support for the efforts we are undertaking
    here.
        Senator Kyl. Thank you.
        Senator Crapo. Before we begin with our fourth panel, I
    have been advised that Senator Harkin, who also has been trying
    to make it here, but it does not appear that he will, wishes to
    submit his testimony to the record, and without objection that
    will be done. In fact, without objection, any Senator who has
    not been able to make it here today will be given the
    opportunity to submit their testimony for the record.
        [The prepared statement of Senator Harkin can be found in
    the appendix on page 74.]
        Senator Crapo. With that, let us proceed to our final
    panel. Gentlemen, thank you for your patience today. I
    appreciate you showing the patience you have throughout the day
    for us in terms of the interruptions that we face here.
        Our first panelist is Dr. Norman Christensen of the
    Nicholas School of the Environment and Earth Sciences at Duke
    University. Dr. Christensen, welcome. Dr. Hal Salwasser, Dean
    of the College of Forestry at the Department of Forest
    Resources at Oregon State University. Third, Professor Donald
    Kochan, Visiting Assistant Professor of Law at George Mason
    University. Professor Patrick Parenteau, Director of
    Environmental Law Clinic at Vermont Law School.
        Again, we welcome all of you, and we are still going to
    operate by the clock, and with that, we will start with you,
    Dr. Christensen.

      STATEMENT OF NORMAN L. CHRISTENSEN, JR., FORMER DEAN OF THE
      NICHOLAS SCHOOL OF THE ENVIRONMENT AND EARTH SCIENCES, DUKE
                   UNIVERSITY, DURHAM, NORTH CAROLINA

        Mr. Christensen. Thank you, Mr. Chairman. I am Norm
    Christensen, professor of ecology and former dean of the
    Nicholas School of the Environment and Earth Sciences at Duke
    University.
        I would like to begin by saying that many, though not all,
    western forests are in an unhealthy state with respect to
    flammable fuels and the risk of catastrophic fires. The
    scientific community is in agreement that action is indeed
    warranted and necessary in particular regions and forest types.
    I therefore support the intent of H.R. 1904 to protect
    communities, watersheds and at-risk lands from catastrophic
    fires, but I do feel the bill can and should be improved in
    five specific ways.
        First, much forested land is included in this bill for
    hazardous fuel reduction that is not in an unhealthy state
    relative to fire risk. To ensure that limited resources are
    directed to areas of greatest need, I think the legislation can
    and should be more specific about which forests have been
    altered by fire suppression and past land use. The greatest
    departure from historical conditions occurred in forests which
    have natural fire regimes that are typified by high and mixed
    frequencies, less than 35 to over 100 years. There is general
    agreement that fuel reduction by prescribed fire or mechanical
    thinning is needed in many of these forests. However, many
    western forests classified in this bill as condition class 2 or
    3, including an array of hemlock and fir types, lodgepole pine
    and so forth in the West, naturally experience fire at very
    long intervals and are not in need of restoration or remedial
    action. Indeed, actions in these forests will likely have
    contrary consequences.
        My second point: this bill provides virtually no guidelines
    for defining ``hazardous fuel reduction.'' Although one-size-
    fits-all prescriptions are not desirable, the focus must be on
    reducing those fuels most important to ignition and spread of
    wildfire. They are in order of importance, ground fuels and
    woody debris, ladder fuels that carry fires into the canopy,
    and smaller trees where densities are judged to be abnormally
    high. Where possible, prescribed fire is preferred economically
    and ecologically to mechanical thinning. Large old trees should
    be retained because they are resistant to fire, because they
    maintain favorable moisture conditions on the forest floor,
    provide critical habitat and maintain key ecosystem functions.
        Third: H.R. 1904 can and should be clearer regarding
    priorities for hazardous fuel reductions. Highest priority
    should be given to wildland urban interface areas where forest
    conditions present the greatest risk to human life and
    property, and the threats to ecological processes of
    restoration are lowest. That is not to say that we should not
    be doing things in other areas. However, restoration activities
    outside so-called community protection zones are a lower
    priority and should be undertaken in a deliberate fashion based
    on a landscape understanding of fire spread and its ecological
    consequences.
        Fourth: H.R. 1904 can and should be much clearer about
    desired outcomes. Forest management is at its core change
    management. Hazardous fuel reduction cannot be about producing
    fireproof forests. That is simply not possible. Rather, our
    goal should be to produce or to restore conditions that will
    produce acceptable patterns of future change, conditions under
    which we can prescribe and manage the fires we want and
    extinguish effectively those we do not. Reference conditions
    for fuel restoration should be based on our understanding of
    natural patterns of fire behavior and likely patterns of forest
    change following treatments.
        Finally, the limited support for monitoring and research in
    H.R. 1904 and the proposed changes in NEPA rules, I believe
    undermine the opportunity to bring the best science to this
    important challenge. Wherever we act we must do so
    understanding that we have much to learn. We must take
    advantage of this opportunity to create a program of continuous
    learning and improvement, that is, adaptive management. Healthy
    forest legislation should require and adequately fund an
    integrated program of monitoring, research and adaptive
    management. Where human life and property are at risk, the
    streamlined NEPA procedures proposed in H.R. 1904 are
    appropriate. The need to act may take precedence over
    deliberative processes in this situation. Away from the most
    urgent circumstances, abbreviated NEPA procedures are neither
    necessary nor helpful.
        I thank the Chairman. I thank the committee for this
    opportunity to address this important issue.
        [The prepared statement of Mr. Christensen can be found in
    the appendix on page 140.]
        Senator Crapo. Thank you very much, Dr. Christensen.
        Dr. Salwasser.

             STATEMENT OF HAL SALWASSER, DEAN, COLLEGE OF
              FORESTRY, DIRECTOR, OREGON FOREST RESEARCH
            LABORATORY, OREGON STATE UNIVERSITY, CORVALLIS,
                                 OREGON

