[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

____________________________________________________________________________
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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.]
      
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                            A P P E N D I X

                             June 21, 2003



      
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                         QUESTIONS AND ANSWERS

                             June 21, 2003



      
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