[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
FOREST SERVICE REGULATORY ROADBLOCKS TO PRODUCTIVE LAND USE AND
RECREATION: PROPOSED PLANNING RULE, SPECIAL-USE PERMITS, AND TRAVEL
MANAGEMENT
=======================================================================
OVERSIGHT HEARING
before the
SUBCOMMITTEE ON NATIONAL PARKS, FORESTS
AND PUBLIC LANDS
of the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
Tuesday,, November 15, 2011
__________
Serial No. 112-83
__________
Printed for the use of the Committee on Natural Resources
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_____
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COMMITTEE ON NATURAL RESOURCES
DOC HASTINGS, WA, Chairman
EDWARD J. MARKEY, MA, Ranking Democrat Member
Don Young, AK Dale E. Kildee, MI
John J. Duncan, Jr., TN Peter A. DeFazio, OR
Louie Gohmert, TX Eni F.H. Faleomavaega, AS
Rob Bishop, UT Frank Pallone, Jr., NJ
Doug Lamborn, CO Grace F. Napolitano, CA
Robert J. Wittman, VA Rush D. Holt, NJ
Paul C. Broun, GA Raul M. Grijalva, AZ
John Fleming, LA Madeleine Z. Bordallo, GU
Mike Coffman, CO Jim Costa, CA
Tom McClintock, CA Dan Boren, OK
Glenn Thompson, PA Gregorio Kilili Camacho Sablan,
Jeff Denham, CA CNMI
Dan Benishek, MI Martin Heinrich, NM
David Rivera, FL Ben Ray Lujan, NM
Jeff Duncan, SC John P. Sarbanes, MD
Scott R. Tipton, CO Betty Sutton, OH
Paul A. Gosar, AZ Niki Tsongas, MA
Raul R. Labrador, ID Pedro R. Pierluisi, PR
Kristi L. Noem, SD John Garamendi, CA
Steve Southerland II, FL Colleen W. Hanabusa, HI
Bill Flores, TX Vacancy
Andy Harris, MD
Jeffrey M. Landry, LA
Jon Runyan, NJ
Bill Johnson, OH
Mark Amodei, NV
Todd Young, Chief of Staff
Lisa Pittman, Chief Counsel
Jeffrey Duncan, Democrat Staff Director
David Watkins, Democrat Chief Counsel
------
SUBCOMMITTEE ON NATIONAL PARKS, FORESTS AND PUBLIC LANDS
ROB BISHOP, UT, Chairman
RAUL M. GRIJALVA, AZ, Ranking Democrat Member
Don Young, AK Dale E. Kildee, MI
John J. Duncan, Jr., TN Peter A. DeFazio, OR
Doug Lamborn, CO Rush D. Holt, NJ
Paul C. Broun, GA Martin Heinrich, NM
Mike Coffman, CO John P. Sarbanes, MD
Tom McClintock, CA Betty Sutton, OH
David Rivera, FL Niki Tsongas, MA
Scott R. Tipton, CO John Garamendi, CA
Raul R. Labrador, ID Edward J. Markey, MA, ex officio
Kristi L. Noem, SD
Bill Johnson, OH
Doc Hastings, WA, ex officio
------
CONTENTS
----------
Page
Hearing held on Tuesday,, November 15, 2011...................... 1
Statement of Members:
Bishop, Hon. Rob, a Representative in Congress from the State
of Utah.................................................... 1
Grijalva, Hon. Raul M., a Representative in Congress from the
State of Arizona........................................... 2
Prepared statement of.................................... 3
Statement of Witnesses:
Dahl, Hon. Demar, Chairman, Elko County Board of
Commissioners.............................................. 67
Prepared statement of.................................... 68
Dombeck, Dr. Mike, Former Chief, USDA Forest Service......... 73
Prepared statement of.................................... 75
Horngren, Scott W., Attorney, on behalf of the American
Forest Resource Council and Federal Forest Resource
Coalition.................................................. 22
Prepared statement of.................................... 24
Mumm, Greg, Executive Director, BlueRibbon Coalition......... 31
Prepared statement of.................................... 33
Porzak, Glenn, Attorney at Law, Porzak Browning & Bushong
LLP, on behalf of the National Ski Areas Association....... 71
Prepared statement of.................................... 72
Soulen Hinson, Margaret, President, Public Lands Council and
American Sheep Industry Association........................ 13
Prepared statement of.................................... 15
Stewart, Dr. Ronald E., National Association of Forest
Service Retirees........................................... 36
Prepared statement of.................................... 38
Tidwell, Thomas, Chief, U.S. Forest Service, United States
Department of Agriculture.................................. 4
Prepared statement on the USDA Forest Service Planning
Rule................................................... 6
Prepared statement on the Travel Management Rule......... 9
Prepared statement on Administration of Special Uses..... 10
VeneKlasen, Garrett, New Mexico Public Lands Coordinator,
Trout Unlimited............................................ 78
Prepared statement of.................................... 80
OVERSIGHT HEARING ON ``FOREST SERVICE REGULATORY ROADBLOCKS TO
PRODUCTIVE LAND USE AND RECREATION: PROPOSED PLANNING RULE, SPECIAL-USE
PERMITS, AND TRAVEL MANAGEMENT.''
----------
Tuesday,, November 15, 2011
U.S. House of Representatives
Subcommittee on National Parks, Forests and Public Lands
Committee on Natural Resources
Washington, D.C.
----------
The Subcommittee met, pursuant to call, at 10:09 a.m. in
Room 1324, Longworth House Office Building, Hon. Rob Bishop
[Chairman of the Subcommittee] presiding.
Present: Representatives Bishop, Duncan, Broun, McClintock,
Tipton, Labrador, Noem, Grijalva, Holt and Sarbanes.
Also Present: Representatives Amodei and Lummis.
Mr. Bishop. The Subcommittee will come to order. The
Chairman notes the presence of a quorum. The Subcommittee on
National Parks, Forests, and Public Lands is meeting today to
hear testimony on regulatory roadblocks that impact productive
land use and recreation in our national forests.
Under Committee Rule 4[f], the opening statements are
limited to the Chairman and the Ranking Member of the
Subcommittee so that we can hear from our witnesses more
quickly. However, I ask unanimous consent to include any other
Members' opening statements in the hearing record if submitted
to the clerk by the close of business today. Hearing no
objection, so ordered.
I also ask unanimous consent that the gentleman from
Nevada, Mr. Amodei, be allowed to sit on the dais and take part
in this proceeding when he arrives. Again, without objection,
so ordered.
STATEMENT OF HON. ROB BISHOP, A REPRESENTATIVE IN CONGRESS FROM
THE STATE OF UTAH
Mr. Bishop. Let me begin by simply saying Federal
regulations, particularly with regard to land use, is a topic
of a great deal of debate before this Subcommittee. Given the
Federal Government's ownership of over 600 million acres of
abundant and accessible natural resources and natural wonders,
we must be able to ensure that policies are put into place so
that we can wisely and prudently balance the many competing and
worthy uses of these lands and resources.
We continue that discussion today with the Forest Service
and actions the agency is taking with regard to the 155
national forests and 20 grasslands the public has entrusted to
its care. Those who come to join us on the panel and in the
audience today are on pins and needles--no pun intended--in
anticipation of the new planning rule that will dramatically
affect the way those 175 units manage their resources.
Going back almost two years in the development of the
proposed planning rule, many user groups and stakeholders have
called on the Forest Service to correct the many problems with
the Forest Service planning that led former Chief Dale Bosworth
to attribute the much used, yet appropriate, phrase ``analysis
paralysis'' to the management of our Federal lands.
However, as witnesses will tell us today, we fear that much
of this input has fallen on deaf ears as the rule that was
proposed on Valentine's Day of this year will continue, if not
exacerbate, the downward spiral of management of our national
forests. My fear is--to be honest, Mr. Tidwell, I am grateful
that you are here with us today--that we are on the road to a
confrontation between Congress and the Forest Service and
indeed those who live by these areas and use these areas if
some accommodations are not made and reconsidered.
Whether it is various insects and disease infestations,
unnaturally overgrown forest stands, catastrophic wildfire or
any combination of such, no one can deny that our national
forests are in dire straits. National forests are an important
and necessary source of economic activity and recreation for
local communities and the public. This resource needs to be
managed for the benefit of all the users--of all the users--and
this cannot be done under a planning process that leaves land
managers spinning their wheels on solutions in search of
problems and still winding up in court at the end of the day.
While I understand the agency has every intention of
finalizing a rule as we speak, I hope that the testimony
presented today will take into account to ensure that the final
planning rule works for the stakeholders and all stakeholders
that it intends to serve.
I notice the other day the Forest Chief did announce that
there would be a new committee to assist in the implementation
of the plan. My hope is also that you would use that group to
look at the rule itself and to see where there may be some
problems in that rule before you actually start on the
implementation of it.
I also look forward to hearing the testimony on the ongoing
implementation of the Travel Management Rule as well as recent
concerns with special use permits and water rights. My
colleague, Mr. Tipton, is here today, and recently he wrote
Secretary Vilsack a letter highlighting this issue that needs
to be addressed, desperately needs to be addressed. Water
rights are a sacred issue in the West, and any attempt to upset
the balance of state water law and primacy is something that
will be taken very seriously by this Congress.
With that, I thank our witnesses for being here, and I now
recognize the Ranking Member, Mr. Grijalva, for any opening
statement that he may have.
STATEMENT OF HON. RAUL M. GRIJALVA, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ARIZONA
Mr. Grijalva. Thank you, Mr. Chairman. Mr. Chairman,
Congress has tasked the Forest Service with a difficult
balancing act. Among the requirements placed on the agency in
the National Forest Management Act is ``coordination of outdoor
recreation, range, timber, watershed, wildlife and fish, and
wilderness.'' The Forest Service must determine forest
management systems, harvesting levels and procedures in the
light of all uses.
In passing such legislation, we in Congress have the luxury
of simply requiring the Forest Service to strive for balance
among a variety of competing and, at times, conflicting
multiple uses. The agency itself has to deal with achieving
such balance on the ground, in the real world, in thousands of
different resource management decisions on 225 million acres.
The Forest Service's Proposed Planning Rule, Travel
Management Rule, and system for issuing special use permits are
not perfect. Each is shaped by public input, scientific
research and litigation from a variety of types of plaintiffs
and the pros and cons of a bureaucratic decisionmaking process.
But while these and other Forest Service policies are not
perfect, they are also not part of a vast conspiracy to lock up
Federal land. They are not ill informed, nor are they developed
in secret.
A good use of our time today would be to question Chief
Tidwell, former Chief Dombeck, and the other witnesses
regarding how the latest versions of these policies were
developed and how they align with existing Congressional
mandates.
A poor use of our time today would be to play gotcha by
asking the Chief to respond to questions regarding the merits
of an individual road closure or specific use permits or
individual planning outcomes. To legislate on general
principles but then evaluate using specific, unproven anecdotes
is inherently unfair.
I look forward to hearing from my colleagues, from the
Chief, former Chief Dombeck and other witnesses joining us
today regarding the difficult balancing act in which the Forest
Service is engaged. The Proposed Planning Rule, Travel
Management Rule and special use permit system are works in
progress, and hopefully these and other tools will enable the
agency to achieve the significant goals set for the Forest
Service by Congress on behalf of the American people.
Thank you, Mr. Chairman. I yield back.
[The prepared statement of Mr. Grijalva follows:]
Statement of The Honorable Raul M. Grijalva, Ranking Member,
Subcommittee on National Parks, Forests and Public Lands
Mr. Chairman, Congress has tasked the Forest Service with a
difficult balancing act. Among the requirements placed on the agency in
the National Forest Management Act is ``coordination of outdoor
recreation, range, timber, watershed, wildlife and fish, and
wilderness.'' The Forest Service must ``determine forest management
systems, harvesting levels, and procedures in the light of all uses.''
In passing such legislation, we in Congress have the luxury of
simply requiring the Forest Service to strive for balance among a
variety of competing, and at times conflicting, multiple uses; the
agency itself has to deal with achieving such balance on the ground, in
the real world, in thousands of different resource management decisions
on 225 million acres.
The Forest Service's Proposed Planning Rule, Travel Management Rule
and system for issuing special use permits are not perfect; each is
shaped by public input, scientific research, litigation from a variety
of types of plaintiffs and the pros and cons of a bureaucratic
decision-making process.
But while these and other Forest Service policies are not perfect,
they are also not part of a vast conspiracy to ``lock up'' federal
land; they are not ill-informed nor are they developed in secret.
A good use of our time today would be to question Chief Tidwell,
former Chief Dombeck and the other witnesses regarding how the latest
versions of these policies were developed and how they align with
existing Congressional mandates.
A poor use of our time today would be to play gotcha by asking the
Chief to respond to questions regarding the merits of individual road
closures or specific use permits or individual planning outcomes. To
legislate on general principles, but then evaluate using specific,
unproven anecdotes is inherently unfair.
I look forward to hearing from my colleagues, the Chief, former
Chief Dombeck and the other witnesses joining us today regarding the
difficult balancing act in which the Forest Service is engaged.
The Proposed Planning Rule, Travel Management Rule and special use
permit system are works in progress and hopefully these and other tools
will enable the agency to achieve the significant goals set for the
Forest Service by Congress on behalf of the American people.
______
Mr. Bishop. Thank you, Mr. Grijalva. I appreciate that.
We now have the opportunity of hearing from the first panel
of witnesses that we have who have taken their place
appropriately at the table. We have from my left to right Chief
Tom Tidwell of the U.S. Department of Agriculture Forest
Service; Margaret Soulen-Hinson, who is the President of the
American Sheep Industry Association and the Public Lands
Council; Scott Horngren, who is with the American Forest
Resource Council, Federal Forest Resource Coalition; Greg Mumm,
who is the Executive Director of the Blue Ribbon Coalition; and
Dr. Ron Stewart, who is with the National Association of Forest
Service Retirees.
So we appreciate you all being here. Like all the witnesses
who will be here today, your written testimony is already
included in the record, so we will take your oral testimony at
times here.
First of all, for those of you who have not been here
before, the timers in front of you, your oral testimony has
five minutes to be given. The green means the time is on and
running down. When it hits yellow you have one minute left, and
when it is red you stop.
Now, Chief Tidwell, I realize that we are giving you three
different topics to talk at. If you would like a little bit of
extra time, I will understand that if you want to hit all three
topics first. If you want to do them individually, then we can
do that, assuming of course that bountiful is solved by the end
of the day as well as the rules being changed. Is that a fair
enough deal?
Mr. Tidwell. Yes.
Mr. Bishop. OK. Especially the bountiful part of it.
Mr. Amodei, we have already had unanimous consent to have
you join us on the panel. We appreciate you being here.
Mr. Amodei. Thank you, Mr. Chairman.
Mr. Bishop. If you would actually like to sit closer to us?
In fact, all of you don't have to be that far away. I did
shower this morning. If you would like to come closer, feel
free to do so.
All right. With that, Chief Tidwell, it is good to see you
again. Make sure you pull the microphone right up to you if you
would. We enjoyed you so much when you were working with us in
Utah. It is nice to have you back here in Washington. Go for
what time you need to go through all three of those issues.
STATEMENT OF TOM TIDWELL, CHIEF, U.S. FOREST SERVICE, UNITED
STATES DEPARTMENT OF AGRICULTURE
Mr. Tidwell. Well, thank you, Mr. Chairman, Members of the
Subcommittee. I also thank you for the opportunity to be here
today to discuss with you our proposed planning rule, the
Travel Management Rule that we have been implementing now for a
few years and then special use management on the national
forests.
First, I will talk about the proposed planning rule. We
need a planning rule that requires less process, it costs less
and still provides the same or greater level of protections
that the 1982 rule does. A lot has changed since 1982, and we
have been trying to revise the planning rule for two decades,
because early on we recognized the amount of unnecessary
analysis that was required in the 1982 rule.
The 1982 rule is very time-consuming, it is inefficient,
and on average it has taken five to seven years or much longer
to revise a forest plan. We need a new rule that focuses on
actively managing our forests to make the forests more
resilient to insect and disease outbreaks, to wildfire, to the
invasives we are experiencing today, while providing a full
range of multiple uses.
Now, to develop this new planning rule, this new framework,
we created the most open, transparent, collaborative process
ever tried to work with the public to develop this new rule. We
had numerous national, regional collaborative roundtables
around the country, along with the public forums in many of our
communities. We expanded the tribal consultation. This resulted
in over 300,000 comments on our proposed rule.
Now this rule will be better than the 1982 rule because it
reduces the time to complete a revision from that five to seven
years down to two to four years. It eliminates some of the
redundant, inefficient and unnecessary analysis that is
required in the 1982 rule. It eliminates alternatives that are
not even feasible and would never be considered. It eliminates
the requirement to determine population trends of some species
using management indicator species.
The new rule requires collaboration, public participation
throughout the process, and it focuses on restoration of our
forests and grasslands, not just on mitigation and restriction
like so much of the 1982 rule does. It provides for multiple
use objectives throughout the planning process, and it provides
for the active management that is necessary to restore our
forests and grasslands, provide the recreational opportunities,
provide the habitat for wildlife and fish, which is going to
result in more work, more jobs and healthier forests.
This proposed rule will address diversity by providing for
the ecological conditions, providing the habitat that supports
diversity, not from counting species. It will increase
monitoring while reducing our costs with monitoring, and it
provides for national consistency through required components
but allows the flexibility to develop these components to
address local conditions and will use a predecisional review
process instead of the time-consuming appeals process. This has
worked well for us with our Healthy Forest Restoration Act
projects, and it aligns very well with our collaborative
approach.
In 1982, we developed a rule to implement the National
Forest Management Act that focused on restricting activities,
mitigating impacts. This new rule will focus on restoring and
maintaining the health and resiliency of our forests and
grasslands. It is a rule that will require less process, it
will cost less and it will provide for that same or higher
level of protections.
Now, to move on to our Travel Management Rule, one of the
key opportunities provided in the National Forest System is for
outdoor recreation. At the Forest Service we manage over
373,000 miles of maintained roads and over 152,000 miles of
trails, but one of the issues with that travel system is the
resource impacts that occur not only from the roads but from
cross-country travel, and that is why back in 2005 Chief Fidel
Bosworth provided the direction for us to create the Travel
Management Rule that had two purposes.
The purpose of the rule is to provide a consistent approach
to providing for motorized recreational access by identifying a
system of motorized routes that are available for the public,
and will be available in the future, and reducing resource
impacts that were primarily from cross-country travel.
Now, about 77 percent of our forests have completed this
motorized vehicle use map that identifies a system of routes
and trails that is currently open, and now we continue to work
on identifying the proper sized road system that we need to be
able to access the national forests for management and for
recreational access.
And then in general, just on special uses at the Forest
Service we manage approximately 74,000 special use
authorizations and each year receive over 6,000 new
applications. We take a consistent approach with these by using
a set of terms and conditions to authorize lands that are
covered by special use permits. These terms and conditions are
designed to protect the public's interest, provide for public
safety and provide protections for water, fish and wildlife
habitat and recreational values.