        Mr. Salwasser. Thank you, Mr. Chairman. I am Hal Salwasser.
    In addition to being Dean of the College of Forestry at Oregon
    State University, I am also the policy chair for the National
    Association of Professional Forestry Schools and Colleges,
    representing over 60 institutions nationwide. My colleagues,
    deans and directors of this Nation's forestry and natural
    resource academic programs are all interested in how the Senate
    will address forest and rangeland health because current
    conditions in many places create high risks to our
    environments, communities, economies and treasuries.
        To us the science is clear. We have major and widespread
    problems affecting the sustainability of healthy forests and
    rangelands, some related to wildfires, others to insects and
    diseases. Many of these at-risk forests and rangelands are
    vulnerable to invasive weeds following major disturbances to
    soils and vegetation. Drought stress from a warming climate
    exacerbates these risks. We do not have these problems
    everywhere, and where we do have them they are not the same
    problem. Science tells us what the problems are, but science
    does not have all the solutions. Sustainable solutions will
    have to be tailored to each problem by local, collaborative,
    multiparty groups working strategically at watershed and
    landscape scales. These solutions will have to include basic
    and applied research that is done as the problems are being
    addressed through adaptive management so that over time we can
    improve our understanding of the dynamic systems that are at
    stake and improve the effectiveness of our solutions.
    Monitoring by these multiparty groups will be key to long-term
    effectiveness of investments.
        H.R. 1904 is generally on target. Are the Western Governors
    in their recent recommendations? It is vital that we act boldly
    and quickly to reduce these risks through landscape scale
    strategic treatments. Excessive precaution or avoidance of
    short-term risk created by site-scale restoration treatments
    will only increase both short- and long-term risks to all the
    landscape values at stake.
        The restoration of forest and rangeland health must extend
    beyond the wildland urban interface and municipal watersheds,
    as H.R. 1904 proposes. It must begin with removals of wood and
    biomass to reduce drought stress and risks of intense fire,
    insects or diseases, and to allow for the safe reintroduction
    of fire. Where fire is reintroduced we have to balance its
    benefits with air quality concerns. We must develop uses for
    the wood and biomass that is removed as restoration byproducts
    to meet some of the Nation's wood and energy needs while
    creating living wage jobs in rural America. We must improve
    agency planning processes, or additional appropriations will
    just prolong the waste on process rather than progress. We must
    also sharpen the focus of investments to achieve desired long-
    term outcomes.
        Making a national commitment to restore and sustain forest
    and rangeland health is more than achieving one-time fuel
    reductions. It is a grand experiment with interlocking social,
    environmental and economic dimensions. Therefore we need
    comprehensive, regionally coordinated landscape-scale strategic
    partnerships that engage multiple sectors, public and private,
    including colleges and universities in restoring and sustaining
    not only forest and rangeland health, but also the health of
    our communities, economies, and businesses associated with
    these lands, and the capacity of agencies to carry out their
    public trust. Such landscape-scale strategic partnerships are
    not in place yet in the National Fire Plan. They are not
    proposed in H.R. 1904 or any other proposed legislation. Long-
    term restoration and sustainability of forests and rangelands
    will be inefficient and perhaps ineffective without such
    partnerships.
        Our Nation's land grant and public universities have the
    education, research and problem-solving extension capacity
    currently missing from the proposed strategies. From the
    impassioned debates that I see in Congress over this issue, I
    am left to assume one of two possibilities, either there is not
    sufficient scientific and social consensus to guide Congress's
    decisions, or Congress is not listening to what the science and
    solution-minded public opinion leaders are saying. In either
    case, land grant and public universities are poised to help you
    and the agencies find workable, effective solutions. I
    encourage the Congress to engage the public universities in
    assisting Federal and State agencies, tribes and private groups
    with all the actions needed to restore and sustain this
    Nation's forests and rangelands.
        Thank you.
        [The prepared statement of Mr. Salwasser can be found in
    the appendix on page 149.]
        Senator Crapo. Thank you very much, Dr. Salwasser.
        Professor Kochan.

    STATEMENT OF DONALD J. KOCHAN, VISITING ASSISTANT PROFESSOR OF
    LAW, GEORGE MASON UNIVERSITY SCHOOL OF LAW, ARLINGTON, VIRGINIA

        Mr. Kochan. Thank you, Mr. Chairman. Thank you to the
    committee for inviting me here today to discuss H.R. 1904, and
    to provide my comments, which will focus primarily on the
    judicial review provisions in the act.
        My name is Donald J. Kochan, and I am a Visiting Assistant
    Professor of Law at George Mason University School of Law,
    where this past academic term I have taught property law and
    environmental law and regulation. I am testifying today to
    bring forth the necessity of the judicial review provisions and
    the appropriateness in light of existing law.
        The Health Forest Restoration Act is a necessary and sound
    legislative effort to protect and conserve our Nation's
    forests, public lands and the environmental and economic valued
    contained therein. Others today you have heard testify at
    length about the merits and necessity of H.R. 1904 to
    effectively manage the National Forest System lands and to
    control hazardous fuel reduction on such lands.
        My comments will focus, as I said, on the advisability of
    enacting legislation that allows citizens to participate in the
    process at the same time that it creates a system of judicial
    review that does not hamper the Forest Service and BLM from
    effectively dealing with imminent wildfire hazards within the
    National Forest System and on the public lands. This focus will
    address primarily Sections 105 through 107 of H.R. 1904. It is
    necessary for the Forest Service and BLM to have the authority
    that is contained in these sections without waiting
    indefinitely for a judicial ruling during a time in which
    exists the risks of imminent fire hazards.
        The judicial review provisions in H.R. 1904 are
    constitutionally valid and represent sound public policy, as
    they help to ensure that our Nation's forest resources will not
    burn as burning questions of Forest Service and BLM authority
    go unaddressed in the Federal Courts. Moreover, the judicial
    review requirements in H.R. 1904 will not divert or distract
    our Federal Courts from effectively managing their dockets and
    other case priorities.
        As you know, H.R. 1904 includes several judicial review
    provisions, one of the most unique being that which limits the
    time period for preliminary injunctions. The bill would
    preliminary injunctions granted by a Federal Court against a
    project implemented under this legislation be re-evaluated
    every 45 days, and encourages and admonishes courts to resolve
    this judicial review within 100 days. A court could extend
    preliminary injunctions an unlimited number of times at the end
    of each 45-day interval should it feel that it is appropriate.
    After any decision to renew an injunction, the agency involved
    is required to notify Congress of its decision.
        I agree with the House Judiciary Committee's findings that
    such a limitation on this review and limitation on preliminary
    injunctions is appropriate.
        The Healthy Forest Restoration Act in particular is nothing
    unique or unprecedented in Congress's statutory authority.
    Congress has the power and jurisdiction under Article III of
    the U.S. Constitution to limit the jurisdiction of the courts,
    including the ability to limit their equitable jurisdiction.
    The 45-day limitation on preliminary injunctions is consistent
    with this power of Congress and provisions have been made in
    the past and have been upheld in the past, that indeed limit
    the scope of substance of a preliminary injunction. Here, this
    would not be any different or unprecedented. 1904 simply
    balances the equities and limits the duration of a preliminary
    injunction in consideration of the seriousness of the issue and
    the dilemmas faced by the Forest Service and BLM, rather than
    prohibiting injunctions all together. This is merely a
    durational limit where Congress indeed has the power to
    eliminate preliminary injunctions if it wanted to entirely.
        Moreover, nothing in H.R. 1904 directs any particular
    outcome from Federal judges and leaves them independent to
    consider the merits of each case. Encouraging Federal judges to
    reach a speedy resolution in appeals under this act is a
    responsible exercise of Congress's stewardship over the
    Government's property while leaving intact the independence of
    Federal judges.
        If I could turn next briefly to the issue of the standard
    for injunctive relief in H.R. 1904, particularly as set out in
    Section 107. This sets forth a standard which is consistent
    entirely with the current standard for preliminary injunctions.
    It should not in any way alter a properly reasoned balancing
    test which already requires that judicial review of preliminary
    injunctions include short- and long-term interests, short- and
    long-term harms.
        Next I would like to briefly note the judicial review
    provisions in H.R. 1904 will not adversely affect the Court's
    docket or its ability to manage its caseload. The requirement
    that preliminary injunctions be revisited is particularly
    appropriate for hazardous fuel reduction issues, and in most
    civil cases this is not an issue. In most civil cases, after
    granting a preliminary injunction, circumstances do not change.
    However, rapid changes and conditions on forest lands can be
    expected making preliminary injunctions and limitations thereon
    perfectly appropriate. Unfortunately, disease, insects and fire
    do not obey preliminary injunctions. Furthermore, requiring
    that preliminary injunctions be renewed should require a
    minimal commitment of judicial resources. At any one time the
    Forest Service is facing only 100 to 120 cases at a time in a
    civil docket of the Federal District Courts that reaches
    250,000 cases. This is merely a drop in the bucket and will not
    divert the court from other cases.
        With that, I will only say add that this number should not
    harm the caseload docket and that we should trust judges to
    appropriately decide when and how to manage that docket.
        One final comment on the 100-day admonishment. This
    provision does not require judges to make any particular
    decision. It just merely sets the priority for Federal judges,
    and underscores the importance that Congress places on this
    legislation, and if judges feel that they should turn to other
    cases, then they certainly can.
        Thank you very much for allowing me to provide my comments.
        [The prepared statement of Mr. Kochan can be found in the
    appendix on page 156.]
        Senator Crapo. Thank you very much, Professor Kochan.
        Professor Parenteau.

               STATEMENT OF PATRICK PARENTEAU, DIRECTOR,
      ENVIRONMENTAL LAW CLINIC AND PROFESSOR OF LAW, VERMONT LAW
                                 SCHOOL

        Mr. Parenteau. Thank you very much, Mr. Chairman, Senator
    Cochran. I appreciate the committee's invitation to testify
    here today. I too will focus on the judicial review provisions,
    but I think you will see I have a slightly different view of
    those provisions than my colleague, Professor Kochan.
        My purpose here today is to urge the committee to take a
    harder look at these judicial review provisions, because there
    is more here than meets the eye. These are unprecedented, they
    are unwise, and they are unnecessary, and I would like to
    explain why.
        First, these judicial review provisions can not be viewed
    in isolation. This is part of a comprehensive approach by the
    Bush administration to address what is obviously a very serious
    problem of dealing with catastrophic wildfires, disease
    infestations and pest infestations in our national forests, and
    I proclaim no expertise on the best way to address those very
    difficult complex technical issues. With regard to the role of
    the courts in this process, what I would like to stress is the
    administration has already adopted a categorical exclusion for
    these fuel reduction projects, which in my view runs right up
    against the limits of the National Environmental Policy Act,
    and likely crosses that line in a number of cases. This is a
    categorical exclusion that is potentially so broad and so
    inclusive that it will eliminate NEPA review in cases where the
    statute and the CEQ regulations, would, in my view, mandate
    review. I would say the administration is way out on the
    furthest edges of the law in pushing the categorical exclusion.
    That is point No. 1.
        Point No. 2, the administration has also moved to severely
    limit administrative appeals on fuel reduction projects. The
    dispute over whether there ought to be some limitations on
    appeals is a legitimate issue. I am not sure the facts support
    those who argue that the appeals process is so badly broken
    that it needs to be precluded in the way that the
    administration is doing it, but the point is, the
    administration has moved to limit citizens' ability to appeal
    these projects through the codified appeal procedure of the
    Appeals Reform Act, and has also moved to exclude these
    projects from NEPA. There is only one final route for citizens
    to challenge these projects in terms of their compliance with
    law, and that is the Federal Courts. That is where the judicial
    review provisions come into play. That is where I want to focus
    the rest of my comments.
        The first thing I would like to say is that obviously this
    bill is moving fast through the Congress. If the metaphor is
    appropriate, it is indeed a freight train barreling down the
    tracks. There is a stowaway on this freight train, and the
    stowaway is in Section 107. The bill is characterized as a bill
    to address fuel reduction projects only. Section 107, goes to
    the heart of the judicial process, which is the balancing of
    the equities in deciding how to resolve violations of Federal
    law, and covers all Federal actions under the Administrative
    Procedure Act. Section 107(a) refers to ``any agency action
    under Section 703 of Title V,'' which is the Administrative
    Procedure Act, ``including but not limited to an authorized
    hazardous fuel reduction project that is necessary to restore a
    fire adapted forest or rangeland system.'' That phrase, ``fire
    adapted forest or rangeland system'' is not defined in this
    bill or in any other Federal statute. This is a new term of
    art. I am sure it means something to the Forest Service, it is
    an undefined term in corporating an unlimited scope of Federal
    actions. It is not simply about fuel reduction, it is about all
    of the activities of the Forest Service and the Department of
    Interior on public forest lands.
        Second, Section 107, is not simply an indication to the
    courts of congressional priorities or policies. This is an
    attempt to manipulate the balancing of equities that goes on in
    Federal Courts day in and day out. Mr. Rey referred earlier to
    40 years of jurisprudence dealing with injunctions and when
    they should issue and when they should not. I submit the
    equitable power of the courts goes back to 14th century
    England. That is where this power has come from, the power of
    the chancellor. This is a core function of the judiciary, Mr.
    Chairman. This is a core function. This is the essence of what
    judges do in cases where they have been presented with evidence
    of a violation of law. They are required to balance all the
    competing interests, not just those of one side. This bill
    talks about balancing harm to the defendants. That is one half
    of the equation in the balancing exercise. The other half is,
    what about harm to the plaintiffs, what about harm to the
    environment, what about the fact that the law has been violated
    and needs to be remedied? That is completely missing from this
    section of 107. This is definitely an attempt to put a thumb on
    the scale in favor of one side.
        If I may be permitted to finish, because I see my time is
    up.
        Section 107, also refers to giving weight to the findings
    of the Secretary with regard to harm from an injunction being
    issued. It is important to point out here that the Secretary in
    these actions is the defendant. What this bill is doing is
    saying the courts have to give weight to the defendant's view
    of whether or not the injunction will harm or unfairly impede
    the defendant. That, I submit, is unprecedented. I know of no
    Federal law that has reached into the judicial process and
    said, ``You should give weight to one side in the case and not
    weigh the case equally, even-handedly, impartially.''
        In closing, Mr. Chairman, I understand this legislation is
    needed. There are undoubtedly parts of it that are very
    important and useful. This one provision should be carved out
    and looked at separately. I believe it should be deleted, but
    at a minimum I urge you to look very carefully at this step.
    This is one branch of Government moving into the core functions
    of another branch of Government. I do not think that is sound
    constitutional policy or national policy.
        Thank you very much.
        [The prepared statement of Mr. Parenteau can be found in
    the appendix on page 162.]
        Senator Crapo. Thank you very much, Professor Parenteau.
        Chairman Cochran.
        The Chairman. On the subject of Mr. Parenteau's comments,
    you indicate also in your statement that you disagree with the
    deadlines in Section 106. Is that correct?
        Mr. Parenteau. Particularly, Senator Cochran, the deadlines
    for filing suit, yes. That one in particular.
        The Chairman. What deadlines if any would be appropriate in
    your judgment?
        Mr. Parenteau. 60-day deadlines would be fine because we
    have a history with that under several statutes where you have
    notices before suit. One of the things I am concerned about
    with that deadline, not only is a lot of people going to miss
    it simply because they didn't see the notice in the local paper
    and they will not know when they are supposed to file, but from
    the standpoint of a lawyer who has done a lot of litigation, I
    think a pause before a lawsuit is filed is useful. The parties
    ought to think about trying to resolve their differences before
    they pull the trigger. Some period of time I think it useful to
    give an opportunity for settlement or resolution of issues.
    This provision will force people to sue before they even try to
    do that.
        The Chairman. You also suggest that the cap for Federal
    lands that may be included in a hazardous fuel reduction
    project is objectionable. What would you consider a realistic
    cap?
        Mr. Parenteau. I do not have the expertise on that. My
    point is that the 20 million acre figures is a very aggressive
    interpretation of what the urban wildland interface zone is. We
    have heard testimony that maybe you have to go beyond that. I
    defer to experts about how far you have to go into the forest
    to deal with threats of catastrophic wildfire. My only point
    is, is that is a large scope of Federal lands that this bill
    applies to, and my concern is that that scope of Federal lands
    is not just limited to fuel reduction projects, as I have just
    indicated, it is an Federal action when it comes to being
    challenged in court and what the court should do about that. We
    are talking about any Federal actions on----
        The Chairman. You are suggesting that no cap would be
    appropriate, or no amount of acreage would be appropriate for a
    fuel reduction project?
        Mr. Parenteau. I am not saying that there is an appropriate
    cap of there is not, because I do not feel confident to say
    that.
        The Chairman. OK, thank you.
        Mr. Kochan. Mr. Chairman, might I respond to that question?
        Senator Crapo. Certainly.
        Mr. Kochan. The 15-day deadline contained in Section 106
    may seem short, but I just want to point out that the
    individuals involved that will be bringing these suits will
    have already been significantly and substantially involved in
    the decision-making process leading up to the Secretary's
    decision that will trigger this deadline. The fact that people
    may not know is a bit misleading. They will already have taken
    significant steps to understand this.
        Plus, a pause is appropriate before a case is filed.
    However, in our system of notice pleading, I think that it