These special uses provide a lot of benefits to the public,
whether it is communication towers where there are transmission
lines or a variety of recreational experiences that are
provided across the National Forest System. We expect that the
rate of applications is going to continue to increase, and we
will continue to have the challenge of timely processing of
applications.
It is one of the things that we rely on the cost recovery
rule that we have in place that allows us to be able to in some
cases recover some of the costs of processing these permits so
that we could be more timely and be able to provide much better
public service, and because of the cost recovery rule that we
have had in place now for almost 10 years we have significantly
reduced the backlog of applications and reduced the amount of
time to process these permits.
And with that, Mr. Chairman, thank you again for your time
this morning, and I look forward to answering your questions.
[The prepared statements of Mr. Tidwell follow:]
Statement of Thomas Tidwell, Chief of the USDA Forest Service,
Concerning ``Forest Service Regulatory Roadblocks to Productive Land
Use and Recreation: Proposed Planning Rule, Special-Use Permits, and
Travel Management''--Part 1: The USDA Forest Service Planning Rule
Mr. Chairman and members of the Subcommittee, thank you for the
opportunity to appear before you today to provide the Department's view
on the Forest Service's proposed planning rule, published on February
14, 2011. We appreciate the Subcommittee's interest in a matter of
great import to the Agency and Department.
As a result of extensive collaboration and public involvement, the
Forest Service received around 300,000 comments during the 90-day
public comment period on the proposed rule and draft environmental
impact statement. We have reviewed and analyzed the comments in the
development of the final rule. We expect to publish the final
environmental impact statement and final rule late this year or early
in 2012.
In the 193 million acres of forests, grasslands and prairies that
make up our National Forest System (NFS), the citizens of the United
States are blessed with some of the most diverse, beautiful, and
productive landscapes and watersheds on the planet. As required by the
National Forest Management Act of 1976 (NFMA), land management plans
for each forest and grassland provide a framework for integrated
resource management and guide project and activity decisionmaking on a
unit. The planning rule provides the overarching framework for
individual NFS units to use in developing, amending, and revising land
management plans to maintain, protect, and restore NFS lands while
providing for sustainable multiple uses.
Planning Rule History
Currently, the Agency is using the procedures of a planning rule
developed in 1982, which has guided the creation of every land
management plan, revision or amendment to date. However, over the past
thirty years, much has changed in our understanding of how to create
and implement effective land management plans, and in our understanding
of science and the land management challenges facing Forest
Supervisors.
Ecological, social, and economic conditions across the landscape
have altered. New best practices and scientific methods have evolved.
And so has the country's understanding of and vision for the multiple
uses and benefits provided by NFS lands.
Additionally, modifying land and resource management plans using
1982 rule procedures is often time consuming, costly and cumbersome.
Because of this, units often wait until circumstances require a
complete overhaul, rather than update plans incrementally, as new
information is obtained or conditions change. This approach has made it
challenging to keep plans current and relevant. Of the 127 land
management plans for NFS lands, sixty-eight are past due for revision,
meaning that they are fifteen years old or more.
Beginning as early as 1989, the Department and Forest Service have
made numerous attempts to review, revise and modernize the planning
rule. After two proposals in the 1990s, a final rule was published in
2000 to replace the 1982 regulations. That rule was challenged in
court, and an internal review concluded that the number and specificity
of its requirements were beyond the Agency's fiscal and organizational
capacity to successfully implement. A new planning rule was developed
and published in 2005, and a revised version in 2008, but each of those
rules was held invalid by a Federal District Court on grounds that it
violated National Environmental Policy Act requirements for analyzing
environmental impacts, among other findings. The 2000 rule, which was
never invalidated by a court, is the rule that is currently in effect.
The Forest Service is utilizing the transition provisions from the 2000
rule for plan revisions and amendments pending finalization of a new
rule. These transition provisions allow for use of the procedures from
the 1982 rule.
The instability created by the history of the planning rule has had
a significant negative impact on the Forest Service's ability to manage
the NFS and on its relationship with the public. At the same time, the
vastly different context for management and improved understanding of
science and sustainability that has evolved over the past three decades
creates an urgent need for a meaningful, durable, and implementable
21st century planning framework that will ensure that the Agency
responds to new challenges and management objectives for NFS lands in a
consistent way.
Collaboration and Public Participation
Because of the planning rule's history and the high degree of
interest in management of the NFS, the Department and Forest Service
decided to take a different approach to developing this new planning
rule. We strongly believe that involving the public through a
participatory, open, and meaningful process has been the best way to
develop the rule. Our goal has been to learn from the previous efforts,
and to listen to input from the public, Agency employees, other
governmental representatives, and internal and external scientists to
develop a rule that endures.. As a result, the proposed rule issued in
February 2011, and the final rule we are developing now, are the
product of the most participatory and transparent planning rule
development process in Forest Service history.
The development of the 2011 proposed rule was informed by 26,000
public comments made on the Notice of Intent (NOI); a Science Forum
with panel discussions from 21 scientists; regional and national
roundtables held in over 35 locations and attended by over 3,000
people; regional and national roundtables and 16 government-to-
government consultations with Tribes; and over 300 comments on a
planning rule blog developed to reach people online. The Agency and
Department also reviewed previous rules and planning efforts, current
science, and best practices being implemented on NFS lands; worked
closely with other agencies; and actively engaged and sought feedback
from Forest Service employees.
After the proposed rule was published in February 2011, we took the
unprecedented step of hosting another series of meetings to provide the
public with information about the proposal in order to help inform
their review of the proposed rule and the Draft Environmental Impact
Statement (DEIS). We held 29 national and regional public forums that
were attended by over 1,300 people. Some of these forums were presented
through video teleconferencing, reaching 74 locations across the
country in all. In total we received 300,000 comments on the proposed
rule and the DEIS during the 90-day comment period.
The Department and Forest Service believe that our approach and
commitment to meaningful public engagement sets a new standard for
public land management, and we are continually learning as we travel
this path. Above all else, as we saw so many people take the time to
come out to workshops on their local units, participate via the
internet, or submit comments, we have been gratified to see once more
how people truly cherish their National Forests and Grasslands and care
deeply about their management.
The New Rule
The Department and Forest Service used the input we received
through our public involvement process to develop the proposed rule and
DEIS, and we are currently working to make further improvements to the
rule based on the comments received on the proposed rule and DEIS.
Because the rule is currently in the clearance process, I cannot give a
definitive statement as to what the final rule will say.
That said, we believe the new rule will correct the inefficiencies
of the 1982 planning procedures and provide a modern framework for
planning in order to sustain and restore the health and resilience of
our National Forests. The goal is to produce an efficient planning
process to guide management of NFS lands so that they are ecologically
sustainable and contribute to social and economic sustainability, with
resilient ecosystems and watersheds, diverse plant and animal
communities, and the capacity to provide people and communities with a
range of social, economic, and ecological benefits now and for future
generations.
The planning framework in the new rule would help the Agency
provide clean water, habitat for diverse fish, wildlife, and plant
communities, opportunities for sustainable recreation and access, and a
broad array of other multiple uses of NFS lands, including for timber,
rangeland, minerals and energy as well as hunting and fishing,
wilderness, and cultural uses.
We intend to emphasize integrated resource management so that all
relevant elements of the system are considered as a whole, instead of
as separate resources or uses. We are considering the inclusion of
requirements in the new rule to sustain and restore the health and
resilience of our National Forests and watersheds. There would be a
strong emphasis on protecting and enhancing water resources, including
important sources of drinking water for downstream communities.
We are also considering the inclusion of requirements in the new
rule to provide for diversity of plant and animal communities, and
would be designed to provide habitat to keep common native species
common, contribute to the recovery of threatened and endangered
species, conserve candidate species, and protect species of
conservation concern. The new rule would provide the same or better
level of protection as the 1982 rule while removing the problematic
provisions of the 1982 procedures, such as requirements for management
indicator species (MIS), which have been proven cumbersome, ineffective
and do not reflect the latest science.
We are also considering the inclusion of requirements in the new
rule to contribute to social and economic sustainability. Plans would
be required to provide for sustainable recreation, and to protect
cultural and historic resources. Planning would consider and provide
for a suite of multiple uses, including ecosystem services, watershed,
wildlife and fish, wilderness, outdoor recreation, energy, minerals,
range, and timber, to the extent relevant to the plan area. Plans would
also guide the management of timber harvest on NFS lands.
The new rule would create a framework that allows adaptive land
management planning in the face of climate change.
We intend to create a more efficient and effective planning process
through an adaptive framework of land management assessment, planning
and monitoring. This framework is intended to assist Forest Supervisors
to adapt plans to reflect new information and changing conditions.
Information developed in each phase would inform the public and feed
into the next phase, building a strong base of information and public
input that would support a shared understanding of and vision for the
landscape. Responsible officials would then be able to using monitoring
data and other sources of information to amend plans and keep them
current and effective.
The new rule would strengthen public engagement throughout the
planning process, for which we are considering specification of
numerous opportunities for meaningful dialogue and input. Responsible
officials would be required to seek input from the public, consult with
Tribes, encourage participation by youth, low-income populations,
minority groups, and affected private landowners, and seek input from
and coordinate with related planning efforts by other government
entities including Tribes, States, counties, local governments, and
other Federal agencies.
Additional direction we are considering for the new rule would be
to use the most accurate, reliable and relevant scientific information
available to inform the planning process. The appropriate
interpretation and application of science provides the foundation for
planning, with other forms of information, such as local and indigenous
knowledge, public input, agency policies, results of monitoring, and
the experience of land managers also taken into account in determining
how to accomplish desired outcomes.
The strategy we are considering for monitoring under the new rule
would take place at the unit level and at a broader scale. Monitoring
would be a central part of both plan content and the planning process,
allowing responsible officials to test assumptions, track changing
conditions, measure effectiveness in achieving desired outcomes, and
feed new information back into the planning cycle so that plans and
management can be changed as needed.
We are also considering a requirement in the new rule that NFS
lands be managed in the context of the broader landscape. While the
Forest Service does not intend to and cannot direct management of lands
outside the NFS, under the new rule, responsible officials would use
assessments, monitoring and public engagement to create a continually
evolving understanding of conditions, trends, and stressors both on and
off NFS lands, and would work in the planning phase to respond to
changing conditions across the landscape, and coordinate, where
appropriate and practicable, with other land managers and owners to
accomplish shared objectives.
Conclusion
We received a wide variety of public comments on the proposed rule
and the draft environmental impact statement. We are coming to the end
of our work on finalizing the rule. We are committed to creating a
final rule that will help the Forest Service be more effective in its
task of restoring and protecting our natural resources, support
communities, and adapt to changing conditions. It represents our desire
to create a modern and efficient planning rule based on science, public
input, and Agency experience.
Management of America's 193 million acres of national forests and
grasslands is enormously important for present and future generations.
The Department's goal is a collaboratively developed, meaningful and
enduring planning rule and a more efficient, effective, and
participatory land management planning process.
This concludes my prepared statement, and I would be pleased to
answer any questions you may have.
______
Statement of Tom Tidwell, Chief, Forest Service, United States
Department of Agriculture, Concerning Forest Service Regulatory
Roadblocks to Productive Land Use and Recreation: Proposed Planning
Rule, Special Use Permits, and Travel Management--Part 2
Mr. Chairman and Members of the Subcommittee, thank you for the
opportunity to present the Agency's views regarding the administration
of special uses on National Forest System (NFS) lands.
The Forest Service manages approximately 74,000 special use
authorizations. Special use authorizations allow for the use of NFS
lands for numerous purposes to benefit the public. Types of special
uses range from communications sites, transmission lines, and other
energy-related uses to public service facilities such as ski areas,
resorts, and marinas to services such as outfitting and guiding. There
are 180 types of special uses.
Consistent with the Forest Service's statutory authorities to
manage NFS lands, special uses are authorized utilizing standard forms
that contain provisions to protect the environment, including fish and
wildlife habitat, air and water quality, and esthetic values; lives and
property; and other preexisting lawful users of NFS lands. In addition,
provisions in special use authorizations protect Federal property and
economic interests, provide for effective management of NFS lands, and
otherwise protect the public interest.
The special uses program provides significant public benefits.
Numerous energy-related pipeline and transmission line rights-of-way
cross NFS lands, and numerous relay towers for communications uses are
located on NFS lands. Private businesses and non-profit entities
provide approximately half of the recreation opportunities on NFS
lands, including 122 ski areas, 260 resorts, 76 marinas, 297
organizational camps, 294 concession campground operations, 5,000
outfitting and guiding operations, and nearly 1,000 recreation events
each year.
Some of these uses, such as pipeline and transmission line rights-
of-way, outfitting and guiding, and communications sites, are also
conducted on lands managed by the United States Department of the
Interior, Bureau of Land Management (BLM), under the same statutory
authority. The Forest Service coordinates extensively with BLM to
realize efficiencies and consistency in regulations, land use
instruments, and other aspects of management of these programs. Holders
of Forest Service and BLM land use authorizations benefit from this
interagency coordination.
Forest Service special uses generate approximately $76 million in
land use fees annually. The Forest Service is authorized to retain land
use fees charged for organizational camps, commercial filming,
outfitting and guiding, and recreation events to cover some of the
costs to administer those uses.
Special uses provide many benefits to the American public and are
one of the many ways that NFS lands provide resources and services.
Special uses provide business opportunities for large and small
companies, thereby serving the national and local economies. The public
benefits greatly from this program by receiving services which could
not be provided by the Forest Service.
This concludes my prepared statement and I would be pleased to
answer any questions you may have.
______
Statement of Tom Tidwell, Chief, Forest Service, United States
Department of Agriculture, Concerning Forest Service Regulatory
Roadblocks to Productive Land Use and Recreation: Proposed Planning
Rule, Special Use Permits, and Travel Management--Part 3
Mr. Chairman and members of the Subcommittee, thank you for the
opportunity to testify before you today on travel management on
National Forest System (NFS) lands. I would like to update the
Committee on the status of implementation of the Forest Service's
travel management rule. Thank you for this opportunity.
Background
The Forest Service manages 155 national forests and 20 national
grasslands, in 42 States and the Commonwealth of Puerto Rico. By law,
these lands are managed under multiple use and sustained yield
principles. The mission of the Forest Service is to sustain the health,
diversity, and productivity of America's forests and grasslands to meet
the needs of present and future generations. The Forest Service
oversees a vast and complex array of natural resources and land use
opportunities.
One of the key opportunities provided on NFS lands is outdoor
recreation. The most recent National Visitor Use Monitoring figures
show that the national forests and grasslands receive almost 171
million visits each year. Visitors participate in a wide range of
motorized and non-motorized recreational activities, including camping,
hunting, fishing, hiking, horseback riding, bicycling, cross-country
skiing, over-snow vehicle use, and operating off-highway vehicles
(OHVs). Annually approximately 11 million visitors engage in OHV
activities on NFS lands. Over-snow vehicle users and visitors driving
on forest roads for pleasure add to this total.
Travel Management
Nationally, the Forest Service manages over 200,000 miles of NFS
roads that are open to motor vehicle use. In addition, approximately
155,600 miles of trails are managed by the Forest Service, with an
estimated 37 percent or 57,500 miles of those trails open to motor
vehicle use, including over-snow vehicles.
This transportation system ranges from paved roads designed for
passenger cars to single-track trails used by motorized dirt bikes.
Many roads designed for high-clearance vehicles (such as logging trucks
and sport utility vehicles) also accommodate use by all-terrain
vehicles (ATVs) and other OHVs not normally found on city streets.
Almost all NFS trails serve non-motorized uses, including hiking,
bicycling, cross-country skiing and horseback riding, alone or in
combination with motor vehicle uses. National Forest System roads
accommodate non-motorized use as well.
National forests include public roads managed by state, county, and
local governments. These roads serve the commercial and residential
needs of local communities and private lands intermingled with and near
the lands we manage. Many county roads are cooperatively constructed
and maintained through cooperative forest road agreements executed
under the National Forest Roads and Trails Act. State and county roads
also provide access to NFS lands, and we continue to work in
cooperation with states and counties to manage our multi-jurisdictional
transportation system.
In the 1960s, recreational motor vehicle use on NFS roads was
relatively light compared with timber traffic. Today, recreational
motor vehicle use constitutes 90 percent of all traffic on NFS roads.
Much of the road system maintenance needs and resource damage concerns
are the result of continuous recreational use of roads originally
designed and constructed for controlled intermittent commercial use. We
consider capability to maintain roads in decisions to designate roads
for motor vehicle use.
The Travel Management Rule
In 2005, under Former Chief Dale Bosworth, the Forest Service
recognized unmanaged recreation as one of the four major threats to the
National Forests and Grasslands, and developed an approach to enhance
management of motor vehicle use on NFS lands. The Forest Service is
continuing to implement the 2005 Travel Management Rule. The travel
management rule has three subparts: Subpart A--Administration of the
Forest Transportation System; Subpart B--Designation of Roads, Trails,
and Areas for Motor Vehicle Use; and Subpart C--Use by Over-Snow
vehicles.
Unmanaged roads can create both safety and resource problems. Where
roads are no longer adequately maintained, erosion and silting into
channels is common. In national forests with a significant amount of
motor vehicle use, some users have created their own roads. These user-
created roads were never engineered properly, surveyed for potential
impacts, or vetted for need. Under certain conditions, these roads may
cause significant damage to the surrounding ecosystem, for example, by
channeling concentrated water flows that scour the forest floor and
deposit soils in watercourses. Additionally, since these roads were
never engineered, they may pose hazardous conditions that can pose
safety threats, such as poor sight distance for motorists, hikers, or
bikers navigating around a blind corner. The travel management rule is
a crucial step to address these concerns.
SUBPART A
Subpart A of the travel management rule requires each
administrative unit of the NFS to identify the minimum road system
needed for safe and efficient travel and for the protection,
management, and use of NFS lands. Identification of the minimum road
system includes identification of roads that are no longer needed to
meet forest resource management objectives and that may be
decommissioned or considered for other uses.
Identifying the minimum road system involves an interdisciplinary
and science-based travel analysis that is intended to identify
opportunities to increase or decrease the road system, as appropriate,
based on the unique ecological, economic, and social conditions in each
national forest or grassland. NFS roads of all maintenance levels must
be included in the travel analysis. Regional Foresters must certify for
completion the travel analysis reports for the administrative units
under their jurisdiction.
Subpart A is designed to work in conjunction with other frameworks
and processes, the results of which collectively inform future
decisions. These other frameworks and procedures include the Watershed
Condition Framework, the Framework for Sustainable Recreation, and
forest-wide planning under the National Forest Management Act.
Most administrative units have completed travel analysis or the
equivalent for passenger car roads. A small percentage of
administrative units have completed travel analysis for roads designed
for high-clearance vehicles and for roads used only intermittently.