    should be perfectly capable of filing within 15 days.
        Senator Crapo. Thank you very much. Let me stick with the
    question between our two law professors here, on the appeals
    process. I am going to start out on basically an issue relating
    to the timing and the standing question. I want to just give an
    experience that I had.
        About two or 3 years ago I went into, during one of the
    congressional breaks that we had, one of these places which we
    could call an urban interface area. It was just literally
    outside of a suburban housing area. In fact, we parked on the
    street across from some homes which were the outer edge of this
    suburban area, and walked into the forest to look at a proposed
    site where some thinning was proposed to be undertaken. The
    Forest Service and other officials took me in. The purpose of
    this was to show me an example of what they were trying to do
    in terms of forest management. There was a bug infestation
    problem. They wanted to try to get in and thin and clear away
    in terms of both fire protection and dealing with the
    infestation. They had worked to the point where they were ready
    to make the proposal for the project.
        I listened and thought I understood well, and then went on
    with my other duties. About 2 years later, in fact this was
    just recently, I went back, and no activity had taken place in
    this particular area. I asked the Forest Service and others to
    take me back. We parked in the same place, walked on the same
    path into to forest, and they showed me a forest that was at
    that point basically mostly a dead forest. The infestation had
    taken over to the point where they were not sure what they
    could do at this point.
        I asked them why nothing had happened, and they explained
    that the project had been appealed, and that they had been
    delayed in court through the litigation to the point where they
    had ultimately--and I do not remember this. I do not remember
    whether they won the appeal or whether the issue that was
    raised was one that they did not really have that much of a
    concern about so they conceded the point. Whatever happened,
    the litigation was resolved in a manner that was really not
    significant with regard to the proposal that they were trying
    to do. Through the appeals process, they had lost the timing.
        I said, ``Well, let us get on with it.'' They said, ``There
    is no point in doing it now.'' At this point the window had
    closed and the opportunity to manage this part of the forest
    was lost, and the infestation was under way, and they really
    were not sure what the next step to do was.
        I asked them, ``Well, why did you not visit with these
    folks ahead of time and work it out as you were putting
    together your proposal,'' because clearly it was something that
    could have been worked out and did ultimately get worked out.
    they said, ``A number of other groups came to us and raised
    concerns as the process was moving along, but this group did
    not. When we were all done we thought we had answered
    everybody's concerns and those we worked with did not appeal,
    but this group who did not come in and work us, just came out
    of blue when we were done and sued us, and then we were in
    court.''
        The question that came up to my mind is, should someone
    have standing, a person or an organization have standing to
    file an appeal if they do not participate in the public
    participation processes that are ongoing as we work through the
    NEPA law?
        Mr. Parenteau. With regard to the Forest Service appeals
    the law is such that if they do not participate in the
    administrative process and file the appeal, they are precluded
    from going to Federal Court completely. There is an exhaustion
    of remedies requirement that is part of the U.S. code, so they
    are out of court automatically if it is a Forest Service case.
    Even in BLM cases or Department of Interior cases, courts apply
    an exhaustion of administrative remedies doctrine very
    strictly, and if somebody waited in the weeds--we call it
    waiting in the weeds--and sandbagging the agency by not coming
    forward with their concerns, not participating in the processes
    that are available, courts will throw them out. You are
    absolutely right about that.
        Senator Crapo. They should throw them out, you agree?
        Mr. Parenteau. In many cases they should throw them out,
    that is right.
        Mr. Kochan. I agree that they should, and as the Forest
    Service is promulgating new appeals regulations, that is
    certainly----
        Senator Crapo. That should be a part of this.
        Mr. Kochan. Should be a part of it.
        Mr. Parenteau. By the same token, those who do play by the
    rules and play honestly should not find their case prejudiced
    by a statute that puts the thumb on the scales of the other
    side of the case. That is my point.
        Senator Crapo. I want to get into that in just a minute
    because I agree with you in a sense, but I want to be sure that
    we get there.
        Mr. Kochan. If I could just say one other thing on the
    exhaustion issue.
        Senator Crapo. Yes.
        Mr. Kochan. That may be true for those cases which have to
    go through the administrative appeals process. However, not all
    environmental challenges will do that, and under some statutes
    citizens may have an opportunity to challenge and come out of
    the woodwork.
        Senator Crapo. That might explain why this happened in this
    case, because I have to go back now and find out why did have
    this delay and why that occurred.
        Mr. Parenteau. Sometimes, unfortunately, it is bad
    lawyering.
        [Laughter.]
        Senator Crapo. I do not want to get into that.
        The example I have also shows why it is important for us to
    have the streamlining we can in this process, because in Idaho
    we have a short season, and I think in many parts of the West
    we have a short season in which to engage in the kind of
    management actions that we would like to engage in. A lawsuit
    that may be totally unfounded but stops it for three or 4
    months can essentially, in many cases, eliminate the need to
    address the issue. That is one of the reasons I believe we are
    trying to streamline, for example, having a 15-day time limit
    rather than a 60-day time limit for the filing of appeals.
    Could you comment on that, both professors?
        Mr. Kochan. On the appropriateness of the 15-day timeline
    or----
        Senator Crapo. Yes, that, or just the need for streamlining
    in general.
        Mr. Kochan. The streamlining is definitely necessary. These
    are situations which can change rather rapidly. Seasonal
    variations, forces of nature, the speed in which insect
    infestation can move through the forest, all of these things
    are reasons to not only revisit every 45 days a preliminary
    injunction that is holding up the ability to do a fuel
    reduction project, but also to remind the courts of the need to
    conclude judicial review in a speedy manner, because as you
    said, and from your example, there is nothing to do, you have
    lost any opportunity to address the situation after a
    significant period of time has passed.
        Mr. Parenteau. I have two quick comments on streamlining.
    First, I guess it depends on whether or not you believe the
    General Accounting Office's study of the appeals process, which
    concluded that in about 95 percent of the cases the appeals
    were completed within the timeframe allocated for
    administrative appeals.
        The other point I would make is that I think one of the
    biggest problems with the administrative appeals in these cases
    involving fuel reduction is that they are combined with
    commercial logging. They are combined with harvesting large
    trees, overstory trees, large diameter trees, that does nothing
    to deal with fire control. The scientists on that--I am not the
    expert; I would refer to Drs. Salwasser and Christensen on
    this--but as I read the scientific literature on this question,
    cutting these big old growth trees is not the answer to
    preventing catastrophic wildfires. When you combine a timber
    sale for thinning and fuel reduction with a commercial logging
    operation, you are inviting appeals. Those are separate
    questions, and I think that the application of the National
    Environmental Policy Act, the Endangered Species Act and some
    other Federal statutes to a commercial logging operation is a
    very different consideration when you are talking about
    streamlining and so forth. The fact that the Forest Service and
    the administration has insisted on linking these two things
    together, the fuel reduction with commercial logging is
    creating enormous problems for how to create a streamlined
    appeals process that does not either advantage one side or the
    other or disadvantage the environment in some way. If they
    could be separated, if you could really look at thinning around
    the urban interface, I do not think the appeals process should
    be a big problem, and if the Congress wanted to legislate no
    appeals in those kinds of cases, that would be a perfectly
    appropriate policy response, but to legislate no appeals, no
    NEPA, and a limited, truncated judicial review with projects
    that are going to include commercial logging in the back
    country, I think that is a problem.
        Senator Crapo. Are you stating that you believe this
    legislation prohibits appeals?
        Mr. Parenteau. I am saying that one provision of the
    legislation, yes, it does. It repeals the Administrative
    Appeals Act, Section 105.
        Mr. Kochan. My understanding of that piece of legislation--