SUBPART B
Subpart B of the Travel Management Rule requires Forest Supervisors
or other responsible officials to designate those roads, trails, and
areas where motor vehicle use is allowed in their administrative units
or ranger districts and to identify them on a motor vehicle use map
(MVUM). Once an MVUM is published for a unit or district, use in that
unit or district that is inconsistent with those designations is
prohibited. By the end of fiscal year 2011, 77 percent of
administrative units had designated roads, trails, and areas that are
open to motor vehicle use, and have published a motor vehicle use map.
The remaining units are actively engaged in completing their motor
vehicle use map.
The Travel Management Rule provides a nationally consistent
framework for local decision-making regarding motor vehicle use on NFS
lands. Decisions are made by local agency officials, who have greater
knowledge of the affected resources. Local decision-making also allows
for more effective participation by the public; local, county, state,
and other federal agencies; and Tribal governments. Under the travel
management rule the public must be given the opportunity to participate
in the designation process, thereby resulting in better decisions and
local support for them.
Implementation of Travel Management Decisions under Subpart B
Although completing the route and area designation process and
publishing MVUMs under Subpart B represents a tremendous amount of work
for the Forest Service and the public, these steps constitute only the
beginning of the process to actively manage motor vehicle use and to
provide sustainable motor vehicle recreational opportunities.
Forest Service public outreach efforts inform people how to
minimize their impacts with motor vehicles while enjoying the national
forests. Messages include staying on designated routes, being courteous
to other users, and being knowledgeable of agency regulations.
Education generally is provided by Forest Service employees, routinely
supplemented by the many volunteers and other partners. The Forest
Service's capability to inform and educate the public about where and
how they may operate motor vehicles is greatly enhanced by the many
hours of time provided by volunteers and partners.
Education works both ways. Many members of the public have
extensive historical and practical knowledge of the landscape.
Involving them in the process and learning from them are essential
elements of the dialogue.
Several national organizations assist the Forest Service with
disseminating educational messages about responsible recreational use.
The National Off-Highway Vehicle Conservation Council (NOHVCC) consists
of enthusiasts who promote responsible riding in many ways. The
American Motorcyclist Association partnered with the Motorcycle
Industry Council to produce a brochure on responsible riding. Tread
Lightly! is a non-profit organization whose mission is to protect
recreational access and opportunities through education and resource
stewardship. Tread Lightly! works with the Forest Service and other
land management agencies, manufacturers, industry, and motorized
vehicle recreation organizations to promote resource protection.
Although signs are no longer the primary tool for enforcement of
motor vehicle restrictions on NFS lands, signs remain a critical part
of OHV management in the NFS. Signs and route markers are installed, as
appropriate, to help the public understand where they may operate motor
vehicles on NFS roads, on NFS trails, and in areas on NFS lands.
The Forest Service will monitor designated routes and areas for
effects on natural and cultural resources, public safety, and conflicts
among uses, as well as consider input on the need for additional
opportunities for motor vehicle use. Monitoring may also focus on the
level of compliance and route conditions. Revisions to designations may
be made based on the results of monitoring.
SUBPART C
Subpart C provides for regulation of over-snow vehicles.
Designation of routes and areas for over-snow vehicles is
discretionary. Some Forests are moving ahead with this analysis, which
will help provide quality recreational experience, while minimizing
conflicts.
Mr. Chairman, this concludes my prepared statement. I would be
happy to answer any questions you or other members of the Subcommittee
may have.
______
Mr. Bishop. Thank you, Chief Tidwell. I appreciate you
being here.
Before our next witness speaks, I understand that her
congressman is here, Representative Labrador. If you would be
willing----
Mr. Labrador. Thank you, Mr. Chairman.
Mr. Bishop.--to introduce her, I would appreciate it.
Mr. Labrador. Thank you. Good morning. Chairman Bishop and
Ranking Member Grijalva, thank you for convening this important
hearing today. I would just like to welcome Margaret Soulen-
Hinson, who is a public lands rancher and the president of the
American Sheep Industry, for testifying at this hearing.
Margaret provides unique perspective and will serve as a
huge asset to this panel today. For generations, her family has
grazed sheep on public lands. She will provide a wealth of
information on the planning rule, and I would like to welcome
her today.
Today's topics are a high priority to me and to my
district. Public lands are a vital component of my district,
and I have made it a high priority to ensure that the multiple
uses of our Federal lands are protected. I fear that certain
uses are in jeopardy under the proposed forest planning rule.
This Administration continues to strap the American people
with additional burdensome regulations that will hinder our
economic growth. This planning rule in my opinion is another
example of this.
I look forward to listening to the input of Ms. Hinson and
our distinguished panel today. Thank you.
Mr. Bishop. Thank you.
STATEMENT OF MARGARET SOULEN-HINSON, PRESIDENT, AMERICAN SHEEP
INDUSTRY ASSOCIATION, PUBLIC LANDS COUNCIL
Ms. Soulen-Hinson. Well, Congressman Bishop and Ranking
Member Grijalva and Members of the Subcommittee, thank you for
inviting me to testify today.
As Congressman Labrador said, I am Margaret Soulen-Hinson,
and I am here to speak on behalf of the Public Lands Council,
who represents public lands ranchers across the West, about
22,000 of them. I also am here as a cattle and sheep producer
myself and as president of the American Sheep Industry
Association, who represents over 80,000 producers.
My family has a range sheep and cattle operation in Idaho,
spanning across eight counties. We run 8,000 head of sheep on
the Payette National Forest where we have a long history, three
generations, of cooperation with the Forest Service. Our
operation is comprised of a mix of our private lands, BLM,
state grazing leases, private land leases and our forest permit
on the Payette National Forest.
It is the makeup of all of these pieces that creates a
sustainable, year-round operation. As we move our sheep across
the landscape, we depend upon our Peruvian herders, who come to
this country to work so that they may provide for an education
for their children. Our foreman, Caesar A. Young, began working
for us when he was 17 years old. He has been with us for almost
30 years and became a U.S. citizen 10 years ago. His daughter
serves in the U.S. Air Force. I mention this because these are
the people who are the essence of our operation.
By 2013, we will be forced to remove 60 percent of our
sheep from our allotments on the Payette, which may well mark
the end of our family's 80-year-old sheep operation. This is
due to a very specific wildlife provision of the current
planning rule which calls for management of species viability
in forest planning areas. The term viability is a vague, ill-
defined term which appears nowhere in statute. It has been the
source of endless litigation and economic loss over the years.
Because of the perception that interaction between domestic
and big horn sheep in open range conditions may result in the
transfer of disease to big horns, enemies of grazing have been
able on grounds of viability to force the decision to remove 70
percent of domestic sheep from the Payette. Should a decision
such as the one on the Payette be implemented West-wide, we
would see a drastic reduction, even failure, of many American
sheep operations.
An estimated 23 percent of the entire domestic sheep
industry would be impacted, in turn destroying industry
infrastructure and threatening thousands of American jobs.
Nevermind that domestic sheep graze on less than 5 percent big
horn habitat or that promising vaccine research is underway as
we speak. Viability is a fleeting thing.
And if the draft rule is implemented, big horns are just
the tip of the iceberg. While the Administration has assured us
that the viability component is better in the draft rule
because it applies only to populations of species of
conservation concern, they are omitting four important facts.
First, there exists no scientifically based definition of
what qualifies a species of conservation concern. According to
the draft rule, the responsible official may designate them at
will, making the list of species to manage for viability
limitless.
Second, the draft rule would apply viability not just to
vertebrates, as in the current rule, but to all types of
species from fungus to slugs to moss. It will be impossible to
establish accurate population surveys for these thousands of
species. The result will be more litigation.
Third, the draft rules call for the best scientific
information and throws away the Lands Council decision that
judges must defer to the Forest Service as to what evidence is
or is not necessary to support wildlife viability analysis. The
burden of proof would lay with the Forest Service to show that
they used the best science, a litigation landmine.
Finally, while we may argue details, perhaps the most
important note is that viability is not within the statutory
authority of the Forest Service. Statute requires management
for multiple use and says nothing about species viability. We
recommend the Forest Service remove entirely the term viability
and leave wildlife management to the states as required by
statute. The agency should focus not on individual species
viability but on providing for habitat.
In closing, the preamble of the proposed rule says that
social, environmental and economic considerations cannot be
ranked in order of importance, implying that they should be
considered equally. I wish the actual proposed rule reflected
that spirit. For generations, ranchers have depended on and
nurtured the same resources our wildlife depend upon. Entire
communities across the West and a sizable portion of our
national economy hinge on the continued multiple use of our
national forests.
Let us come up with a better rule, one to replace the 29-
year-old outmoded rule of 1982, but let us not replace hard-
working ranching families with regulations that are impossible
to implement. Thank you, and I would be happy to answer any
questions the Committee may have later.
[The prepared statement of Ms. Hinson follows:]
Statement of Margaret Soulen Hinson, Public Land Rancher and ASI
President, Public Lands Council & American Sheep Industry Association
Dear Chairman Bishop, Ranking Member Grijalva and Members of the
Subcommittee:
The Public Lands Council (PLC) and American Sheep Industry
Association (ASI) appreciate the opportunity to voice to the
Subcommittee on National Parks, Forests and Public Lands our concerns
regarding the United States Forest Service's proposed forest planning
rule (see 76 Fed. Reg. at 8480 (Feb. 14, 2011)). To date, we have
provided written comments to the Forest Service and participated in
multiple public hearings so as to provide insights as to the impacts
the proposed rule is likely to have on public lands grazing. Despite
our concerns and calls from Congress to revise the proposed rule,
indications from the administration are that they are committed to
moving forward with a largely unchanged final rulemaking, some time
within the next two months. This is a major rulemaking that, by the
agency's own projection, will cost more than $100 million per year to
implement, and will impose far-reaching regulatory burdens on
businesses and rural communities. Such a rulemaking should not be made
in haste, but rather given the oversight and deliberation of
congressional review.
On February 14, 2011, the United States Forest Service published a
notice of proposed rulemaking and request for comment in the Federal
Register. See 76 Fed. Reg. at 8480 (Feb. 14, 2011). The Forest Service
is proposing a new planning rule (``Proposed Rule'') to guide land and
resource management planning for all units of the National Forest
System (``NFS'') under the National Forest Management Act (``NFMA'').
Id. at 8480. Along with the Proposed Rule, the Forest Service released
a draft programmatic environmental impact statement (``DPEIS'') to
analyze the effects of the Proposed Rule and other alternatives under
the National Environmental Policy Act (``NEPA''). See Draft
Programmatic Environmental Impact Statement, National Forest System
Land Management Planning (Feb. 2011), available at http://
www.fs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb5274118.pdf. PLC and
ASI's comments are in regard to the Proposed Rule as well as the DPEIS.
Please include this statement in the congressional record.
PLC and ASI have thousands of members who are public land ranchers
and who are involved in managing natural resources throughout the West
every day. Public land ranchers own over 100 million acres of the most
productive private land in the West and manage vast areas of public
land, accounting for critical wildlife habitat and a significant
portion of the nation's natural resources. PLC and ASI work to maintain
a stable business environment in which livestock producers can conserve
the resources of the West while producing food and fiber for the nation
and the world.
The proposed rule is not consistent with the ``Improving Regulation
and Regulatory Review'' Executive Order issued on January 18, 2011 by
President Obama, as well as previously existing requirements for cost-
effective, less burdensome, and flexible regulations, such as the
Regulatory Flexibility Act. The January 18, 2011 Executive Order
requires that regulations be tailored to ``impose the least burden on
society, consistent with regulatory objectives'' and that agencies are
to review and change or eliminate rules that may be ``outmoded,
ineffective, insufficient, or excessively burdensome.'' Yet the Forest
Service's own analysis of the proposed rule confirms that even under
favorable assumptions, it will be only slightly less costly than the
1982 Planning Rule that has been identified as outmoded and overly
burdensome--i.e. approximately $1.5 million less per year than the $104
million annual cost of the 1982 Rule. DPEIS at 43.
The DPEIS and accompanying analysis for the proposed rule confirm
that there are readily available alternatives that are far less costly
and burdensome, alternatives which still meet NFMA requirements and the
agency's stated purpose and need for a new Planning Rule.
For example, Alternative C in the DPEIS would, according to the
Forest Service analysis, cost nearly $24 million (24%) less to
implement per year than the proposed rule. DPEIS at 43. As another
example, the 2008 Planning Rule contains most of the same basic
concepts as the proposed rule but is only half the length of the
proposed rule (7 pages of Federal Register text compared to 14 pages
for the proposed rule). The 2008 Rule has its flaws, but was enjoined
by a federal district court only for procedural shortcomings in the EIS
and Endangered Species Act Section 7 consultation completed for the
rulemaking, and not for any inadequacy in meeting NFMA requirements.
Citizens for Better Forestry v. U.S. Dept. of Agriculture, 632
F.Supp.2d 968 (N.D. Cal. 2009).
The overly detailed, burdensome rhetoric and mandates in the
proposed rule can be eliminated without any loss of useful, nationwide
programmatic guidance for national forest land management planning.
Detail regarding basic concepts and requirements in the Planning Rule
can and should be, instead, included in the Forest Service Manual and
Handbook directive system (``FSM/FSH''), where it can guide and
facilitate national forest planning rather than burden the agency,
national forest users, dependent communities, and taxpayers with
unnecessary detailed, restrictive, and confusing regulatory mandates.
It is more consistent with the adaptive management approach
incorporated in the proposed rule to include such details in the
directive system, where content can more easily be clarified, refined
and updated than when promulgated as a formal rule in the Code of
Federal Regulations. The difficulty of updating overly burdensome
published regulations is confirmed by the persistence of the 1982 Rule
for nearly thirty years, despite several past attempts to replace it.
As an example of material that belongs in the FSM/FSH, most if not
all of the content in the ``sustainability'' and ``diversity of plant
and animal communities'' sections of the proposed rule is already
included in substantially similar form in FSM ID No. 2020-2010-1,
Ecological Restoration and Resilience, and FSH 1909.12-2000-5, Chapter
40--Science and Sustainability.
Section 219.1(d) of the proposed rule already requires the Forest
Service to establish procedures for Planning Rules in the FSM/FSH. Much
of the detailed content in the proposed rule, with appropriate
modifications to simplify and conform it to NFMA and Multiple Use
Sustained Yield Act (``MUSYA'') principles, can be moved to the FSM/FSH
with ease.
The complexity of the rule and how it will increase confusion and
cost is illustrated by its treatment of wildlife. The planning rule and
its preamble include multiple categories of species: indicator, focal,
keystone, ecological engineers, umbrella, link, species of concern,
threatened, endangered, and ``others.'' Some of the species are
probably mutually exclusive but other species overlap, creating a
planning nightmare. The forest planning rule should be focused on
habitat, a factor over which it has some control.
The Proposed Rule Ignores the Appropriate Role of Multiple-Use:
Though occasionally referenced in the proposal, the Forest Service
appears to be ignoring its multiple use mandate, a mandate imposed by
Congress, codified in agency regulations and affirmed by the courts.
This problem manifests itself in three ways. First, the proposal fails
generally to acknowledge the multiple use mandate as a guiding
principle of forest planning. Second, proposed provisions specifically
conflict with the multiple use mandate. Third, the proposed definition
of ``ecosystem services'' is so inclusive and vague that it dilutes the
entire concept of multiple use.
Congress established the NFS through the Organic Administration Act
of 1897, 30 Stat. 11 (June 4, 1987). By operation of the Transfer Act
of 1905, 33 Stat. 628 (Feb. 1, 1905), stewardship of the national
forests was transferred from the Department of the Interior to the
Department of Agriculture. Over the next decades, Congress consistently
and clearly specified through a number of enactments that stewardship
over the national forests would be guided by the principles of multiple
use and sustained yield. These statutes, all of which endorse multiple
use and sustained yield, include the MUSYA, 16 U.S.C. Sec. Sec. 528-31;
the Forest and Rangeland Renewable Resources Planning Act of 1974, 16
U.S.C. Sec. Sec. 1600-14; and NFMA, 16 U.S.C. Sec. 1600 et seq.
``Multiple use'' is defined in Section 4 of the MUSYA as: the
management of all the various renewable surface resources of
the national forests so that they are utilized in the
combination that will best meet the needs of the American
people; making the most judicious use of the land for some or
all of these resources or related services over areas large
enough to provide sufficient latitude for periodic adjustments
in use to conform to changing needs and conditions; that some
land will be used for less than all of the resources; and
harmonious and coordinated management of the various resources,
each with the other, without impairment of the productivity of
the land, with consideration being given to the relative values
of the various resources, and not necessarily the combination
of uses that will give the greatest dollar return or the
greatest unit output.
16 U.S.C. Sec. 531
The multiple use sustained yield statutory mandate is a viable and
credible planning blueprint for managing forest lands. Although the
Forest Service is required to ensure that multiple use remains on par
with sustainability concepts, the overview of the proposed rule clearly
prioritizes other areas of consideration that the rule must address,
including climate change, forest restoration and conservation, wildlife
conservation, and watershed protection, before so much as mentioning
the need for the rule to meet the statutory requirements of the NFMA,
MUSYA and other legal requirements. Additionally, the sustainability
section expressly states that ``sustainability is the fundamental
principle that will guide land management planning.'' See 76 Fed. Reg.
at 8490. Such statements clearly reflect a lack of acknowledgement on
the part of the Forest Service of the important function multiple use
must play in the land planning process.
As appropriately concluded by the U.S. Court of Appeals for the
Seventh Circuit, the Forest Service does not have the discretion to
ignore the multiple use mandate to focus solely on environmental and
recreational resources. The court specifically held that ``the national
forests, unlike national parks, are not wholly dedicated to
recreational and environmental values.'' Cronin v. United States
Department of Agriculture, 919 F.2d 439, 444 (7th Cir. 1990). The
Forest Service, through the planning rule, must actively promote this
stewardship role delegated to it by Congress in legislation spanning
more than a century and consistently upheld by the courts. The proposal
fails to adequately do so.
The Proposed Rule Goes Beyond Statutory Authority with ``Viability'' of
Species:
The Forest Service's Proposed Rule does not comply with NFMA and
MUSYA, which provide the agency's land management planning authority.
Neither of these statutes require the Forest Service to manage for
species ``viability'' through land management planning. Rather, the
Forest Service is tasked with providing for ``diversity of plant and
animal communities,'' along with providing for other multiple use
objectives. And, the statutes are clear that providing for diversity
does not take precedence over providing for other forest resources,
such as range resources.
Managing for ``diversity of plant and animal communities'' under
NFMA means managing for habitat diversity and does not include a
requirement to maintain ``viable'' populations of ``species of
conservation concern'' or otherwise maintain and restore species'
populations. Various state wildlife agencies have constitutional and
statutory duties to protect the viability of species and manage
species' populations. NFMA's diversity requirement is limited to
protecting habitat and can be met by establishing a plan that provides
appropriate ecological conditions for plant and animal communities.
That should be the focus of the Forest Service's Proposed Rule.
PLC and ASI are concerned that the Forest Service's divergence from
its authority under NFMA and the MUSYA will elevate the objective to
provide for diversity of plant and animal communities above other
objectives, particularly the objective to provide for range resources.
Without revision, the Proposed Rule could limit grazing on public lands
which would adversely affect the operations of our members and result
in decay of both private and public lands managed by those members. As
a result, PLC and ASI have recommended that the Forest Service revise
the Proposed Rule to address the issues presented in these comments.
The Proposed Rule Must Comply with NFMA and the MUSYA:
The Forest Service's new planning rule must meet requirements under
NFMA, 16 U.S.C. Sec. Sec. 1600-1614, as well as allow the agency to
meet its obligations under the MUSYA, 16 U.S.C. Sec. Sec. 528-531. NFMA
provides that ``[i]n developing, maintaining, and revising plans for
units of the National Forest System. . .the Secretary shall assure that
such plans--(1) provide for multiple use and sustained yield of the
products and services obtained therefrom in accordance with the
[MUSYA], and, in particular, include coordination of outdoor
recreation, range, timber, watershed, wildlife and fish and wilderness.
. ..'' 16 U.S.C. Sec. 1604(e). The MUSYA provides that ``[i]t is the
policy of the Congress that the national forests are established and
shall be administered for outdoor recreation, range, timber, watershed,
and wildlife and fish purposes.'' Id. Sec. 528. In other words, the NFS
is to be administered for ``multiple use,'' which includes
administration of range resources, along with administration of
wildlife. See id. Sec. 1604(e)(1); id. Sec. 528; id. Sec. 531(a)
(defining ``multiple use''). Wildlife has never been and should not
become the Forest Service's only consideration when developing land
management plans for NFS lands.
NFMA also provides that Forest Service planning regulations shall
include guidelines for land management plans which:
(A) insure consideration of the economic and environmental
aspects of various systems of renewable resource management,
including the related systems of silviculture and protection of
forest resources, to provide for outdoor recreation (including
wilderness), range, timber, watershed, wildlife, and fish;
[and]
(B) provide for diversity of plant and animal communities
based on the suitability and capability of the specific land
area in order to meet overall multiple-use objectives. . ..
Id. Sec. 1604(g)(3)(A)-(B).
Along with consideration of economic aspects of management, the
Forest Service must provide for diversity of plant and animal
communities to the extent a specific land area is suitable for and
capable of such multiple use objective. Id.
Although NFMA and MUSYA require consideration of multiple use
objectives, including consideration of range resources, the Proposed
Rule is focused largely on maintenance and restoration of wildlife. See
76 Fed. Reg. at 8518-19 (Sec. Sec. 219.8-219.10). This focus ignores
the Forest Service's multiple use mandate. Administration of the NFS
for range resources is not simply to be considered when administering
the system for wildlife, see id. at 8519 (Sec. 219.10). Rather,
administration of the System for range resources is an equally
important purpose that the Forest Service must consider on equal
footing with, not simply in addition to, wildlife. See 16 U.S.C.
Sec. 528. The Forest Service must insure that its management of the NFS
provides for range resources. Id. Sec. 1604(g)(3)(A).
The Proposed Rule provides an entire section (Sec. 219.9) to
implement NFMA Section 1604(g)(3)(B) concerning wildlife, but ignores
NFMA Section 1604(g)(3)(A) concerning other forest resources. To
properly implement Section 1604(g)(3)(A), the Forest Service must give
equal treatment to other forest resources in the Proposed Rule. See 76
Fed. Reg. at 8519 (mentioning consideration of other forest resources
in Sec. 219.10). Accordingly, the Forest Service should revise the
Proposed Rule to adequately consider and provide for all of the Forest
Service's multiple use objectives, including the consideration and
provision of range resources.
The ``Viable Population'' Requirement Should Not Be Included as Part of
the Proposed Rule:
Neither NFMA nor MUSYA require the Forest Service to manage for
wildlife ``viability'' when developing plans for the NFS. Certainly,
there is no statutory requirement for the Forest Service to
``maintain'' species viability, or manage for species viability to the
detriment of other multiple use objectives.
Although NFMA and the MUSYA do not require the Forest Service to
manage for species viability, the Proposed Rule provides that land
management plans ``must provide for the maintenance or restoration of
ecological conditions in the plan area to. . .[m]aintain viable
populations of species of conservation concern within the plan area.''
See 76 Fed. Reg. at 8518 (Sec. 219.9(b)(3)). Further, the Proposed Rule
states: ``[w]here it is beyond the authority of the Forest Service or
the inherent capability of the plan area to do so, the plan components
must provide for the maintenance or restoration of ecological
conditions to contribute to the extent practicable to maintaining a
viable population of a species within its range.'' Id.
Because maintenance of ``viable populations of species'' is not a
requirement under NFMA or MUSYA, the Forest Service is exceeding its
authority under those statutes by making it a requirement under the
Proposed Rule. Likewise, the Forest Service is exceeding its authority
under those statutes by requiring ``restoration'' of ecological
conditions for species viability. To be consistent with its authority
under NFMA and MUSYA, the Proposed Rule should be revised to eliminate
the concept of species viability as a management requirement.
Besides lacking statutory authority, the concept of species
viability is itself impermissibly vague. Scientists often disagree on
when, and on what level, a population is considered ``viable.'' There
is additional disagreement on how species viability is to be
``maintained'' or ``restored.'' How can the Forest Service measure and
prove that it is ``maintaining'' or ``restoring'' species viability?
Although the Proposed Rule defines the term ``viable population,'' the
definition provides little in the way of hard-and-fast standards to
measure species viability. Id. at 8525 (Sec. 219.19). Laws must provide
explicit standards to the regulated community for the community to know
what is prohibited, so that it may act accordingly, and to prevent
arbitrary and discriminatory enforcement. See Grayned v. Rockford, 408
U.S. 104, 108 (1972); Roberts v. United States Jaycees, 468 U.S. 609,
629 (1984). The Forest Service's regulations on species viability in
the Proposed Rule fail to meet these standards.
Use of the concept of species viability is likely to subject the
Forest Service to litigation over the agency's authority to utilize the
concept and over the meanings of ``viability,'' ``maintenance'' and
``restoration.'' These issues have been the source of considerable
litigation in the past. See, for example, Lands Council v. Cottrell,
731 F. Supp. 2d 1028 (D. Idaho 2010); Oregon Natural Resources Council
Fund v. Goodman, 382 F. Supp. 2d 1201 (D. Or. 2004), affirmed 110 Fed.
Appx. 31; Utah Environmental Congress v. Bosworth, 370 F. Supp. 2d 1157
(D. Utah 2005), affirmed 443 F.3d 732; The Lands Council v. McNair, 537
F.3d 981 (9th Cir. 2008), rehearing en banc denied.
In order to act within its authority under NFMA and MUSYA and avoid
potential litigation, the Forest Service should remove the ``viable
population'' requirement from the Proposed Rule. Measuring species'
populations is not required by NFMA or MUSYA and should not be the
focus of the Proposed Rule. Establishing means to accurately inventory
thousands of species populations is an untenable proposition. The
Forest Service should leave wildlife management to the various state
wildlife agencies that have constitutional and statutory duties to
manage species' populations and protect the viability of species. The
Proposed Rule should concentrate on providing for habitat diversity,
which would better meet NFMA's requirement to ``provide for diversity
of plant and animal communities.'' 16 U.S.C. Sec. 1604(g)(3)(B). And,
the Proposed Rule should focus on providing habitat diversity as one
component of the Forest Service's multiple use management approach, not
the only component.
The Proposed Rule Should Better Define ``Species of Conservation
Concern'':
The Proposed Rule's ``viable population'' requirement applies to
``species of conservation concern.'' See 76 Fed. Reg. at 8518
(Sec. 219.9(b)(3)). ``Species of conservation concern'' are defined as
``[s]pecies other than federally listed threatened or endangered
species or candidate species, for which the responsible official has
determined that there is evidence demonstrating significant concern
about its capability to persist over the long-term in the plan area.''
Id. at 8525 (Sec. 219.19).
By eliminating the ``viable population'' requirement from the
Proposed Rule, the definition of ``species of conservation concern''
may be unnecessary. However, if the definition remains part of the
Proposed Rule, it should be revised. This definition does not provide a
science-based standard for determining species of conservation concern.
Instead, the definition relies solely on the opinion of the responsible
official to determine which species should be designated as a species
of conservation concern. As it stands, the definition is likely to lead
to arbitrary and capricious decision-making.
The definition of ``species of conservation concern'' should be
revised to provide science-based evidentiary standards for determining
when a species is a ``species of conservation concern.'' The definition
should indicate what ``evidence'' is required for such determination
and define what is meant by ``significant concern.'' The ``evidence''
and ``significant concern'' should be based on credible scientific
information available to the Forest Service and not simply on the
opinion on the responsible official.
Further, the need and authority for the Forest Service to designate
species of conservation concern should be adequately discussed if the
Forest Service decides to retain the designation in its planning rule.
Additionally, the Forest Service should explain in the rule whether or
not the designation applies to all species of wildlife and plants, or a
more limited subset of species, such as vertebrate species. The DPEIS
suggests that the designation applies to all species of wildlife and
plants. See DPEIS at 109 (``the focus for maintaining viable
populations is extended to all native plant and animal species, not
just vertebrate species''). Expanding the designation to encompass all
species of wildlife and plants would apply the regulation to species
that may not have been previously covered. This would likely increase
litigation, since instead of applying to vertebrate species like the
current planning rule, plan requirements would apply to a host of
additional species, including invertebrates such as fungi, slugs, and
insects. The Proposed Rule should be revised to discuss the authority
for such expansion and the DPEIS should analyze the effects of the
additional protections, including effects on other forest resources and
Forest Service staffing and budgets.
Finally, the DPEIS suggests that the viability requirement would be
extended to ``at-risk species'' on national forests and grasslands.
DPEIS at 110 (plans would ``include additional species-specific plan
components needed to maintain viability of at-risk species on national
forests and grasslands''). This extension of the viability requirement
is not mentioned in the Proposed Rule, but should be if the Forest
Service intends for it to be part of the rule. As with ``species of
conservation concern,'' the Forest Service should discuss its authority
for extending protections to ``at-risk species,'' define the term in
the rule and analyze the effects of the additional protections in the
DPEIS. Because ``at-risk species'' are not discussed in the Proposed
Rule or adequately analyzed in the DPEIS, the Forest Service should
either entirely eliminate the term and associated protections from the
rule and DPEIS or revise the rule and DPEIS to discuss the term, how
``at-risk'' would be objectively determined, and associated
protections.
Requiring the Use of the ``Best Available Scientific Information'' Will
Make Decision-making Time Consuming and Vulnerable to
Litigation:
Sound science has an important role in Forest Service planning and
management. However, decisions should be made based on agency expertise
and available, relevant science, rather than on the ``best available
science'' as referenced in Sec. 219.3. Which science is ``best,'' as
illustrated in ESA litigation as well as NFMA and other disputes, can
be extremely subjective and highly politicized.
NFMA does not use or require use of the term ``best available
science'' or ``best available scientific information.'' Neither does
NEPA. The Ninth Circuit Court of Appeals has affirmed that these
statutes do not require a determination of whether national forest
planning or project-level NEPA documents are based on ``best''
available science or methodology; that disagreements among scientists
are routine; and that requiring the Forest Service to resolve or
present every such disagreement could impose an unworkable burden that
would prevent the needed or beneficial management. Lands Council v.
McNair, 537 F.3d 981, 991 (9th Cir. 2008)(en banc); Salmon River
Concerned Citizens v. Robertson, 32 F.3d 1346, 1359 (9th Cir. 1994).
The Proposed Rule's procedures will create new legal claims centered on
the requirement that the Forest Service consider the ``best
available science'' and demonstrate that the ``most accurate,
reliable, and relevant information'' was considered and how it
``informed'' the development of the forest plan (Sec. 219.3).
In Lands Council, a unanimous en banc panel of the Ninth
Circuit gave the Forest Service more leeway and flexibility
regarding scientific analysis. The Court emphasized that,
``[t]o require the Forest Service to affirmatively present
every uncertainty in its EIS would be an onerous requirement,
given that experts in every scientific field routinely
disagree; such a requirement might inadvertently prevent the
Forest Service from acting due to the burden it would impose.''
McNair, 537 F.3d at 1001.
Second, the Proposed Rule is written in a way that puts the burden
on the Forest Service to prove that it identified the best science,
``appropriately'' interpreted it, and explain how it informed the
decision (Sec. 219.3). This places the burden of proof on the agency,
whereas we believe that the burden to prove that the Forest Service was
arbitrary and capricious in its decision-making should remain with
plaintiff.
Third, the science-dominated Proposed Rule undermines the
principle, supported by case law, that the agency can make natural
resource management decisions based on its discretion in weighing
various multiple use objectives. In Seattle Audubon Society v. Moseley,
830 F.3d 1401, 1404 (9th Cir. 1996), the court upheld selection of an
alternative in the Northwest Forest Plan that provided an 80% rather
than 100% probability of maintaining the viability of the spotted owl
because ``the selection of an alternative with a higher likelihood of
viability would preclude any multiple use compromises contrary to the
overall mandate of the NFMA.'' The Ninth Circuit in the Mission Brush
case finally recognized that ``[c]ongress has consistently acknowledged
that the Forest Service must balance competing demands in managing
National Forest System lands. Indeed, since Congress' early regulation
of the national forests, it has never been the case that `the national
forests were. . .to be set aside for non-use'.'' McNair, 537 F.3d at
990.
Fourth, sound national forest planning and management that complies
with NFMA, the MUSYA, and other applicable laws must reflect more than
``western'' or European culture academic science and scientist opinion.
Native American and other traditional local knowledge, along with other
practical expertise, collaborative consensus reached through the
planning process regarding application of science, and other
considerations are critical to environmentally, economically, and
socially sound forest planning and plan implementation.
Thus, the Proposed Rule must not require the Forest Service to do
more than take into account available, relevant scientific information
along with other factors in the development, amendment, or revision of
national forest plans, without reference to which information is
``best'' (Sec. 219.3). Sec. 219.3 should be deleted or greatly
abbreviated and corrected accordingly, along with any other references
to ``best available scientific information'' in the Proposed Rule.
The use and dissemination of scientific information by federal
agencies is addressed by the Federal Data Quality Act (44 U.S.C.
Sec. 3516) and subsequent guidelines from the Office of Management and
Budget (http://www.whitehouse.gov/omb/fedreg_reproducible). We believe
the protections and assurances provided by the Federal Data Quality Act
are sufficient to ensure the quality of the data used and distributed
by the Forest Service in the planning process. A requirement to
identify the ``most accurate'' or ``best available'' scientific
information should not be a legal requirement in the planning rule
itself.
The Proposed Rule Makes Overly Broad Requirements for Riparian Area
Protection:
PLC and ASI find infeasible the provision that requires that each
plan ``must include components to maintain, protect, or restore
riparian areas.'' (Sec. 219.8(a)(3)). Every plan ``must establish a
default width''--in other words, an arbitrary buffer zone--around ``all
lakes, perennial or intermittent streams, and open water wetlands.''
(Sec. 219.8(a)(3)). The example given in the preamble of the draft rule
calls for a buffer zone of 300 feet on each side of a perennial stream.
Limitations such as this have the strong potential not only to greatly
reduce livestock forage and watering access, it also threatens our
members' adjudicated water rights.
The Proposed Rule Wrongly Elevates Ecological Sustainability over
Social and Economic Concerns:
In the explanation of the Proposed Rule, the Forest Service states
that ``[t]he proposed rule considered the ecological, social, and
economic systems as interdependent systems, which cannot be ranked in
order of importance.'' See 76 Fed. Reg. at 8491. However, in the same
section of the Proposed Rule explanation, the Forest Service goes on to
state that ``the agency has more influence over the factors that impact
ecological sustainability on NFS lands (ecological diversity, forest
health, road system management, etc.) than it does over factors that
impact social and economic sustainability (employment, income,
community well-being, culture, etc.).'' Id.
The Proposed Rule goes on in Sec. 219.8 to give disparate treatment
to environmental systems versus social and economic systems. It
requires forest plan components to ``maintain or restore the structure,
function, composition, and connectivity of healthy and resilient
terrestrial and aquatic ecosystems and watersheds in the plan area. .
..'' (emphasis added) while requiring only that the plan include
components ``to guide the unit's contribution to social and economic
sustainability. . ..'' (emphasis added) (Sec. 219.8(a),(b)). We support
the initial assertion of the agency that social, environmental and
economic considerations are not competing values, and believe that, by
practicing active forest management, the Forest Service is in a
position to have a substantial impact on all elements of
sustainability--ecological, social and economic. We request that the
Proposed Rule recognize this influence.
The Proposed Rule Inappropriately Gives ``Protection'' Status to
Recommended Wilderness:
Only Congress can create Wilderness (16 U.S.C Sec. Sec. 1131-1136,
Id. Sec. 1132(b)). The Forest Service should not create de facto
wilderness by requiring, as would the Proposed Rule, that any area
``recommended for wilderness'' be ``protected'' (Sec. 219.10 (b)(iv)).
Nothing in the Proposed Rule Explicitly States that the Forest Service
May Continue to Operate under Existing Plans until the New
Plans Are Completed and Survive Any Legal Challenges:
NFMA explicitly provides that ``[u]ntil such time as a unit of the
National Forest System is managed under plans developed in accordance
with this Act, the management of such unit may continue under existing
land and resource management plans.'' 16 U.S.C. 1604(c). To avoid
disruption of existing contracts, account for the inevitable legal
challenges, and to be consistent with NFMA, the Proposed Rule should
provide that the Forest Service operate under existing plans until all
challenges to the new plans are resolved.
The New Requirement that the Plan Provide Opportunities for ``Spiritual
Sustenance'' Is Unattainable and outside AgencyAuthority:
In the Proposed Rule, ``ecosystem services'' are defined to include
``[c]ultural services such as. . .spiritual. . .opportunities.'' See 76
Fed. Reg. at 8523 Sec. 219.19. ``Plans will guide management of NFS
lands so that they. . .provide. . .opportunities. . .for. . .spiritual.
. .sustenance.'' See 76 Fed. Reg. at 8514 Sec. 219.1(c). The plan
``must provide for multiple uses, including ecosystem services.'' See
76 Fed. Reg. at 8519 Sec. 219.10. The First Amendment of the
Constitution prohibits the making of any law ``respecting an
establishment of religion'' and the Forest Service should not delve
into the arena of how Forest Plan decisions comport with spiritual
sustenance.