    of course the drafters and the committee, Mr. Chairman, you
    would know better than I, but my reading of it from a legal
    standpoint is that it simply calls for the Forest Service and
    BLM to promulgate and establish an appeals procedure, rather
    than eliminating the opportunity for appeal.
        Senator Crapo. Correct. The intent of the language--and I
    will read it to make sure it does--but the intent of the
    language is to repeal the statutorily mandated system and to
    direct the Forest System to establish an administrative system
    of appeals. Although it is taking one appeals system out, it is
    replacing it with another.
        Mr. Kochan. There is an additional check on that because
    through the rulemaking process citizens will then have an
    opportunity to challenge those rules if indeed they are
    arbitrary and capricious or otherwise not in accordance with
    law.
        Mr. Parenteau. Mr. Chairman, I would strongly urge that if
    the intent is to replace a known appeals process with an
    unknown appeals process, that the legislation ought to at least
    set out standards and parameters by which that appeals process
    is to be designed. Otherwise, it will mean whatever the Forest
    Service says it means, and that is a pretty broad grant of
    authority. If that is what the Congress decides to do in its
    wisdom, that is one thing, but we know what the appeals process
    is today. That is being taken off the table. We have no idea
    what the appeals process is going to be tomorrow, nor do we
    have any standards to judge whether it is an adequate one.
        Senator Crapo. I will go back into that also. I believe
    there are some standards in the legislation, and we will get
    into that, but I think it is a valid comment for you to bring
    up.
        You have also raised another issue which I am going to
    divert into that issue, and then come back to the legal issues
    we were getting into. You raised the question of logging versus
    thinning, basically, commercial logging versus thinning for
    purposes of forest management. As I said earlier at some point
    in the hearing, I personally believe that we can have healthy,
    viable, strong forests in perpetuity that retain all the values
    of our ecosystem and still allow us to engage in commercial
    logging under appropriate procedures. Some people in the
    country do not believe that. There are groups in the country
    who believe that there should be no commercial logging period
    on the National Forest.
        Professor Parenteau, I would just like to know whether you
    have a position on that.
        Mr. Parenteau. I do not. That is too complicated to come
    down on some simplistic yes/no, frankly.
        Senator Crapo. Then what I would like to do is to go to Dr.
    Christensen and Dr. Salwasser to ask you the same question.
    Like I said, I believe that we can have commercial logging
    without destroying the forests, and in fact we can do so in a
    way that helps us to maintain healthy, dynamic, viable forests.
    Would you please both comment on that?
        Mr. Christensen. Yes, I agree with that. I also would say
    that we should separate the issue of logging from the issue of
    hazardous fuel management. They are really two different
    things, and they do not necessarily accomplish the same thing,
    and in fact they can have obverse consequences. That is to say,
    logging, meaning of course the removal of large trees--can have
    consequences in the landscape that are contrary to the intent
    of this bill. There is a real danger here in not thinking
    carefully. I am agnostic about the logging on public forest
    issue because I think it is a very complicated issue that has
    economic social issues, as well as economic issues involved. My
    main concern regarding this bill and the confusion of those
    things is that the intent and our focus needs to be on fuel
    management, and that removing big trees really complicates
    that, it does not simplify it. It does create potential
    perverse incentives for managers on the ground having to pay
    for the costs of whatever they are doing, to be doing things
    that are really contrary to the long-term interest.
        Moving big trees changes the moisture conditions under the
    forest immediately, which makes them drier and more fire prone.
    Remove big trees and the forest immediately wants to begin to
    regrow, and that regrowth 10 years downstream oftentimes is as
    flammable as what it is we wanted to control in the first
    place. That issue is one that needs to be addressed very, very
    carefully, and I really hate to see us confusing it. I really
    do believe that that issue has really clouded and confused this
    in a way that has brought people who could agree on what it is
    we need to do into some sharp disagreement.
        Senator Crapo. Dr. Salwasser.
        Mr. Salwasser. Thank you. This is indeed a complicated
    issue, complicated in part by our terminology. There are many
    people, myself included, who would call the cutting of any tree
    logging, of any size. The issue really is what is the purpose
    of the removal of the trees? If the purpose of removing trees
    of a forest is the sustainable production of wood fiber, that
    is a commercial timber sale and a reforestation follows. If the
    purpose is to reduce fuels, to reduce wildfire risk, to change
    the characteristic of an insect infestation, it is not really a
    commercial timber sale. It is a forest health treatment. If you
    happen to be able to derive some economic value from the
    materials that you have removed, that is great. That will help
    you pay for some of the treatment effects. The focus should not
    be on so much on how much you remove, but what do you have to
    leave behind to achieve the restoration objectives? Generally
    speaking, leaving the biggest is the wisest thing to do, but
    you cannot just leave the biggest and take everything else,
    because over time you are going to have to have some trees
    growing up to replace the big ones when they die and fall over.
        You have to have an eye not on the fuel reduction
    treatment, or the insect risk reduction treatment, but what do
    you have to do at a landscape scale and at the sites or stands
    within that landscape to restore and sustain an ecosystem that
    has some resiliency over time to the inevitable fire and the
    inevitable insect outbreak.
        The science, as we understand it right now, helps us know
    how to reduce the fuels to change the fire behavior of a stand,
    and it helps us know how to reduce the insect risk. The science
    is not there on how to restore a resilient forest or rangeland
    ecosystem for a long time so that it does not require us to go
    back in every 5 or 10 years and do another treatment. We do not
    have the science of the landscape scale. We do not have the
    science that tells us how do we do this in a climate that is
    warming and in an environment that has invasive species waiting
    to move in after any disturbance. That is why I called for the
    landscape scale strategic partnerships between research and
    management to learn these things as we go that we simply do not
    know right now.
        Senator Crapo. Let me ask a further question I suppose to
    both of our doctors here. A lot of the discussion we have had
    here is with regard to whether large trees can be taken out in
    a context of anything other than a commercial activity, and I
    have to say that when I was out in Elk City in the Red River
    area a few weeks back, I saw an awful lot of large dead trees.
    This is a very heavily bug-infested forest. Is there a reason
    why those trees could not be harvested commercially? I am
    talking about an ecological reason or a management reason why
    those trees could not be harvested commercially.
        Mr. Christensen. If I may comment, I am not familiar with
    the particular area, so I am in danger of making a judgment
    about something that may be very unique from area to area.
    There are certainly circumstances in which we have large-scale
    kill of trees either from pests, blow-downs or whatever, in
    which some salvage is warranted, is meaningful and can be done,
    and can be done in a sustainable fashion.
        On the other hand it is important to recognize that dead
    trees and decaying wood are an incredibly important part of
    what happens in natural forests. It is part of what maintains
    the long-term productivity of the forest. It has hydrologic
    effects that affect flows and water quality. There is an
    enormous amount about wood that is important. Removal of wood,
    just because it happens to be dead, is something that we need
    to be very judicious about.
        My answer is it is something that really needs to be looked
    at in the context of the function of the forest on a landscape,
    in a watershed, where we might salvage in a judicious fashion,
    but recognize that dying trees are a normal part of the way
    forests work and that that dead wood has functions for habitat,
    water flow, soil fertility in the long term that is really
    critical to the productivity of those forests 10,100 years from
    now.
        Mr. Salwasser. Senator Crapo, in my previous life as a
    Forest Service executive, I was the Regional Forester in
    Missoula and I had responsibility for those lands around Elk
    City and the Red River.
        Senator Crapo. You know the area at least.
        Mr. Salwasser. I know the area. I know it fairly well. My
    answer is that it goes to the purpose of the land in question.
    If the land that you are talking about is adjoining
    communities, then the removal of dead trees is a pretty good
    idea to reduce the fire hazards. If the land in question is out