A Pre-decisional Objection Process Is a Superior Approach for Challenge
to a Forest Plan to the Administrative Appeals Process:
Sec. 219.52 of the Proposed Rule appropriately calls for objections
to a draft plan to be made before the final plan is released. This
requirement would allow the agency to take issues into account and make
appropriate changes so as to avoid litigation. Under the current
appeals system, those who just want to stop a project are not required
to participate in pre-decisional planning, and may simply sue once a
final decision is made.
Conclusion
PLC and ASI appreciate the Forest Service's need to balance
multiple uses of NFS lands; however, we are concerned that the Forest
Service is elevating the objective to provide for diversity of plant
and animal communities above other multiple use objectives,
particularly, the objective to provide for range resources. PLC and ASI
are also concerned with the Forest Service's focus on maintaining
species viability, rather than providing for habitat diversity as is
required by NFMA.
We would also like to express concern regarding The Science Review
of the United States Forest Service Draft Environmental Impact
Statement for National Forest System Land Management, which the Forest
Service posted to the Planning Rule Website on April 27th. This
information was provided more than two-thirds of the way through the
comment period and thus we did not have adequate time to review and
analyze the report. It is unclear how the panel was selected and to
what extent the information provided in the report will be used to
shape the final planning rule. We are concerned that the panel was not
convened in a manner compliant with the Federal Advisory Committee Act
(FACA), 5 U.S.C. Sec. Sec. 1-16.
In similar comments submitted to the Forest Service on their
Proposed Rule and DEIS, we have requested that they revise the Proposed
Rule to be consistent with its authority under NFMA and MUSYA and to
appropriately consider its multiple use objective to provide for range
resources. Providing for range resources is an important objective of
the Forest Service's multiple use and sustained yield mandate and is
necessary to sustain the yields (food and fiber) from sheep and cattle
grazing on NFS lands. The secondary beneficiaries of the Forest
Service's compliance with its statutory mandates are the many rural
economies in the West. Lastly, PLC and ASI submit that the Forest
Service's ability to provide range resources and to manage for
sustainable and healthy forest lands is integral to successful
operations of our members.
Again, we thank you for the opportunity to provide these comments
to the Subcommittee. If you have any questions concerning these
comments or need further information, you may contact Dustin Van Liew
at the Public Lands Council as our point of contact.
______
Mr. Bishop. Thank you.
Mr. Horngren, you are recognized.
STATEMENT OF SCOTT HORNGREN, AMERICAN FOREST RESOURCE COUNCIL,
FEDERAL FOREST RESOURCE COALITION
Mr. Horngren. Good morning.
Mr. Bishop. Mr. Horngren, can I ask you to put that mic up
to your mouth so we can hear you?
Mr. Horngren. How about if I turn it on?
Mr. Bishop. OK. How about both of them?
Mr. Horngren. All right.
Mr. Bishop. Pull it closer to you and turn it on.
Mr. Horngren. Yes. All right. Here we go. Good morning, Mr.
Chairman and Members of the Committee.
Speaking as a former law firm attorney who used to bill by
the hour, my prior law firm is thrilled by the proposed
planning rule because litigation will explode over vaguely
defined terms and how to comply with a multitude of new
requirements.
Now I no longer bill by the hour, and I am a staff attorney
for the American Forest Resource Council and am representing
the Federal Forest Resource Coalition as well here today. Their
member mills depend in part on timber sold from national
forests. Their members also own adjoining lands to national
forests where the Forest Service needs to reduce insect,
disease and wildfire threats on these adjoining lands.
The proposed rule makes the Forest Service's resource
management job harder and will increase the cost and complexity
of preparing plans and the projects, leaving both more
vulnerable to lawsuits. The one fundamental principle of
success in real estate is location, location, location, and the
one fundamental principle of a successful planning rule is
discretion, discretion, discretion.
The courts say the Forest Service has it under the National
Forest Management Act. It provides flexibility to get the
forest health projects done promptly and at the least cost, and
discretion is a shield against litigation because the courts
increasingly defer to the Forest Service's exercise of this
discretion.
But if you look at the planning rule, it is designed to
eliminate discretion, which will increase the cost and
complexity, hampering efforts to improve forest health. The
word shall is used 55 times and must 98 times in the rule,
creating a total of 153 obligations and possible legal claims.
First, the planning rule requires that all management
direction adopted in a forest plan be in the form of mandatory
standards instead of flexible guidelines. This is despite
favorable court decisions that have upheld the Forest Service
use of flexible guidelines. A 10 percent bank alteration
grazing standard here, a mile and a half road density standard
there, and pretty soon the Forest Service management discretion
disappears.
Second, the planning rule requires assessments, which are
broadly defined as any analysis related to ``ecological,
economic or social conditions, trends and sustainability within
the context of the broader landscape.'' Huh? ``For every such
analysis, the Forest Service shall notify and encourage
appropriate Federal agencies and scientists to participate in
these assessments.''
With the emphasis throughout the rule on global climate
change, it is difficult to see how the EPA won't have to be
involved in every facet of forest planning. And who are the so-
called appropriate nonFederal scientists that must be involved?
The answer will have to wait for years of lawsuits.
Last, rather than narrowing species viability requirements
the rule expands them beyond vertebrate species like big game
and birds to include all species on the planet like the slugs.
And what is frustrating to us is the Act itself says that
diversity from which this viability rule is derived is to
provide the other multiple uses, not to be up on a pedestal
itself, and the rule does not reflect the statutory command.
The rule will essentially require expensive population surveys.
The health of the forest has deteriorated significantly
under 30 years of the current viability rule, and the Forest
Service should strive to narrow the viability rule and make it
more workable. As an attorney, I am perplexed why the rule
abandons legal victories that cemented the concept that the
Forest Service decisionmakers can exercise their discretion.
Of greatest concern is that the rule will lead to
ineffective stand treatments, increasingly limited by the
requirement that all on-the-ground projects must comply with
every so-called component, an ill-defined term in the rule used
40 times.
In closing, the National Forests are turning into
dangerous, decrepit slums that threaten surrounding neighbors,
and the planning rule will only further tie the hands of the
people who are trying to solve the problem on the ground. The
rule should make the job of improving forest health easier,
less expensive and less time-consuming. Unfortunately, the rule
does just the opposite.
Thank you for the opportunity to testify.
[The prepared statement of Mr. Horngren follows:]
Statement of Scott W. Horngren, Attorney, on Behalf of
American Forest Resource Council and Federal Forest Resource Coalition
Chairman Bishop and members of the Subcommittee, thank you for the
opportunity to testify. I am Scott Horngren, and I am testifying on
behalf of the American Forest Resource Council (AFRC) and the Federal
Forest Resource Coalition (FFRC).
AFRC is a nonprofit corporation and trade association headquartered
in Portland, Oregon. AFRC represents lumber and plywood manufacturing
companies throughout the west that obtain their raw material for their
mills from private and federal forest lands. AFRC and its predecessor
associations have actively participated through association staff and
its members in the rulemaking, forest planning process, and forest plan
implementation and monitoring on individual national forests since the
National Forest Management Act (NFMA) was passed in 1976. AFRC has also
been involved as a codefendant with the Forest Service in many lawsuits
challenging forest plan decisions through individual timber sale
projects.
FFRC is a national coalition of small and large companies and
regional trade associations across the country whose members
manufacture wood products, paper, and renewable energy from federal
timber resources. Coalition members employ over 350,000 workers in over
650 mills, with payroll in excess of $19 billion. FFRC wants to ensure
timely and effective access to federal lands to sustainably produce
timber, pulpwood, and biomass and for prompt management to protect
federal forests from insects, disease, and wildfire.
I am an attorney with over two decades of litigation experience
involving national forest management. I also have a forest management
degree and the lawsuits halting sound forest management in the early
1980s motivated me to go to law school. Before joining AFRC as a staff
attorney last year, I was in private practice representing local
governments, resource users, and landowners who have intervened in
lawsuits to support the Forest Service. I have represented Mineral
County Montana, Apache County Arizona, and Boundary County Idaho
defending the Forest Service in cases challenging both forest plans and
forest management projects.
We have many concerns with the Forest Planning rule. Along with my
testimony, I would like to submit for the record the official comments
filed on the proposed rule by the AFRC. While the rule is long and
complex and our concerns many, I will focus my comments to six points.
First, the proposed planning rule will increase the complexity, cost,
and time for the Forest Service to complete forest plans. Second, of
greater concern, is that the planning rule will make the projects that
implement the plans more vulnerable to lawsuits than they are today.
Third, the proposed planning rule nullifies, rather than builds upon,
the hard fought court victories the Forest Service achieved in the last
decade to allow them to implement badly needed forest management
projects. Fourth, the viability section of the planning rule is the
prime example of the first three problems. Fifth, the proposed forest
planning process allows local planners to establish unworkable, defacto
regulations shielded from the view of Congress and the Secretary.
Finally, the proposed planning rule will have the planning team tied in
knots chasing the mythical ``best available science.''
1. The planning rule will make forest planning even more complex,
costly, and time consuming.
Budgets are tight and planning should not take forever. The
combined forest plan revision process for the three Northeast Oregon
National Forests began in 2004. Seven years later, a draft forest plan
has not even been produced for public comment. There is a need for a
far less complex and costly planning process which can be completed in
a time frame which allows meaningful public input. Instead the proposed
rule will increase the Forest Service's analytical burden and expense.
The Forest Service's own analysis of the rule concludes it will not
save much time and money. The rule has a multitude of ``shalls'' and
``musts,'' with the word ``shall'' used 55 times and ``must'' used 98
times. Based on my litigation experience, the commitments that the
Forest Service makes in the proposed rule will vastly increase the
expense and time to complete an acceptable forest plan.
A perfect example is the new requirement to conduct multiple
``Assessments.'' 36 C.F.R. 219.6. The Assessment process creates a new
legally enforceable obligation to ``Identify and evaluate information
needed to understand and assess existing and potential future
conditions and stressors in order to inform and develop required plan
components and other content in the plan'' and ``the responsible
official shall notify and encourage''. . .``the public'' and
``appropriate''. . .Federal agencies'' and ``scientists to participate
in the assessment process.'' 219.6(a). The Assessments will presumably
include non-federal scientists to help ``inform'' planning which will
require compliance with the Federal Advisory Committee Act increasing
delay and expense. The Forest Service is placing the subsequently
developed Forest Plans at risk by requiring a process to develop
Assessments with public participation and non-federal scientists that
``inform'' decisions in the plan without going through the NEPA process
or complying with FACA. One alternative is to make the Assessments
subject to NEPA and FACA but this will make the forest planning process
even more unworkable. A better approach is to eliminate the Assessments
section from the planning rule entirely.
The Assessments will overwhelm the planning team in interpreting
how to comply with the new requirements. If the Forest Service does not
``notify'' and ``encourage'' plaintiffs' preferred scientists to
participate, then does it violate the law? Does ``notify'' mean just
publish a notice in the newspaper? Which newspaper--The Washington
Post, the Washington Times, or the Stanford Daily? Does the Responsible
Official have to write the scientist to ``encourage'' her to
participate? Is a letter and a follow-up phone call enough
``encouragement''? And who are the ``appropriate'' agencies and
scientists? Certainly EPA would have to be notified and encouraged to
participate in the Assessment given the proposed planning rule's
emphasis on climate change and carbon sequestration. If a plaintiff can
show that the Forest Service failed to do enough to ``encourage'' the
participation of the so called ``appropriate scientists'' the agency
will have violated the proposed rule.
The Assessment section will also create a powerful new tool for
plaintiffs to attack any Forest Service analysis that looks and smells
like an Assessment. For example, the proposed rule says an Assessment
may be ``a one-page report'' and any resource analysis in the planning
file arguably related to ``ecological, economic, or social conditions,
trends, and sustainability within the context of the broader
landscape'' qualifies as an Assessment and will violate the regulation
if it was not prepared with public participation and appropriate
scientists were not involved in its preparation. 36 C.F.R. 219.6,
219.19.
The great burden, complexity, and cost of the proposed rule is also
illustrated by its treatment of wildlife. The rule and its Federal
Register preamble (which is used by courts to interpret the rule)
include multiple categories of species. The Federal Register explains:
``There are several categories of species that could be used to inform
the selection of focal species for the unit. These include indicator
species, keystone species, ecological engineers, umbrella species, link
species, species of concern, and others.'' 76 Fed. Reg. at 8498 (Feb,
14, 2011). Some of the species are probably mutually exclusive but
other species overlap creating a planning nightmare. The forest
planning rule should instead focus on habitat, a factor over which the
managing agency has some control.
Finally, the proposed rule expands the Forest Service obligations
not only during the heart of the planning process but also at the
beginning and the end of the planning process. At the beginning of the
process, the Responsible Official ``shall'' encourage participation by
a long list of groups under 36 C.F.R. 219.4. At the end of the process
the Responsible Official ``must'' monitor the ``status of focal
species''. . .``measurable changes on the unit related to climate
change and other stressors'' and ``the carbon stored in above ground
vegetation.'' 36 C.F.R. 219.12.
Under President Obama's Executive Order 13579 signed January 11,
2011, rules are supposed to be made more cost effective, less
burdensome, and more flexible. The proposed planning rule does just the
opposite and creates new mandatory obligations on Forest Supervisors
and Regional Foresters for which the Forest Service has no means of
compliance.
2. The planning rule will impede, rather than ease, the implementation
of forest restoration projects with more costly, time consuming
procedure for projects.
The proposed planning rule is supposedly designed to avoid long
delays, excessive costs, and litigation. Unfortunately, the proposed
planning rule strikes out in all three areas because the rule will
increase the complexity and the analytic burden, not just of preparing
the forest plan itself but of the projects that implement the plan.
Approximately 75% of project preparation cost is for analysis to comply
with the National Environmental Policy Act, the forest plan, and the
planning rules such as viability and management indicator species. The
Forest Service seems to have forgotten that it is not the plans sitting
on the shelf that treat the diseased and fire prone forests, but the
projects that implement those plans. The proposed rule fails to take
the steps needed to aid and support the projects that implement the
plans.
Projects are greatly constrained by the proposed forest planning
rule. First, each and every project must comply with every substantive
standard in the forest plan. The proposed rule requires that ``every
project'' must comply with ``plan components.'' 36 C.F.R. 219.7(d). And
the ``plan components'' are extensive. Plan components are mentioned 45
times in the rule. In the Sustainability Section 219.8, alone, forest
plans ``must include plan components'' to ``maintain, protect, and
restore'' aquatic elements, soils, and rare plant and animal
communities.''
Second, the proposed planning rule does nothing to ease the
procedural and analytical burden for projects. For example each and
every project must repeat the analysis of how the project will maintain
``a viable population of a species'' and provide ``sustainable
recreation opportunities'' because these are analytical ``plan
components'' of the rule. 36 C.F.R. 219.8(b)(2), 219.9(b)(3). These are
forest level questions best answered at a larger scale that should not
have to be answered again and again in the analysis for each project.
The Forest Service needs to carefully reconsider how the proposed
rule will substantively limit management flexibility for projects and
will weigh down an already overburdened project preparation process.
The Forest Service, for instance, is currently embarking on a NEPA
analysis of a large-scale bark beetle infestation in the Black Hills.
We understand that this analysis will consume 12 to 14 months. Imposing
project specific analysis on such a scale will only delay badly needed
forest health treatments that can help check the spread of infestation
and make the forest more resilient in the future, the very goals the
proposed planning rule claims to promote.
3. The planning rule would cast aside significant Forest Service court
victories.
One of the most disheartening flaws of the proposed rule is the
abandonment of favorable legal precedents that the Forest Service has
established after nearly 30 years of litigation over NEPA and the
provisions of the 1982 forest planning rule. This is particularly
frustrating for AFRC which has worked hard to defend Forest Service
decisions and establish that they have discretion in implementing the
existing planning regulations and is not bound by costly data
collection and scientific proof requirements. Instead of building on
these legal victories and streamlining and narrowing the existing
planning rule, the proposed planning rule concedes precious legal
ground and builds a strong foundation for future legal defeats.
The examples below are only a few of the areas where the planning
rule will make the Forest Supervisor's job much harder by eliminating
or undermining Forest Service legal victories.
The proposed rule abandons the major victory in Lands
Council v. McNair, 537 F.3d 981 (9th Cir. 2008)(en banc) that
affirmed that the Forest Service has discretion in it
management decisions. The proposed rule adopts many non-
discretionary requirements where the responsible official
``must'' or ``shall'' adopt a specific management approach. For
example, under Section 219.8 ``the plan must provide for. .
.ecological sustainability,'' whatever that means.
The proposed rule abandons the victory in Seattle
Audubon Society v. Moseley, 830 F.3d 1401, 1404 (9th Cir. 1996)
which upheld selection of an alternative in the Northwest
Forest Plan that provided an 80% rather than 100% probability
of maintaining the viability of the spotted owl because ``the
selection of an alternative with a higher likelihood of
viability would preclude any multiple use compromises contrary
to the overall mandate of the NFMA.'' The proposed rule does
not even mention the term ``multiple-use objectives'' in
Section 219.9 which covers diversity and viability. The rule
completely ignores the clear language of NFMA that says
diversity is a goal to be provided ``in order to meet overall
multiple-use objectives.'' 16 U.S.C. 1604(g)(3)(B).
The proposed rule abandons the victory in Lands
Council v. McNair, 537 F.3d 981 (9th Cir. 2008)(en banc) that
builds on the Mosely case that viability is not the only factor
the Forest Service must address in developing forest plans.
``NFMA. . .requires that plans developed for units of the
National Forest System `provide for multiple use and sustained
yield of the products and services obtained there from.'. .
.the NFMA is explicit that wildlife viability is not the Forest
Service's only consideration when developing site-specific
plans for National Forest System lands.'' Id. at 990 (emphasis
added).
The proposed rule abandons the victory in Lands
Council v. McNair, 537 F.3d 981, 991-92, (9th Cir. 2008)(en
banc) that the Forest Service doesn't have to consider any and
every scientific study or alternative methodology when it
evaluates its land management options. The proposed rule in the
Section 219.3 requires the Forest Service to verify ``what
information is the most accurate, reliable, and relevant'' and
Section 219.12 governing monitoring requires that ``the
responsible official. . .shall ensure that scientists are
involved in the design and evaluation of unit and broad scale
monitoring.'' 219.12 (c)(4). While the Forest Service should
base its decision on sound scientific knowledge, as well as
legal mandates and the experience of local officials and
stakeholders, the proposed rule elevates an ideal conception of
science to a legally controlling, and unattainable,
requirement.
The proposed rule abandons the victory in Salmon
River Concerned Citizens v. Robertson, 32 F.3d 1346, 1359 (9th
Cir. 1994) that ``NEPA does not require [that we] decide
whether an [environmental impact statement] is based on the
best scientific methodology available, nor does NEPA require us
to resolve disagreements among various scientists as to
methodology.'' The propose rule imposes in Section 219.3 an
independent requirement beyond NEPA that the responsible
official for the forest plan ``determine'' and justify what is
the ``best available scientific information.''
The proposed rule abandons the victory in Greater
Yellowstone Coalition, Inc. v. Servheen, 672 F.Supp.2d 1105,
1114 (D.Mont. 2009) that held ``[w]hen Forest Plans contain
standards, the standards are `mandatory requirements,' in
contrast to guidelines, `which are discretionary.' The proposed
rule throws this victory away because Section 219.15 defines
both standards and guidelines as mandatory.
The proposed rule abandons the victory in Norton v.
Southern Utah Wilderness Alliance, 124 S.Ct. 2372, 2382 (2004)
that land use plan monitoring is not a ``binding commitment in
terms of the plan.'' Although the Norton case involved the
monitoring provisions of a BLM management plan, it is a helpful
victory that recognized the agency has flexibility if the
agency itself has not created a binding commitment.
Unfortunately, in Section 219.12, Monitoring, the longest and
most detailed section of the planning rule, the Forest Service
sets forth extensive and detailed monitoring requirements
replete with the word ``shall'' that will be undermine the
Norton victory.
4. The proposed rule's changes to the ``viability rule'' make it worse,
not better.
The term ``species viability'' in not found in the National Forest
Management Act. The Act itself only refers to developing ``guidelines''
which ``provide for diversity of plant and animal communities based on
the suitability and capability of the specific land area in order to
meet overall multiple-use objectives.'' 16 U.S.C. 1604 (g)(3)(B). The
term ``viability'' was added to the planning regulation in 1982. Since
then, the so-called ``species viability rule'' has been the centerpiece
of two decades of litigation by environmental groups who were generally
successful in persuading courts to second guess Forest Service
decisions and impose delays for costly, time consuming species surveys.
The high water mark was a decision in Ecology Center v. Austin, 430
F.3d 1057 (9th Cir. 2005) on the Lolo National Forest which held that
the Forest Service had to prove with ``clinical trials'' similar to
drug companies seeking approval of a new drug, that any harvest would
have no adverse effect on wildlife.
It is critical to note that this legal fiction, created entirely
from regulation and subsequent litigation, has not actually led to
improved habitat conditions on large portions of the National Forest
System. Rather, it has created a judicially enforced presumption that
less management, on fewer acres, with mind-bogglingly complex selection
criteria to identify lands available for management, will lead to
greater species diversity and more healthy, vibrant forests. The
reality on the ground has been continued declines for a number of
species, less healthy and vigorous forests, and decreased ability to
react to obvious threats to forest health.
Thankfully, in 2008 in Lands Council v. McNair, an en banc panel of
11 judges representing the entire Ninth Circuit unanimously reversed
this line of cases for the Mission Brush Restoration Project in Idaho.
The good news is the Mission Brush decision established several
important principles that help the Forest Service that apply to
addressing species viability:
The court held that judges ``must defer to the Forest
Service as to what evidence is, or is not, necessary to support
wildlife viability analysis.'' McNair, 573 F.3d at 992.
The court emphasized that ``[g]ranting the Forest
Service the latitude to decide how best to demonstrate that its
plans will provide for wildlife viability comports with our
reluctance to require an agency to show us, by any particular
means, that it has met the requirements of the NFMA every time
it proposes action.'' Id.
The court emphasized that the National Forests are to
be managed for multiple uses and that ``the NFMA is explicit
that wildlife viability is not the Forest Service's only
consideration when developing site-specific plans for National
Forest System lands.'' McNair, 573 F.3d at 990.
The court concluded the Forest Service has
flexibility in providing for wildlife viability and it is not
the court's role to second guess how the Forest Service chooses
to provide for wildlife viability. The court concluded ``Thus,
as non-scientists, we decline to impose bright-line rules on
the Forest Service regarding particular means that it must take
in every case to show us that it has met the NFMA's
requirements.'' McNair, 573 F.3d at 994-95.
The court endorsed the use of a habitat analysis to
assess wildlife viability and did not require a population
based analysis. So long as the analysis uses the best available
information and confirms the type of habitat a species uses, a
discussion of habitat changes is sufficient to demonstrate
species viability. McNair, 573 F.3d at 992.
The bad news is, that the species viability section of the proposed
planning rule does not build on the principles from this victory,
rather it throws several of them under the bus, and moves in a
direction that will make it even more burdensome than the current
viability rule.
The proposed rule states:
Sec. 219.9 Diversity of plant and animal communities.
Within Forest Service authority and consistent with the
inherent capability of the plan area, the plan must include
plan components to maintain the diversity of plant and animal
communities, as follows:
* * *
(b) Species Conservation. The plan components must provide for
the maintenance or restoration of ecological conditions in the
plan area to:
* * *
(3) Maintain viable populations of species of conservation
concern within the plan area. Where it is beyond the authority
of the Forest Service or the inherent capability of the plan
area to do so, the plan components must provide for the
maintenance or restoration of ecological conditions to
contribute to the extent practicable to maintaining a viable
population of a species within its range. When developing such
plan components, the responsible official shall coordinate to
the extent practicable with other Federal, State, tribal, and
private land managers having management authority over lands
where the population exists.
The proposed rule expands the viability requirement
beyond vertebrate species to include ``native plants and native
invertebrates (fungi, aquatic invertebrates, insects, plants,
and others)'' which will make the cost of compliance soar and
establish a regulatory standard that cannot be achieved.
The proposed viability rule does not include the
limiting phrase ``to meet overall multiple-use objectives''
(which explicitly modifies the ``provide for diversity''
language in NFMA) to make it clear that the Forest Service must
provide for diversity of plant and animal communities to meet
overall multiple use objectives and not the other way around.
The proposed rule will undercut Forest Service victories where
courts recognized that viability is not the engine that drives
planning decisions. McNair, 537 F.3d at 990 (``the NFMA is
explicit that wildlife viability is not the Forest Service's
only consideration when developing site specific plans for
National Forest System lands.''). Id.
The viability rule will require the Forest Service to
demonstrate that every project will maintain viability since
viability is a ``plan component.''
219.7 (d) Plan components. Plan components guide future project
and activity decision making. The plan must indicate where in
the plan area specific plan components apply. Plan components
may apply to the entire plan area, to specific management or
geographic areas, or to other areas as identified in the plan.
Every project and activity must be consistent with the
applicable plan components (Sec. 219.15) (emphasis added).
This requirement will mean each and every localized project will have
to demonstrate over and over again how the Forest Service will maintain
viable populations of species of conservation concern across the
forest.
The definition of ``species of conservation concern''
is potentially limitless. The Responsible Official that
approves a forest plan should have authority to determine a
manageable list of species. Also, requiring a forest plan to
provide a guarantee of viability for a species over which there
is significant concern about viability requires the agency to
guarantee something that it cannot. It puts the burden on the
Forest Service to prove it will maintain a viable population
and invites litigation over the adequacy of the substantive
requirements in the plan, survey obligations, and population
monitoring. The approach of the rule essentially requires
species specific plans like the lengthy and expensive lynx plan
amendments prepared for Regions 1 and Region 2. NFMA requires
the Forest Service to develop plans which ``form one integrated
plan for each unit of the National Forest System'' 16 USC 1604
(f)(1)--not separate wolverine, fisher, goshawk, and black-
backed woodpecker plans.
The proposed rule requires conservation of Fish and
Wildlife Service ``candidate species'' which require no
protection under the ESA. The Forest Service has higher
planning priorities than to devote its scarce resources to
providing a conservation strategy in the forest plan to
conserve every species for which the listing agency has not
even decided whether to propose listing or made a determination
to list.
The proposed viability rule requires that the ``The
plan components must provide for the maintenance or restoration
of ecological conditions to contribute to the extent
practicable to maintaining a viable population of a species
within its range. . .'' This is an unattainable anti-
degradation standard. The Ninth Circuit has emphasized in
McNair that ``[o]f course, neither the NFMA nor the. . .Forest
Plan require the Forest Service to improve a species' habitat
to prove that it is maintaining wildlife viability.'' McNair,
537 F.3d at 995. However, the proposed viability rule is
written so that all ``plan components'' ``must provide for
maintenance and restoration,'' which creates a legal ``non-
degradation standard'' for wildlife throwing away the victory
in McNair.
The reference to ``population'' in the proposed
viability rule will require costly population inventories and
lead to litigation to establish a population survey requirement
which will be impossible to meet for species such as the
wolverine which are difficult to detect. Instead, maintenance
of habitat for the species should be the focus of the new
viability rule.
5. The Proposed Rule establishes defacto regulations hidden from view
of Congress and the Secretary.
By creating Forest Plan ``standards,'' a planning team is able to
impose significant, costly, and unsupported restrictions on resource
management that have the effect of regulations (i.e.--the force of
law). However, because forest plan standards are not formal
regulations, Congress does not have the opportunity to reject them
under the Congressional Review Act of 1996. 5 U.S.C. 801-808. And
because forest plans are typically approved by the Regional Forester,
the Secretary also has no oversight of these standards. Compliance with
forest plan standards is the centerpiece of many lawsuits challenging
projects that implement a forest plan. That is because the NFMA
requires that ``resource plans and permits, contracts, and other
instruments for the use and occupancy of National Forest System lands
shall be consistent with the land management plans.'' 16 U.S.C.
1604(i). So if there is a dispute over whether a particular project
complies with a forest plan standard such as providing for ``ecological
sustainability'' then it ends up in the courts where the judges decide
what the standard means and whether a project violates the standard.
The courts have had several occasions to review the distinction
between forest plan standards and guidelines as they are currently
defined under the existing regulations. The courts have ruled in favor
of the Forest Service and repeatedly rejected plaintiffs' arguments
that the agency was legally compelled to follow a forest plan
guideline. For example, in Wilderness Soc. v. Bosworth, 118 F.Supp.2d
1082, 1096 (D.Mont. 2000), the Ninth Circuit rejected plaintiffs
argument that all old growth stands had to be a minimum of 25 acres.
The court concluded that ``the 25 acre minimum size requirement in the
Forest Plan is a guideline and is therefore discretionary rather than
mandatory.'' Id. at 1096. Similarly, in Greater Yellowstone Coalition,
Inc. v. Servheen, 672 F.Supp.2d 1105, 1114 (D.Mont. 2009) the court
noted that ``[w]hen Forest Plans contain standards, the standards are
`mandatory requirements,' in contrast to guidelines, `which are
discretionary.' '' The Forest Service should not toss aside these legal
victories.
The proposed rule effectively eliminates the distinction between
forest plan guidelines and standards making guidelines legally
enforceable standards that all projects must ``comply with.'' This
change destroys the Forest Service hard fought legal victories
establishing that guidelines are discretionary--not mandatory, and
provide management flexibility.
Sec. 219.15 Project and activity consistency with the plan.
* * *
(d) Determining consistency. A project or activity approval
document must describe how the project or activity is
consistent with applicable plan components developed or revised
in conformance with this part by meeting the following
criteria:
(1) Goals, desired conditions, and objectives. The project or
activity contributes to the maintenance or attainment of one or
more goals, desired conditions, or objectives or does not
foreclose the opportunity to maintain or achieve any goals,
desired conditions, or objectives, over the long term.
(2) Standards. The project or activity complies with applicable
standards.
(3) Guidelines. The project or activity:
(i) Is designed to comply with applicable guidelines as set out
in the plan; or
(ii) Is designed in a way that is as effective in carrying out
the intent of the applicable guidelines in contributing to the
maintenance or attainment of relevant desired conditions and
objectives, avoiding or mitigating undesirable effects, or
meeting applicable legal requirements (Sec. 219.7(d)(1)(iv)).
The proposed rule must not further constrain agency discretion and
provide more litigation vehicles to challenge agency decisions. This
would be the result of the proposed rule's elimination of the
distinction between standards and guidelines and eviscerate the
discretionary nature of guidelines by requiring that all projects
``comply with'' guidelines. The results will be an even more hide-bound
decision making process, which sacrifices improved forest management on
the altar of extensive process and analysis.
6. The planning rule must recognize that science is constantly changing
and that no scientist can lay claim to the mythical ``best''
science.
The final significant problem with the proposed planning rule is
that it imposes a legal duty that requires the planning team to
decipher what qualifies as the ``best available science'' as if there
was such a thing. Sound science has an important role in Forest Service
planning and management. However, the proposed rule establishes costly,
time consuming procedural requirements that the Forest Service ``take
into account'' the best available science and demonstrate that the
``most accurate, reliable, and relevant information'' was considered
and how it ``informed'' the development of the forest plan. 36 C.F.R.
219.3. This will slow the planning process to a crawl and create a new
legal burden on the Forest Service to prove that it has ``taken into
account'' the best available science in both the forest plan and
implementing projects. Each project will have to repeat the analysis of
the best available science.
The NFMA statute neither refers to, nor requires the use of, ``best
available science'' or ``best available scientific information.''
Neither does NEPA. The Ninth Circuit Court of Appeals has affirmed that
these statutes do not require a determination of whether national
forest planning or project-level NEPA documents are based on ``best''
available science or methodology, that disagreements among scientists
are routine, and that requiring the Forest Service to resolve or
present every such disagreement could impose an unworkable burden that
would prevent the needed or beneficial management. Lands Council v.
McNair, 537 F.3d 981, 991 (9th Cir. 2008)(en banc); Salmon River
Concerned Citizens v. Robertson, 32 F.3d 1346, 1359 (9th Cir. 1994).
In Lands Council, a unanimous en banc panel of the Ninth Circuit
gave the Forest Service more leeway and flexibility regarding
scientific analysis. The Court emphasized that, ``[t]o require the
Forest Service to affirmatively present every uncertainty in its EIS
would be an onerous requirement, given that experts in every scientific
field routinely disagree; such a requirement might inadvertently
prevent the Forest Service from acting due to the burden it would
impose.'' McNair, 537 F.3d at 1001. The Forest Service should
recognize, as the Ninth Circuit finally has, that there is no holy
grail of the ``best'' or ``most accurate'' science. Even NEPA does not
require such impossible divining of the ``best'' science. The Ninth
Circuit held that ``NEPA does not require [that we] decide whether an
[environmental impact statement] is based on the best scientific
methodology available, nor does NEPA require us to resolve
disagreements among various scientists as to methodology.'' Salmon
River Concerned Citizens, 32 F.3d at 1359.
The proposed rule ignores these legal victories that establish that
there is no such thing as the ``best'' or ``most accurate'' science and
will relieve plaintiffs of the burden to prove why the Forest Service
decision is flawed. The Forest Service will now be forced to labor
under the burden to prove why its decision ``is informed by'' the best
science. The burden to prove that the Forest Service was arbitrary and
capricious in its decision-making should remain with plaintiff and the
regulations must strive to avoid placing the heavy burden of proof on
the agency. The proposed rule states:
Sec. 219.3 Role of science in planning.
The responsible official shall take into account the best
available scientific information throughout the planning
process identified in this subpart. In doing so, the
responsible official shall determine what information is the
most accurate, reliable, and relevant to a particular decision
or action. The responsible official shall document this
consideration in every assessment report (Sec. 219.6), plan
decision document (Sec. 219.14), and monitoring evaluation
report (Sec. 219.12). Such documentation must:
(a) Identify sources of data, peer reviewed articles,
scientific assessments, or other scientific information
relevant to the issues being considered;
(b) Describe how the social, economic, and ecological sciences
were identified and appropriately interpreted and applied; and
(c) For the plan decision document, describe how scientific
information was determined to be the most accurate, reliable,
and relevant information available and how scientific findings
or conclusions informed or were used to develop plan components
and other content in the plan.
The proposed rule undermines the principle that the Forest Service
can make natural resource management decisions based on its discretion
in weighing various multiple-use objectives rather than elevating
science to the primary decision making factor. For example, the Ninth
Circuit in Seattle Audubon Society v. Moseley, 830 F.3d 1401, 1404 (9th
Cir. 1996) upheld selection of an alternative in the Northwest Forest
Plan that the science indicated would provide an 80% rather than 100%
probability of maintaining the viability of the spotted owl because
``the selection of an alternative with a higher likelihood of viability
would preclude any multiple use compromises contrary to the overall
mandate of the NFMA.'' That Ninth Circuit in the Mission Brush case
finally recognized that, ``[c]ongress has consistently acknowledged
that the Forest Service must balance competing demands in managing
National Forest System lands. Indeed, since Congress' early regulation
of the national forests, it has never been the case that `the national
forests were. . .to be set aside for non-use'.'' McNair, 537 F.3d at
990.
Finally, the use and dissemination of scientific information by
federal agencies is addressed by the Federal Data Quality Act (P.L.
106-554 Sec. 515) and subsequent guidelines from the Office of
Management and Budget (http://www.whitehouse.gov/omb/
fedreg_reproducible). We believe that the protections and assurances of
the quality of scientific information used and distributed by federal
agencies under the Federal Data Quality Act is sufficient to ensure
that quality of scientific information being used by the USFS in the
planning process and a requirement to identify the ``most accurate''
scientific information should not be a legal requirement in the
planning rule itself.
The planning rule must not require the Forest Service to do more
than take into account available, relevant scientific information along
with other factors in the development, amendment, or revision of
national forest plans, without reference to which information is
``best.'' Proposed Section 219.3 should be deleted or greatly
abbreviated, along with any other references in the proposed rule to
``best available scientific information.''
Thank you for permitting me to testify.
______
Mr. Bishop. Thank you.
Mr. Mumm?
STATEMENT OF GREG MUMM, EXECUTIVE DIRECTOR,
BLUE RIBBON COALITION
Mr. Mumm. Good morning, Chairman Bishop and Members of the
Subcommittee. I would like to thank you for the opportunity to
be here this morning to testify. I am the Executive Director of
the Blue Ribbon Coalition, which is often referred to as BRC.
BRC has individual, business and organizational members in all
50 states. We champion responsible recreation and access, and
we encourage individual environmental stewardship.
BRC has a longstanding interest in the protection of the
values and the natural resources found on our public lands and
waters, including those of the National Forest System. This
morning I would like to address each stated issue for this
hearing, starting with the proposed planning rule.
From the outset, BRC has been extensively involved in the
planning rule revision process. We are most concerned that in
this current effort the Forest Service has strayed far from the
core purpose for revising the planning regulations, and it has
strayed from the congressional mandates of multiple use
sustained yield. In fact, the proposed rule threatens to create
new goals and criteria, which will exacerbate and not resolve
the planning gridlock that is accelerating through the agency.
It is ironic that the agency continues to be mired in a
decades long effort to make the process of forest planning more
streamlined and more efficient, but it does not build on the
lessons learned in prior efforts. Instead, it threatens a new
vision fraught with uncertainty.
We support the need to revise the current planning rule,
and if the fundamental underpinnings were correct, BRC would be
the first to back such a rule. However, the proposed rule does
not carry the broad support from those most affected by it
because a long history demonstrates it will only make things
worse. BRC is asking this Committee to urge the Forest Service
to sear this effect back to its necessary focus to, one, fill
the current regulatory void and, two, create efficiency and
expediency in the forest planning process.