    in the wilderness area or a roadless area and is not slated for
    any kind of a natural resource production, then there is no
    reason to remove the dead trees. The answer to the question of
    is it OK to do commercial logging and salvage is first you need
    to understand and have some agreement on what is the purpose
    for the places that we are talking about? It is entirely
    appropriate to use commercial timber sales to remove trees from
    the forest if that is what the purpose of the place is.
        Senator Crapo. Let me ask, and I suppose this question is
    again for Dr. Salwasser and Dr. Christensen, but let me ask
    another question in this context because I really want to get
    into this question of commercial logging versus management
    thinning or whatever we would call it. I have another story to
    tell.
        On one of the occasions when I was out looking at the Idaho
    forests I was in--I cannot remember if it was an airplane or a
    helicopter--but we were flying over the forest after a fire.
    This had been about a year after a major fire had gone through.
    I was being shown by those with me the burned areas and what
    had happened and what was being done. As we were flying over,
    we crossed over a road in the forest and the forest on the
    other side of the road was what appeared to me to be a very
    healthy forest. It was green, lush, there were not the burned
    areas, and it appeared that the fire had burned right up to the
    road and stopped, which is actually had. I made a comment to
    those with me. I said, ``That is interesting. I did not realize
    a road could just stop a fire.'' They said that was not the
    road that stopped this fire. The forest that burned was a
    Federal forest. The forest on the other side of the road was a
    State forest, and the State forest had been managed
    differently. They showed me the same thing with private land,
    which was forested, which did not burneither in this fire. The
    point they made to me was that these forests had been logged
    commercially, and the undergrowth and whatever else had been
    cleared out and the forest had been thinned, but there had been
    commercial logging activities.
        The point that I am getting at here is that I have seen at
    least what I thought was a very distinctly healthy forest in
    either private ownership or State ownership, which had been
    commercially logged.
        Back to my original question. Is there anything about the
    science that we know now that tells us that we cannot have
    commercial logging and healthy forests at the same time?
        Mr. Salwasser. I will go first this time. There is nothing
    that I am aware of in the body of scientific knowledge that
    says that we cannot have commercial logging and have healthy
    forests. It all comes down to what is the nature of the
    logging, what is the nature of the reforestation that occurs,
    and what are the purposes for the place that we have in mind?
    The purposes are going to be very different based on who owns
    the property and what kind of a forest type we are dealing
    with, and what kind of slopes we are dealing with. The science
    is available for the managers, and they have had the practical
    experience for a long time to know that they can carry out
    logging activities and maintain the protection of soil, the
    protection of water quality, wildlife habitats.
        Senator Crapo. Dr. Christensen.
        Mr. Christensen. The number of studies of the relationship
    between commercial activity--I am talking about now systematic
    evaluations of commercial logging activities and fire. The
    number is zero. There has really been very, very little study,
    and I am quite sure, and I actually agree with Hal, that we can
    manage and manage commercially forests, and that that is not
    inconsistent with healthy forests.
        The history of commercial activities in the West though
    would tell us a bit of a mixed story about the relationship
    between commercial activities and the behavior of fire. If we
    look historically, the issues of what happens with slash, how
    the areas are managed, the kinds of activities, and most
    importantly, what happens after we come in and begin to manage
    I think is very, very complex.
        I am not willing to say categorically that you cannot do
    it, but rather that unfortunately, what we are depending on
    here are really anecdotal references to this situation versus
    that situation. I really believe we can do an awful lot better
    on that. I do believe that indiscriminate cutting of large
    trees, and I am by that meaning fairly large trees, can have
    adverse consequences relative to the goal we are talking about.
    Does that mean that you cannot do commercial cutting? I do not
    think that is necessarily true. The issue here is we do not
    want whatever incentives may come with the commercial side of
    it to be counterproductive relative to the central goal, and
    that is healthy forests. It is a complex issue and I think the
    science is still pretty messy on it.
        Senator Crapo. I agree with you. In fact, my constituents
    in Idaho, from whichever side of the issue they come, would all
    agree on one thing, and that is, one of the reasons I live in
    Idaho and one of the reasons most if not all of my constituents
    live in Idaho is because we love our forest and we want them to
    be strong and healthy and viable. The principle of making
    certain that commercial activities in the forests do not damage
    the ecology or destroy the forests, is one I think we will all
    agree to. Then it comes down to the battle over, some say that
    means you can have no commercial activity, and others say you
    can but you have to do it with proper management. What I am
    hearing from both of you is that one piece of this that we
    clearly need to get more of is more science, more
    understanding, more studies and more analysis so that we can
    conduct whatever activities we undertake in our forests with
    common sense and good science.
        Mr. Salwasser. Senator Crapo, I agree with that, and I
    agree with what Norm Christensen has been saying, but it is
    critically important that we do not view the forest and
    rangeland health restoration challenge that we have ahead of us
    as one where we need to wait and get the science together
    before we do something. This is clearly a situation where we
    have to do the science as we do the problem solving, and that
    is why the integration of research and management and education
    and extension is critically important here, that we learn how
    to do this as we go.
        Senator Crapo. That is a good point and thank you.
        Mr. Christensen. If I could just follow?
        Senator Crapo. Yes.
        Mr. Christensen. Just to say amen to that, and as one of
    the reasons in my testimony called for an integrated program of
    learning as we go, and that can be far more explicit on our
    legislation on this. We do have a lot to learn. We cannot wait,
    however, and we really agree on that.
        Senator Crapo. Thank you, and I might say that we, the
    Senators on this committee and other Senators who are concerned
    about this issue are working together to see if we need to come
    up with a separate approach to this or a supplemental approach
    to what we are dealing with right now. We are going to move
    expeditiously, but we may be writing our own legislation as
    well, and so these comments are very helpful. We may not be
    able to solve every problem in this bill, but at least these
    are good healthy suggestions.
        Mr. Christensen. I just would call attention to the fact
    that in my written statement I did outline some potential
    wording in that direction.
        Senator Crapo. I noticed that, and we appreciate that when
    that is provided.
        Now, I am going to come back to some legal issues. Did you
    have something to say?
        Mr. Parenteau. Well, I wondered if you would entertain a
    non-scientific perspective on this question?
        Senator Crapo. Certainly.
        Mr. Parenteau. One thing that science--with all due respect
    to colleagues that I admire greatly--cannot tell us is what is
    a good forest and what is not a good forest. We can talk about
    healthy. That is a very deceptive term because we think
    automatically of a health organism, a single organism like our
    own health. You cannot really talk about forests in that way
    and capture all the values, all the complexities, all the
    nuances that go with the way the public views these lands and
    these resources.
        What I am suggesting is we do need to get the best science
    we can, but science cannot answer some of the fundamental
    questions about what do we want on this landscape? You can look
    at a forest. You can go to Europe and you can say, ``Those look
    like very healthy forests.'' Those are tree farms. Those are
    not what an advocate, let's say, of biological diversity and
    natural systems would consider to be a forest with all of the
    complexity and diversity and disturbance regimes that go with
    that. What I am suggesting is once we try to cabin the science
    as best we can, we have a more difficult challenge, which is
    where are the public values here and what is going to be the
    process in administrative appeals, in judicial review, to allow
    some of those values, those non-scientific values, those
    normative standards to come into play? That needs to be
    remembered as well.
        Senator Crapo. Yours is a very valid point, and if I
    understand the position you are taking correctly, it gets into
    questions that we deal with here, such things as what should be
    designated as wilderness, where we have no economic activity of