We are also concerned with travel management. The organized
motorized recreation community supported the 2005 Travel
Management Rule based on the growing importance of recreation
on Forest Service lands, the need for clear management guidance
and the recognition that effectively managed motorized
recreation is a legitimate and productive use of the National
Forest System.
The motorized transportation system is not a single faceted
end product but a means to nearly every form of recreation and
use on the national forest. Virtually everyone is motorized
when they visit our national forests, even for the activities
that are often labeled as nonmotorized.
The true economic impact of the motorized transportation
network on the forest system is immense, but it is not properly
quantified. Unfortunately, in many forests the TMR has been
incorrectly interpreted by many preservationist interests
within and beyond the Forest Service to justify landscape level
closures, including well-established, mapped routes that are
historically part of local transportation systems.
A wave of litigation has predictably followed publication
of new motor vehicle use maps under the TMR, all of which has
created additional means by which to threaten and paralyze
effective local management. The changes following that
litigation are often not predictable but can influence broader
agency policy. In general, the end product of the TMR is more
often not what was intended, and it is having a profoundly
negative impact on dependent local communities.
And finally, recreation enthusiasts struggle with special
use permits. At a time when Federally managed lands should be
contributing to the economic vitality of our nation, it is
unacceptable that the recreation permit process as it is
currently implemented on the Forest Service lands is overly
bureaucratic, expensive for both the agency and the public and
often applied in an unfair and arbitrary manner.
The current process no longer serves the public interest,
nor does it support the goals and objectives of land use
planning. Efforts to encourage the agency to modify and
streamline the process have failed. We believe that
congressional oversight and even legislation is necessary to
encourage the agency to modify and streamline the permit
process.
I appreciate this Subcommittee providing this oversight
hearing, and I am happy to answer any questions or provide
further information. Thank you.
[The prepared statement of Mr. Mumm follows:]
Statement of Greg Mumm, Executive Director, BlueRibbon Coalition
Dear Chairman Bishop and Members of the Subcommittee,
The BlueRibbon Coalition (BRC) would like to thank you for the
invitation to testify regarding our concerns about management of the
National Forest System.
BRC is an Idaho nonprofit corporation with individual, business,
and organizational members in all 50 states. As a national recreation
group that champions responsible recreation and encourages individual
environmental stewardship, BRC focuses on enthusiast involvement
through membership, outreach, education and collaboration among
recreationists.
BRC members use motorized and non-motorized means, including off-
highway vehicles, snowmobiles, horses, mountain bikes, personal
watercraft, hiking and other means to access state and federally
managed lands and waters throughout the United States, including those
throughout the National Forest System. BRC has a longstanding interest
in the protection of the values and natural resources found on those
lands and waters, which it advances by (1) working with land managers
to provide recreation opportunities, preserve resources, and promote
cooperation between public land visitors; (2) communicating with
administrative officials, elected officials, policymakers, the media
and the public, consistent with its nonprofit status; and (3)
protecting and advancing its members' interests in the courtroom on
specific matters implicating public lands and waters access issues.
EXECUTIVE SUMMARY
We appreciate the Subcommittee providing oversight on regulatory
roadblocks to land use and recreation. If the reform of the National
Environmental Policy Act or the Endangered Species Act could be
described as ambitious giant steps toward more efficient regulatory
framework for the management of Public Lands and National Forests, then
revision of the U.S. Forest Service Planning Regulations would be a
reasonable baby step. A rational and workable planning policy is
absolutely essential for the future of our National Forest System.
The U.S. Forest Service (USFS) freely admits that its current
planning regulations are costly, complex and procedurally burdensome.
Sadly, the USFS has proposed new planning regulations that only make
the situation worse. The new ``Proposed Planning Rule'' threatens to
create a situation that will exacerbate, not resolve, the planning
gridlock accelerating through the agency.
At a time when federally managed lands should be contributing to
the economic vitality of our nation, it is unacceptable that the
recreation permit process as it is currently implemented on U.S. Forest
Service lands is overly bureaucratic, expensive for both agencies and
the public and often applied in an unfair and arbitrary manner. The
current process no longer serves the public interest nor does it
support the goals and objectives of land use planning. Oversight, and
perhaps ultimately legislation, is necessary to encourage the agency to
modify and streamline the permit process.
The organized motorized recreation community supported the 2005
Travel Management Rule (TMR) based on the growing importance of
recreation on Forest Service lands, a need for clearer management
guidance and the recognition that effectively managed motorized
recreation is a legitimate use of the National Forest System.
Motorized recreation is not a single faceted end product, but a
means to nearly every form of recreation on National Forests. Virtually
any recreationist relies on vehicular transport from their place of
residence and along the Forest transportation network, even for
activities some would label ``non-motorized'' such as hiking,
backpacking, photography or nature study. The true economic impact of
the motorized transportation network on the National Forests is immense
but not properly quantified.
A primary impetus for the 2005 TMR was to eliminate ``open''
designations and to inventory and regulate the associated network of
``user created'' or ``unauthorized'' routes. Unfortunately, the TMR has
been incorrectly interpreted by many preservationist interests within
and beyond the Forest Service to justify landscape level closures of
not only ``user created'' routes but well established, mapped routes
historically part of local transportation systems. In some areas this
flawed approach has resulted in significant reduction in available
public recreation resources and strained relationships with state and
local governments.
SUMMARY OF CONCERNS WITH THE PROPOSED PLANNING RULE
From its outset BRC has been extensively involved in the Planning
Rule revision process. We have provided the consistent message of
concern that in this current effort to develop a new Planning Rule, the
Forest Service has strayed far from the core purpose for revisiting the
agency's planning regulations. In fact, the Proposed Rule threatens to
create new, undefined goals and criteria which will exacerbate, not
resolve, the planning gridlock accelerating through the agency. It is
ironic that the agency continues to be mired in a decades long effort
to promulgate valid rules intended to make more streamlined the content
of Forest Plans and more efficient the process by which they are
created. At the risk of belaboring the obvious, it should not take a
Forest 10, 8 or even 5 years to revise Forest Plans, which are
supposedly obsolete in 10 years. The Proposed Rule does not attempt to
build on the lessons learned in prior efforts, but instead threatens a
new vision fraught with uncertainty.
BRC has consistently urged the Forest Service to steer this effort
back to its necessary focus to: (1) fill the current regulatory void;
and (2) create efficiency and expediency in the Forest planning
process.
There have been repeated requests by organizations (including BRC),
retired Forest Service personnel, local government entities,
individuals, and even members of Congress to take the time to collect
all the necessary information to properly inform the process and get
this right this time. Getting it right will require detailed analysis
of the wave of public input and changes to the current product. The
Forest Service has not heeded these diverse requests, but continues to
push for completion in 2012, conspicuously before the upcoming general
election. We cannot help but question whether this rush is politically
motivated. If so, we emphatically state that proper management of our
public lands and their resources is most certainly not the place to
garner political favor.
Sadly, the Forest Service appears singularly focused on this
defined path with little change in the determined direction. In spite
of input from experts, local entities and citizens who are most
connected to and affected by the outcome, by all indication, the Forest
Service is resolved to inexorably adopt something very close to the
current Proposed Rule. If its fundamental underpinnings were correct,
BRC would be the first to back such a rule. However, this Proposed Rule
does not carry the broad support from the spectrum of those affected
because a long history demonstrates it will make things worse.
To summarize BRC's overarching concerns:
The proposed Planning Rule continues to stray far
from congressional multiple use mandates, including the mandate
to provide a wide range of diverse recreation. Simply including
references to recreation in the proposed Planning Rule is not
sufficient to comply.
The proposed Rule fails to meet the purpose and need.
It fails to make the Forest Planning revision process less
costly, burdensome and time consuming.
The proposed Rule fails to prioritize creating and
protecting jobs and providing a wide range of diverse
recreational activities.
The proposed Rule inappropriately emphasizes
preservation over multiple use
The proposed Rule injects ``viable population''
requirements suspiciously close to provisions in the 1982 Rule
which litigants used to hamstring countless agency projects.
Efforts to address the use of science will not
properly insulate agency discretion but provoke improper debate
over what/whose ``science'' is ``best'' which will delay the
process and make agency decisions more vulnerable.
New terms and concepts and the dilution of
established definitions are confusing and create fertile ground
for increased litigation.
``Public engagement'' requirements distance the
decision making process from the local area and potentially
make plans more vulnerable to litigation.
Monitoring requirements are unrealistic and would eat
up budgets for on-the-ground work.
The Scientists' Review of the Proposed Regulations
threatens violation of the Federal Advisory Committee Act,
Note: An expanded version of the above bullet list, along with
comments on specific sections of the Proposed Planning Rule can be
found in the attached formal BRC Comments on the FS Planning Rule DEIS
or found on the web at: http://www.sharetrails.org/uploads/
BRC_Comments_on_FS_Planning_Rule-DEIS_05.16.11_FINAL.pdf
SUMMARY OF CONCERNS WITH TRAVEL MANAGEMENT
The organized motorized recreation community supported the 2005
Travel Management Rule (TMR) based on the growing importance of
recreation on Forest Service lands, a need for clearer management
guidance and the recognition that effectively managed motorized
recreation is a legitimate use of the National Forest System.
Motorized recreation is not a single faceted end product, but a
means to nearly every form of recreation on National Forests. Virtually
any recreationist relies on vehicular transport from their place of
residence and along the Forest transportation network, even for
activities some would label ``non-motorized'' like hiking, backpacking,
photography or nature study. The true economic impact of the motorized
transportation network on the National Forests is immense but not
properly quantified.
As noted above, the primary impetus for the 2005 TMR was to
eliminate ``open'' designations and to inventory and regulate the
associated network of ``user created'' or ``unauthorized'' routes that
were created by a legacy of ``open'' designations. Unfortunately, in
many Forests the TMR has been incorrectly interpreted by many
preservationist interests within and beyond the Forest Service to
justify landscape level closures of not only ``user created'' routes
but well established, mapped routes historically part of local
transportation systems.
Many units have proceeded from the flawed, if not illegal,
assumption that motorized access inherently causes impacts and should
be prohibited unless the complete absence of impacts or controversy can
be established by continuing use advocates.
Trail based recreation is a complex subject. Effective management
requires an understanding of the particular demand, opportunities and
user behavior in any given locale. The Forest Service generally lacks
personnel with the specialized knowledge to evaluate and implement this
understanding. In the rare instances where it exists, recreation
specialists' (e.g. Trails Unlimited) input is not followed.
A wave of litigation has predictably followed publications of new
Motor Vehicle Use Maps under the TMR. The changes following that
litigation are often not predictable but can influence broader agency
policy. Examples include preservationist emphasis on the Subpart A
minimum road system, Subpart C snowmobile exemption and duty to
``minimize'' impacts, all of which have created additional means by
which to threaten local managers and paralyze effective local
management of National Forests.
SUMMARY OF CONCERNS WITH SPECIAL USE PERMITS
Special Recreation Permits (SRP) are supposed to be a tool for
managing recreation use; reducing user conflicts; protecting natural
and cultural resources; informing users; gathering use information; and
obtaining a fair return for commercial and certain other uses of public
land.
The recreation permit process as currently implemented on Forest
Service managed lands is overly bureaucratic, expensive for the agency
and the public, and often applied in an unfair and arbitrary manner.
Efforts to encourage the agency to modify and streamline the process
have failed, even when those efforts were supported by agency policy.
The current process no longer serves the public interest or supports
the goals and objectives of land use planning. The recreation permit
process must be revised.
The permitting process has become so complicated and costly that
most ``nonprofit club events'' simply cannot comply with the
requirements. In addition, historic and popular competitive events that
have been occurring without problems have recently been subjected to
arbitrary fees. In some areas, the application process to obtain an SRP
is being used to prohibit and/or severely restrict otherwise allowable
activities. Even where internal solutions are proposed by regulation or
individual units, they have been challenged or applied inconsistently.
A legislative solution is needed.
BRC and other recreation stakeholders have appealed to legislators
to pass legislation that will modify and streamline Special Recreation
Permit/Special Use Permit direction to better serve the public interest
and support the goals and objectives of land use planning. We believe
legislation is necessary to increase efficiency and efficacy of the
process to permit various recreation activities on National Forests.
While this hearing focuses on the Forest System, virtually identical
issues plague lands managed by the Department of Interior.
Specifically, this legislation will direct the Secretary of Agriculture
and the Secretary of the Interior to make the following changes:
Historic and regularly permitted events held by non-
commercial clubs or organizations that occur on roads, trails
and areas designated for public use should be approved based on
prior or expedited analysis, so that little or no new analysis
is required for the permit process.
Nonprofit clubs should be recognized as distinctly
different from commercial operations, outfitter and guide
businesses, ski areas and other private for profit enterprises.
Recognizing that increased partnering with public
lands users will become necessary as budgets tighten, there is
a need to leverage the resources available from clubs and
organizations that hold events on National Forests and Public
Lands. Competitive event SRP applicants should be credited for
work performed, such as trail maintenance, and the credit
applied towards any ``cost recovery'' fees.
Currently, cost recovery is not required if the
permit can be authorized with no more than 50 hours of staff
time. 49 hours of staff time is free, but 51 hours is billed at
51 hours. The first 50 hours should be free, regardless of the
total number of hours.
These are but a few of the examples of the illogic of the existing
situation. It is time for change.
______
Mr. Bishop. Thank you.
Dr. Stewart?
STATEMENT OF DR. RON STEWART,
NATIONAL ASSOCIATION OF FOREST SERVICE RETIREES
Dr. Stewart. Thank you.
Mr. Bishop. Make sure you are turned on there.
Dr. Stewart. OK. Thank you.
Mr. Bishop. All right.
Dr. Stewart. I am pleased to be here representing the
National Association of Forest Service Retirees. I am a
volunteer and here at my own expense, and that is because I
believe in the subject.
I have been the chair of the Forest Service Regulations
Review Team for the last two efforts of forest planning
regulation proposals, and I am reminded that the last
responsibility I had before leaving the Forest Service in 1999
was rolling out what was supposed to be the ultimate solution
to planning regulations under Chief Dombeck. There have been
several others that have never seen the light of day that were
internal and others that have ended in litigation.
In response to the agency's request for comments, we
provided a detailed written response, and with your permission
I would like to include a copy of the full comments that we
provided as part of our record.
Mr. Bishop. We will assume that is part of your written
testimony.
Dr. Stewart. Yes. Thank you. I would like to focus today on
five key issues: the document and process complexity, the NEPA
requirements and analysis, the diversity requirement, the use
of best science and the impact on local communities.
The complexity issue. We believe that the overall content
of the proposed rule is overly ambitious and optimistic. It
will be complex, costly, and it promises much more than it can
deliver. Rather than providing a simplified, streamlined
process for developing and amending plans, we fear that the
opposite will result, and I think several of the other
witnesses this morning have alluded to the same thing.
Further, the proposed planning regulations purport to
establish new purposes and priorities for the national forests
and grasslands, such as dealing with climate change and
providing ecosystem services for which there are no statutory
authorities.
With current and anticipated Federal budgets and the low
levels of management activity anticipated for National Forest
System lands, it may be timely and beneficial to American
taxpayers to model forest planning on Chief Pinchot's The Use
of the National Forest concept. I have a copy of that here.
This was given to every forester. It was to be kept in their
pocket wherever they went. I note that the proposed planning
regulations are 48 pages, 30 of which just describe what the
planning regulations are supposed to do. This is 42 pages.
Now, I recognize that this is overly simplistic in today's
environment and with the complex rules and regulations and
public interests. However, I still think the concept is sound,
the bare minimum written in plain language so anybody can
understand it.
The National Association of Forest Service Retirees
strongly recommends that the rule for planning for national
forests and grassland management be simplified to a land zoning
process with articulation of purposes for and expectations of
management activities, uses and outcomes for each zone.
Analyses should reflect only the requirements of the Multiple
Use Sustained Yield Act, the National Forest Management Act and
other relevant Federal statutes such as the Endangered Species
Act, Clean Air Act and Clean Water Act.
Forest planning and NEPA. The proposed planning rule
contributes to complexity by forgetting or perhaps ignoring a
unanimous Supreme Court case that ruled that a forest plan, in
this case the plan for the Wayne National Forest, did not
affect the environment because it was not ripe and therefore
not justiciable. This is Ohio Forestry Association, Petitioner
v. The Sierra Club.
The court's decision stated, ``As this court has previously
pointed out, the ripeness requirement is designed to prevent
the courts, through avoidance of premature adjudication, from
entangling themselves in abstract disagreements over
administrative policies and also to protect the agencies from
judicial interference until an administrative decision has been
formalized and its effects felt in a concrete way by the
challenging parties.''
Clearly the proposed rule and ensuing forest plans will not
have concrete effects on the ground until projects under those
plans are actually proposed, and it is at the project level
that NEPA should be used.
We strongly recommend dispensing with NEPA requirements for
the planning rule, not dispensing with public input because
that is extremely important, but for requirements for the
planning rule and for the forest plan revisions and amendments
since there is no commitment to any activity on the ground or
preclusion of further plan amendments to allow activities and
no effect on the environment of the planning actions
themselves.
Maintaining diversity. We are pleased that the proposed
rule no longer requires providing for species diversity at the
population level and recognizes that Forest Service lands
provide only a portion of the needed habitat for species as
part of a larger landscape. However, it now requires that they
measure and provide in the forest plan to maintain--I am sorry.
History has shown that the maintenance of viable populations is
impossible and that it is not the responsibility of the Forest
Service to do that.
My time is up, so I will just stop there, and you will have
the rest of my comments in the record.
[The prepared statement of Dr. Stewart follows:]
Statement of Dr. Ronald E. Stewart, Forest Service Planning Regulations
Review Team, National Association of Forest Service Retirees
Introduction
I am pleased to be here this morning representing the National
Association of Forest Service Retirees (NAFSR) on the subject of the
most recent Forest Service draft forest planning regulations released
in the Federal Register Volume 76, Number 30, pages 8480-8528,
published on February 14, 2011 for public review. The NAFSR is a non-
profit, non-partisan organization dedicated to the promotion of the
ideals and principles of natural resources conservation upon which the
U.S.D.A. Forest Service was founded. It is committed to the science-
informed sustainable management of national forests and grasslands for
the public good.
NAFSR selected a team of its members to evaluate the most recent
draft forest planning regulations proposal. I served as the leader of
this team. The team had a combined length of service of more than 150
years and breadth of experience including the Office of General Counsel
and former line officers, from District Ranger, Forest Supervisor,
Regional Forester, Station Director and Deputy Chief spanning five
Regions, an Experiment Station and the Washington Office. We also
received individual comments from several of our members that have been
incorporated in our response. A number of these comments included
information provided to our members by local government officials.
In response to the Agency's request for comments, we provided a
detailed written response, including recognition of positive aspects of
the draft regulation. I have included a copy of our comments for the
Record of this Hearing. In my testimony, I will focus on five key
issues: document and process complexity, NEPA requirements and
analysis, the diversity requirement, use of best science, and the
impact on local communities.