    any kind allowed, period, or wild and scenic rivers
    designations or just other restrictions, where do we allow off-
    road vehicle use and where do we not, and the like? It is
    those--am I correct that you are getting into those kinds of
    policy decisions?
        Mr. Parenteau. I am suggesting there are policy, legal,
    economic questions, and I think actually some economists might
    disagree with you that wilderness does not have any economic
    use, but anyway, I take your point.
        Senator Crapo. I understand your point there because there
    can be a recreational and a tourist value that comes with it,
    and I do not mean to disregard that because it is a very
    valuable and viable economic use. Your point is well taken.
        Let us go back to the legal issues that I diverted from for
    just a moment, and both Professor Kochan and Professor
    Parenteau, I want you to respond to these questions. I will
    start with an issue that you raised, Professor Parenteau, with
    regard to the question of whether the legislation that we are
    considering here today tells the court how it must engage in
    the balancing. First of all I want to get to a comment that you
    made, Mr. Parenteau. You said you were not aware of any Federal
    law that told the court how it must engage in balancing, or tip
    the balancing. Is that an account statement?
        Mr. Parenteau. Yes. In terms of actually manipulating the
    equitable balancing. I grant Professor Kochan's point that you
    have the power to tell the courts to stay out of this all
    together. You have that power under the Constitution. I am not
    arguing that you do not have the power to tell the courts not
    to do it. I am simply saying I know of no statute that is going
    right into that equitable balancing in individual cases and
    saying, ``You should give weight to this side of the argument,
    and these specific arguments.'' I do not know of any statute
    that says that.
        Senator Crapo. Let me get into that with you because I
    practiced law before I came to congress, and under the
    Administrative Procedures Act it was always extremely
    frustrating to me to litigate against an agency because under
    the APA they get to find the facts.
        Mr. Parenteau. That is correct.
        Senator Crapo. By finding the facts they can decide the
    outcome of the case.
        Mr. Parenteau. On the merits.
        Senator Crapo. On the merits, that is correct.
        Mr. Parenteau. Different than injunction.
        Senator Crapo. Understood, except that the merits of the
    fact finding significantly impacts the injunctive analysis.
        Mr. Parenteau. You do not even get to the injunction unless
    you have found that the agency has violated the law on the
    merits. That is true. The agency gets a lot of deference on the
    merits, that is absolutely right.
        Senator Crapo. In fact, the agency's decision basically
    must be given deference by the court unless it is found to be
    arbitrary and capricious.
        Mr. Parenteau. That is correct, on the merits.
        Senator Crapo. On the merits. I guess what you are doing
    then is you are distinguishing between a factual finding, which
    the courts do too, and I have always disagreed with this
    because--I am smart enough to know as a lawyer that once the
    court finds the facts and the agency gets to be the one finding
    the facts, that the case is pretty much over.
        Mr. Parenteau. Yes. The difference here, if I may, Mr.
    Chairman?
        Senator Crapo. Yes.
        Mr. Parenteau. The difference here is that this provision,
    Section 107, comes in after there has been a finding on the
    merits that the agency is in violation. The court has already
    given the appropriate deference to the agency on the merits,
    and still found a violation. Now we move to the phase of the
    case which is what do we do about the violation? In that
    context, I am saying that is the essential core function of a
    judge, to weigh all the facts and circumstances of----
        Senator Crapo. For the equitable relief.
        Mr. Parenteau. For the equitable relief. What this is doing
    is saying, no, we want you to focus on the defendant's side of
    the case to look at the harm to the defendant and to look at
    what the defendant has basically said about whether or not an
    injunction should issue. That is unprecedented. That is going
    too far in my view.
        Senator Crapo. I will give Professor Kochan a chance to
    respond, but let me first just ask, I assume you are referring
    to Section 107, where it says that the reviewing court shall
    balance the impact to the ecosystem of the short-term and long-
    term effects of undertaking the agency action against short-
    term and long-term effects of not undertaking the agency
    action. Is that the language you are talking about?
        Mr. Parenteau. Yes, but it begins earlier, and that is the
    more important. The provision directs that, in determining
    whether there would be harm to the defendant from the
    injunction, the court should balance the impact to the
    ecosystem of short- and long-term and give weight to the
    finding of the Secretary, which is by the way the defendant in
    these cases. The problem is, the way this thing is linked
    together: Focus on the defendant's injury, then focus on the
    defendant's findings on injury and give weight to them. That
    goes too far. That is clearly invading a function that has
    historically--and this is one of the venerable aspects of our
    jurisprudence. This goes all the way back to our common law
    roots. Judges doing equity are supposed to be given the
    flexibility and the freedom to shape and tailor relief to
    achieve compliance with the law in the way that best comports
    with the interest of justice. At a minimum, this is confusing.
    This is telling judges to do it differently than they have been
    doing it, in ways that, I believe, are appropriate. Judges have
    all the power in the world to do the balancing that should be
    done. The Supreme Court has said in numerous cases injunctions
    do not automatically issue. With due respect to Mr. Rey, he is
    dead wrong when he says that courts automatically issue
    injunctions to stop cutting trees. They emphatically do not do
    that, and I have cited cases in my testimony where they have
    said, we are not going to enjoin tree cutting because it is
    needed to prevent the spread of insect infestations. The courts
    today are doing the balancing, refusing to issue injunctions
    when the interests of justice dictate that an action is
    urgently needed and must take place. This is at a minimum
    mischievous and confusing, to tell the judges that you need to
    now do it differently. You need to look at the defendant's
    arguments more carefully, give the defendant's arguments more
    weight.
        I do not understand why this is at all necessary to achieve
    the objectives with respect to the legislation.
        Senator Crapo. Professor Kochan.
        Mr. Kochan. Yes. I believe that Section 107 does very
    little to change the current status of the law at all.
        If you look at the cases cited in Professor Parenteau's
    written testimony, those cases themselves set out the balancing
    test that is used in granting preliminary injunctions, that is,
    significant likelihood of success on the merits, followed by a
    showing of irreparable harm, followed by a showing of weighing
    harm and giving weight to the defendant's harm, balancing the
    harms between the two, and then finally whether the injunction
    should issue in the public interest.
        Now, Section 107 does nothing to, one, eliminate the
    court's current standard that is adopted almost universally
    within all the district and courts of appeals to apply the
    standard. There are slight different iterations of the standard
    in these courts, but there is nothing that would exclude courts
    from continuing to apply that same four-factor test, and it
    also does not say that these are the only things that the court
    can consider, and as far as my reading of statutory
    interpretation. It does accomplish, it seems to me, the
    important purpose of first showing the courts and reminding the
    courts of their duty to consider both long-term and short-term
    harms. As evidence has shown and as others have testified
    before, that long-term analysis, that long-term harm
    consideration has often been lost in the clouds when there are
    heated debates and concern about cutting a tree. At the same
    time you need to consider the long-term health of the forest,
    and that is perfectly appropriate and something that the courts
    have a responsibility to do under their own standard already
    today.
        As far as the weight issue that you bring up, I believe
    that it really does little to change the status of law. As you
    said, agencies currently receive this type of deference and
    this type of weight, and it does not say that the defendant is
    to be given exclusive weight. It merely reminds the Court again
    of an obligation to consider these facts and to consider the
    agency's expertise on these facts.
        The final point I will make will address whether it is an
    unprecedented issue. The standards for issuing a preliminary
    injunction have often been limited by Congress, and you can see
    this throughout many of our labor laws, throughout many of our
    banking laws, in which sometimes preliminary injunctions have
    been eliminated all together, and at other times the standards
    for issuing that have been prescribed. I would be more than
    willing to provide a list of those to the committee.
        Senator Crapo. Thank you. Let me just weigh in on this as I
    read it, and again invite your comment. I see your point,
    Professor Parenteau, about the language where it specifies the
    words ``harm to the defendant.'' If also follows that with
    concern about what the public interest should be, well, what
    impact would prevail upon the public interest. I agree with
    you, that it could be written in several different ways and
    that this does raise at least a question as to what was
    intended by the language. I also agree with Professor Kochan
    that it certainly does not say that these are the only things
    that can be considered.
        To me, the controlling thing here is that after it says,
    ``in considering these things,'' it tells the reviewing court
    how it must do the balancing, and in that case the language
    goes immediately to considering the ecosystem, and it says that
    the court must balance the impact to the ecosystem of the
    short- and long-term effects of undertaking the agency action
    against the short- and long-term effects of not undertaking the
    agency action.
        It seems to me that the language says: We are going to look
    at the ecosystem, and in issuing the preliminary injunction,
    you have to take into consideration not only the short-term
    impacts but the long-term impacts as well. At least my
    understanding of the intent of this language was to make
    certain that the courts look at both the long-term and the
    short-term, and to use Mr. Rey's words, to focus not just on
    whether there is harm and--how did he put it--he said, you
    cannot uncut a tree, but also you cannot unburn the forest. You
    must look at both sides, both short- and long-term.
        Mr. Parenteau. What I would say is the courts are already
    doing that, so the question is what is this language doing
    here? If Professor Kochan is right that this does not change
    the law, same question, if it does not change the law in any
    respect, what is it doing here? We have in the academy, as we
    say, something called restatements, restatements of the law of
    torts, restatement of the law of contracts. We always say,
    well, if it is just a restatement what is the point? If it is
    not a restatement, then it is a new law. My question here is,
    if the courts are already doing this, if this does not change
    anything, then what is it doing here?
        Senator Crapo. The premise would be--I do not think that
    many of us--let me say it differently. Many of us would
    disagree that the courts are already doing this. My
    understanding of the purpose of this language was to make
    certain that the courts are doing the second part, namely,
    looking at the long term. If your position is that they are
    already doing that, then I guess my response would be, then why
    would you worry about this language because all we are saying
    in this language is that we want the courts to do both.
        Mr. Parenteau. The reason I worry about it is not because I
    worry that they are just asking them to do things that they are
    already doing. It is because of the way this is framed. If I am
    a Federal judge and I am trying to pay attention to what
    Congress is telling me are important policies, and my judicial
    mantra is I am supposed to give effect to every word in every
    statute, you are going to find Federal judges trying to figure
    out what is it that the Congress is telling them to do
    differently than they have already been doing. When you say
    that they shall give weight to the finding of the Secretary on
    this very complex--and I must say, probably beyond the ken of
    most scientists, let alone judges, to balance the short- and
    long-term effects to the ecosystem of individual projects. When
    you tell them that they are supposed to do that kind of
    balancing, and when they do that balancing, they are supposed
    to put a thumb on the scale. That is what that means. The
    Supreme Court has interpreted that language in Section 4(f) of
    the Department of Transportation Act to mean a thumb on the
    scale. They are supposed to put a thumb on the scale of the
    findings and the administrative record of the Secretary, which
    means the court is supposed to ask the defendant in the
    litigation, mind you, that the court has just found to be in
    violation of the law, ``What do you think is the harm from me
    enjoining the action from going forward that is in violation of
    the law?'' The Secretary says, ``Oh, I think the harm in the
    long term would be very severe.'' Now the court is supposed to
    give weight to that finding. My point is, at that point you
    have biased the equitable balancing. You have removed the
    ability of the judge to impartially look at all the facts and
    circumstances of a case. You have singled out the finding of
    the Secretary on this one point, short- and long-term effects
    to the ecosystem, and said, that is controlling.
        That is probably what some judges will do. Some will
    resist. Some will want to know whether the intent behind this
    was really to skew the balancing or not, but some of them will
    try to give effect to this language, and that is, in my
    judgment, an intrusion into their decision-making.
        Senator Crapo. Professor Kochan.
        Mr. Kochan. Briefly. Congress has often given deference to
    agencies, but here I read this language as requiring simply
    that the courts consider this impact and give weight to it. It
    is no different really than anything else that Congress has
    exercised in a similar fashion.
        One thing I would like to correct that I have heard
    Professor Parenteau say several times now, is that at this
    stage that the agency has already been found in violation of
    the law, which is simply not true. It is that there is a
    substantial likelihood of success on the merits, but there had
    been no final determination on the merits under judicial review
    at the time that you weigh these factors.
        Mr. Parenteau. With due regard and respect, in Section 107
    we are not talking about preliminary injunctions. What
    Professor Kochan is talking about is the standard for
    preliminary injunctions in 106. That is not what is talked
    about in 107. Here we are talking about motions for injunction.
    That can be a motion for a permanent injunction following a
    decision on the merits, so this goes to the final resolution of
    a case as well as the preliminary injunction, as I read it.
    Otherwise----
        Senator Crapo. It could go to both.
        Mr. Parenteau. It applies to both, exactly, I agree.
        Senator Crapo. I am finding this very interesting,
    particularly as a lawyer myself, and it is bringing back all
    the feelings I had when I litigated under the Administrative
    Procedures Act.
        [Laughter.]
        Senator Crapo. Which were not good feelings, by the way,
    when you are not on the Government's side.
        Mr. Parenteau. I agree with you.
        Senator Crapo. Hold on just 1 second. I want to organize my
    notes here and see if there are some questions I have missed.
        I do have a number of other questions, although I can feel
    my little alarm going off in my pocket here, telling me that we
    have far exceeded our timing on the hearing today at this
    point. What I am going to do is thank the witnesses for coming.
    We certainly have not gotten to the end of the questions or the
    end of the issues on this, and as I said earlier, there are
    going to be some issues that I wanted to pursue personally that
    I will communicate with you in writing about.
        I want to thank all of you for coming here, as well as the
    other witnesses, because clearly we are facing important policy
    decisions at this level with regard to how we will approach the
    management of our public lands. We deal with it not only from
    the perspective of protecting our urban areas against fire, as
    Senator Lincoln and myself and others have pointed out, we also
    have much broader concerns with regard to the healthiness of
    our forests and the ecosystems that we are seeking to protect
    and maintain there. Into the questions that Professor Parenteau
    brought out, with regard to the question of what is it that we
    want to manage the land for in particular instances and aspects
    all of this weights in to a very, very dynamic debate here in
    Congress.
        As I also said previously, we are going to be looking at
    this legislation to see if we think it needs to be tweaked or
    if we need to introduce some supplemental language to address
    issues that we think need to be addressed differently or that
    were not addressed in this legislation and need to be
    addressed, and we appreciate your continued input into this.
        With that, this hearing will be concluded, and I once again
    want to thank all of the witnesses for your time and effort in
    bringing these issues before us.
        [Whereupon, at 1:55 p.m., the committee was adjourned.]

    =======================================================================

                                A P P E N D I X

                                 June 21, 2003

    =======================================================================

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    =======================================================================

                       DOCUMENTS SUBMITTED FOR THE RECORD

                                 June 21, 2003

    =======================================================================

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    =======================================================================

                             QUESTIONS AND ANSWERS

                                 June 21, 2003

    =======================================================================

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