Complexity
We believe that the overall content of the proposed rule is overly
ambitious and optimistic, complex, costly, and promises much more than
it can deliver. Rather than providing a simplified, streamlined process
for developing and amending plans, we fear that the opposite will
result. This is especially troubling in what are likely to be difficult
times for funding of federal programs of all kinds.
Without addressing the critical issue of the fundamental purposes
of the National Forest System in this age of controversy, it is
unlikely that any of the current controversies involving the purposes
for and uses of national forests and grasslands will be resolved by the
proposed rule. This issue must be addressed by Congress if there is to
be a change from core principles and purposes as set forth in the
Multiple Use Sustained Yield Act (MUSY) and reaffirmed by Congress in
the National Forest Management Act (NFMA) of 1976. Nonetheless, the
proposed planning regulations purport to establish new purposes and
priorities for the national forests and grasslands, such as dealing
with climate change and providing ``ecosystem services,'' for which
there are no statutory authorities. One might stretch the legal
provision of ``without impairment of the land'' to include management
for ``ecosystem restoration,'' however, this should be clearly stated
or clarified by Congress.
While the proposed rule is thorough, it is long and tedious to
read. At the same time, it is short on useful and workable details--and
the devil is in the details. We are told that more information on how
the promises in the rule and explanatory materials will be fulfilled
will be found in the Forest Service Manual and Handbook Directives to
be issued at a later date. Unfortunately, given the lack of trust of
the Agency among many of the most vocal and litigious members of the
public, this is not likely to bring much comfort. Further, while many
of the goals in the proposed rule are commendable, such as coordinating
across the landscape, they may be unattainable. With current and
anticipated federal budgets and the low levels of management activity
anticipated for National Forest System lands, it may be timely and
beneficial to American taxpayers to model forest planning on Chief
Pinchot's ``The Use of the National Forests'' concept.
NAFSR strongly recommends that the rule for planning national
forest and grassland management be simplified to a land-use zoning
process with articulation of purposes for and expectations of
management activities, uses, and outcomes for each zone. Analyses
should reflect only the requirements of MUSY, NFMA, and other relevant
federal statutesuch as the Endangered Species Act, Clean Air Act and
Clean Water Act.
Forest Planning and NEPA
The proposed planning rule contributes to complexity by forgetting,
or perhaps ignoring, a unanimous Supreme Court case that ruled a forest
plan, in this case the plan for the Wayne National Forest, did not
affect the environment, was not ``ripe'' and therefore was not
judiciable (OHIO FORESTRY ASSOCIATION, INC., PETITIONER v. SIERRA CLUB
et al. May 18, 1998).
The proposed rule itself is accompanied by a Draft Environmental
Impact Statement (EIS) that finds a lack of effect on the environment
from a programmatic regulation or forest plan. The Court's decision
stated: ``As this Court has previously pointed out, the ripeness
requirement is designed `to prevent the courts, through avoidance of
premature adjudication, from entangling themselves in abstract
disagreements over administrative policies, and also to protect the
agencies from judicial interference until an administrative decision
has been formalized and its effects felt in a concrete way by the
challenging parties.' '' Clearly, the proposed rule and ensuing forest
plans will not have concrete effects on the ground until projects under
those plans are actually proposed.
NAFSR strongly recommends dispensing with NEPA requirements for the
planning rule and for forest plan revisions and amendments, since there
is no commitment to activities on the ground (or preclusion of further
plan amendments to allow activities) and no effect on the environment
of the planning actions themselves. The intent, however, is not to
eliminate the public engagement process in developing forest and
grassland plans. In the interest of full display NAFSR would like to
see an economic analysis of the cost of implementing the planning rule.
Maintaining Diversity
We are pleased that the proposed rule no longer requires providing
for species diversity at the population level and recognizes that
Forest Service lands provide only a portion of needed habitat for
species as part of a larger landscape. NFMA requires diversity only at
the ecological community level. However, the proposed rule does not
include the phrase ``to meet overall multiple-use objectives'' to make
clear that the Forest Service obligation to and purpose for providing
diversity of plant and animal communities is in the context of the
balance required to meet overall multiple-use objectives.
Maintaining viable populations of any species should not be a
requirement of the planning regulations because there is no such
requirement in the NFMA or any other federal statute. Perhaps this is
for good reason, as population viability is an outcome influenced by
many factors beyond habitat and outside of the control of a national
forest or grassland. Further, it is an outcome only discernible at some
distant point in the future. Measuring and proving that a forest plan
will ``maintain'' a viable population is impossible, leaving the Forest
Service vulnerable to lawsuits. The proposed rule also creates a new
obligation to ``conserve'' fish and wildlife species that are
``candidates'' for listing under the Endangered Species Act (ESA). This
will require that the agency develop recovery-like plans for
conservation of candidate species even though recovery plans are not
required for unlisted species by the ESA. It will also provide
additional fertile ground for litigation.
Under the Public Trust Doctrine, state and other federal agencies
are mandated to manage species viability at the population level. Since
maintaining viability of any plant or animal populations remains
challenging and technically infeasible, the agency has necessarily
relied on surrogates and predictive models to satisfy this requirement.
If as we maintain, this requirement is unachievable, the requirement
itself may be invalid. Thus, we commend the agency for returning to the
original language of NFMA and focusing on maintaining the diversity of
plant and animal communities in the planning area with consideration of
the role that the national forests and grasslands play in the larger
landscape.
The proposed species diversity approach using ``fine'' and
``coarse'' filters may be an improvement over the current process, but
will also become the subject of future litigation. Additionally the
regulation proposes to expand the ``maintain viable populations''
requirement to include invertebrates such as slugs and insects, plants,
and fungi. This will end up continuing the futile exercise of ``survey
and manage'' that brought forest activities to a snail's pace, if not
to a grinding halt in the range of the northern spotted owl.
NAFSR strongly recommends reliance on the NFMA requirement for
diversity in order to meet overall multiple-use objectives and
coordination with the states and other federal agencies responsible for
population management under state statutes or the ESA for all other
species concerns in forest and grassland planning.
``Use of Best Science''
The Forest Service has chosen to place in regulation at draft
Section 219.3 mandatory requirements that the agency extensively
document and then determine what constitutes ``best available
scientific information'' in the planning process. While a laudable
objective, this requirement is nothing short of astonishing in view of
the volume of litigation which has burdened the agency in recent years,
much of it involving contested science.
To place such a regulatory burden on the agency is unwise,
unnecessary as a matter of policy or law, unfunded, unstaffed and (as
far as we know) unprecedented in federal regulation on such a broad
scale. Not only must the agency take into account ``best science,'' but
such science must be documented and an explanation given regarding how
it was considered.
Science does not come labeled ``good, better, best'' and its
adequacy is often a matter of professional judgment or the ``eye of the
beholder.'' The draft regulation mandates the consideration of rapidly
evolving scientific fields in which there is substantial disagreement
within the scientific community. Yet the above quoted regulation would
require the responsible Forest Service officer to determine which
scientific information is ``the most accurate and reliable'' in every
field. This is an impossible burden. Further, there are valid, non-
scientific sources of knowledge relevant to forest planning, such as
local accumulated wisdom from years of experience and ``trial and
error.''
NAFSR strongly recommends that forest planning use science and
other sources of knowledge that are applicable and relevant to inform
analyses and decisions.
Impact on Local Communities
The necessity and difficulty of local engagement in planning
increases as the agency increases its attempt to plan, coordinate, and
implement programs and activities at the landscape level. The Forest
Service Planning Regulations should assure Forest Plans are written in
partnership with the states in which the National Forest is located and
in consideration of local, regional, and national needs and concerns.
It is also important to retain intergovernmental coordination in the
proposed rule. Communities--including Tribal entities--in close
proximity to or socially and economically dependent on a national
forest or grassland should be a partner in developing a National Forest
Land Management Plan. The final rule should include provisions for land
exchanges, conveyances and adjustments with states, communities and
tribal entities.
However, while local government coordination is essential, this
requirement places a heavy burden on the limited resources available at
the local level. This is especially true now as local governments find
themselves with reduced budgets and staffing.
Counties and communities will need help, not additional paperwork
and staff time.
Concluding Remarks
The Forest Service has attempted in good faith to revise the
original planning regulations a number of times beginning in the early
1990's with no real success. My personal experience suggests that the
problem is not so much in the process itself but in the polarization of
the various interest groups around their individual values and
preferences. While values and preferences inform our judgments about
what is acceptable and right, rarely do people base their public
arguments for or against a proposed action or activity on this basis.
Rather, all sides exploit uncertainties in the science to advance their
point of view. In response, the Agency produces larger and more complex
documents with lengthy discussions of the science. Since the underlying
differences in values and preferences are never identified, understood,
and evaluated in the final decision, the issues are not resolved and
frequently end in appeals and litigation.
______
Mr. Bishop. Thank you. I appreciate that.
We will now turn to questions for the witnesses. I am going
to go at the very end, so, Mr. Tipton, if you would like to
start this off--you were the first one here--I would appreciate
it.
Mr. Tipton. Well, thank you, Mr. Chairman and Ranking
Member. I appreciate you pulling this together. I would like to
note that my questions are going to be focused primarily around
the special use permits as regards to water.
Chief Tidwell, I appreciate you and the rest of the panel
members being willing to be here today. I have a concern that I
know that you are aware of. We had issued a letter to Secretary
Vilsack. My office was not contacted about the implementation
of this new clause regarding water rights for the State of
Colorado for the ski industry, for our grazing permits, at any
time, and I had to request a meeting with Forest Service
representatives before any information was offered to my office
on this issue.
During the October 12 meeting, I was informed that the new
clause would be signed within a month with little or no
outreach to Region 2 of the Forest Service or to the
communities and industries affected by this requirement. I
would like to know, how does the agency justify this lack of
public notice, and particularly when enacting a requirement
that could have massive impacts on a variety of economies in
Colorado?
Mr. Tidwell. Mr. Congressman, we did issue an interim
directive on one of the clauses that we use in our ski area
permits. The intent of that was to clarify the clause that we
put in place in 2004 to address water rights with ski areas.
There was an urgency with a ski area that exchanged hands this
fall to be able to move forward, and we issued that permit to
that new operator. There was some urgency to be able to get
this interim directive out so that we could move forward and
that operation could continue. The intent was to clarify what
we put in place in 2004.
Mr. Tipton. OK. Well, we are talking about urgency, and for
the Forest Service, to be clarifying, I would like to refer you
back. There was a Federal Water Rights Task Force, 1996, that
was addressing this very concern. The task force concluded,
``Congress has not delegated to the Forest Service the
authority necessary to allow it to require that water users
relinquish part of their existing water supply or transfer
their water rights in the United States as a condition for the
grant or renewal of Federal permits.'' So don't you see that
you are in conflict with the will of the Congress?
Mr. Tidwell. It is my understanding of that task force
report that it was referring to in-stream flow, in-stream
flows. Since then there has been numerous court decisions that
have supported that the Forest Service does have the authority
and also the responsibility to use the terms and conditions to
protect the public's interest when there is a need with water.
So we have continued to use our terms and conditions with our
special use permits to protect the public's interest, to
protect the resource and then allow for the occupancy and use
of these lands.
Mr. Tipton. You know, during some of our conversations you
had brought up use for the ski resorts, snow making, to be able
to have ponds and to be able to irrigate for our ranchers, to
be able to develop that.
Just from your comment right now, I think you probably
highlighted one of the concerns. You said other uses. What
provisions are going to be in this new rule that is going to
guarantee that the ski areas, our ranchers are going to be able
to irrigate, they are going to be able to make snow, or are you
going to be able to hijack that water?
Mr. Tidwell. The intent of our clause in the ski area
permits is to tie the water to the use. When we make a
decision--and with ski areas it is a very long-term decision,
40 years--a commitment to develop these lands for recreational
uses for the public, when water is necessary to make that a
viable operation we want to make sure that the water stays
connected with that permit so that the public can continue to
enjoy in this case downhill skiing.
Mr. Tipton. Have you ever had any examples to where a water
permit has been sold off?
Mr. Tidwell. No.
Mr. Tipton. So there really isn't a concern.
Mr. Tidwell. The concern is what could occur in the future
and especially as water becomes more and more valuable. You
know, the concern is that in the future that that water right
has such a high value that it is more than the value of the
operating ski area, that it would be severed so that the public
would lose that opportunity and then we would have to deal with
a resort that no longer has the capability to provide the
adequate snow-making or the base facilities to support the
recreating public.
So the intent is just to be able to tie the water with the
use to make sure that that is going to continue in the future.
Mr. Bishop. All right. We will have multiple rounds
obviously on this question.
Mr. Tipton. Thank you.
Mr. Bishop. I ask unanimous consent that the gentlelady
from Wyoming be allowed to join us on the dais and participate.
OK. Mr. Grijalva, questions?
Mr. Grijalva. Thank you, Mr. Chairman. Chief Tidwell, is it
a good idea to be conducting land use planning in 2011 using
the planning procedures from the Reagan Administration?
Mr. Tidwell. We have been trying to revise and amend the
1982 regulations for close to 20 years to eliminate some of the
unnecessary analysis, some of the unnecessary alternative
development that is required in the 1982 rule.
Mr. Grijalva. So it is not a good idea?
Mr. Tidwell. No. We need a new rule.
Mr. Grijalva. And how many forest plans are currently out
of date and need to be revised?
Mr. Tidwell. There are I think it is over 65 plans need to
be revised. That means those are plans that have been in place
for over 15 years.
Mr. Grijalva. And under the old rule, isn't it correct that
completing a new forest plan often takes five to eight years?
Mr. Tidwell. Yes. That has been our experience. Five to
seven years, sometimes actually more than that to actually
revise under the 1982 regulations.
Mr. Grijalva. And under the proposed rule, what would be
the estimate of how long it would take?
Mr. Tidwell. We are estimating two to four years and that
over time, as we learn how to apply the new rule, we expect
that we will actually be able to shorten that.
Mr. Grijalva. Many of the witnesses here today have and
will state in their testimony that the rule will not save a lot
of money. First, can you estimate what cost savings might come
from a new rule and why would that lead to cost savings?
Mr. Tidwell. We eliminate some of the unnecessary analysis
that we are currently required to do, and sometimes that takes
years to do the analysis, the modeling that is not necessary.
We also eliminate certain alternative development that
would maximize one use at the expense of other uses that are
not feasible, but it takes a lot of time to put that together.
Those are a couple of the things that we no longer would be
required.
When it comes to a management indicator species, we would
no longer be required to develop population trends of these
species, which is very time-consuming and there is a long track
record of preventing us from being able to carry out projects
on the national forest. This is also a concept that is not
supported by science.
Mr. Grijalva. Chief, I think it would be helpful, because
we are going to repeat this today a lot, if you would define
three terms for us: one, landscape scale planning, species
viability and species of conservation concern. In defining
these terms, can you explain what roles these concepts play in
the proposed rule?
Mr. Tidwell. Well, landscape scale are restoration
conservation. We recognize today that to restore these forests
we have to look at very large areas. It is no longer OK for us
to be able to look at small projects of maybe a few hundred
acres to a few thousand acres. We need to look at large
landscapes to really address the issues that we are seeing
today with insect and disease invasives. So it is to take a
look at a large enough area where we can make a change in that
landscape that it will actually make a difference and increase
the resiliency of forest health.
With species viability, the National Forest Management Act
requires diversity. It requires us to provide for diversity of
plant and animal species. The concept of viability is that in
our rule, this new rule, we look at species of conservation
concern. These are a limited number of species where there is
scientific evidence that they are at risk of existing.
We want to then focus on those species to make sure that
they remain viable, that these populations remain viable in the
future so that they are not then added to the threatened or
endangered list. We have taken steps to recognize that we are
limited to the inherent capability of the forest to be able to
provide for diversity. We made that very clear that we are
limited to the inherent capability.
We also recognize that if there are things that are
affecting diversity viability outside the control of the Forest
Service that we would no longer be held accountable like we are
under the 1982 rules. We would no longer have to deal with
diversity viability on a project level that we are required
currently under the 1982 rule.
Mr. Bishop. OK. You can give that third definition on the
next round here.
Mr. Tidwell. OK.
Mr. Bishop. Mr. McClintock?
Mr. McClintock. Thank you, Mr. Chairman. Chief Tidwell,
since the day I took office three years ago I have been
inundated by complaints from forest users about policies of the
National Forest Service, complaints that I have shared with you
and your subordinates on many occasions, complaints that were
amplified in a field hearing that this Subcommittee held in
Sacramento in September.
These complaints include imposing inflated fees that are
forcing the abandonment of family cabins that have been held
for generations, shutting down long-established community
events upon which many small and struggling mountain towns
depend for tourism, expelling longstanding grazing operations
on specious grounds, causing damage both to the local economy
and to the Federal Government's revenues, closing long used
roads, many of which are parts of county road systems essential
to local residents and even obstructing county efforts to
provide maintenance from local budgets to keep those roads
open, obstructing the sound management of our forests, creating
both severe fire dangers and chronic unemployment.
You have heard echoes of those complaints on this panel. I
would like to know specifically what you have done to redress
these grievances.
Mr. Tidwell. Mr. Congressman, one of the things with the
first concern you raised about the fees for our recreation
residences, following the law that Congress passed to change
the fee structure, there have been a lot of efforts to revise
that. We have been very interested in working with Congress on
that, but until Congress passes a new law we are required to
follow the current law, which will result in some additional
fees for some of these cabins.
On the concern with----
Mr. McClintock. Hold on. Let me stop you right there. The
law requires market rates. You assessed these at the very top
of the market and haven't reassessed them since, which invites
the question if you were charging market rates, then why aren't
these cabin sites and grazing lands being released out if that
is the market rate? You have priced them far above the market
rates. They are not being released. That ought to be a
screaming warning that you were charging well above market
rates for these cabins and for these grazing rights.
Mr. Tidwell. Well, the CUFFA Act requires that we do
appraisals every 10 years, and that is as often as we can do
appraisals. We don't make any adjustments up or down during
that 10-year period. You know, currently the rates have not
increased except at a very small rate because of Congress
taking the action at least in the past Congress to give us a
direction to not go forward with CUFFA and so those rates have
not gone up yet.
Mr. McClintock. Again, my question is what specifically
have you done to redress these grievances? So far I have heard
absolutely nothing.
Mr. Tidwell. Well, we continue to work with the rec
residents' homeowners associations. We continue to work with
Congress to try to find a solution to the existing----
Mr. McClintock. That is gobbledygook. What specific actions
have you taken?
Mr. Tidwell. The actions that we are taking is that we are
continuing to work with Congress and work with the Association
on different options----
Mr. McClintock. That is not an answer.
Mr. Tidwell.--that entail Congress.
Mr. McClintock. With all due respect, Chief, that is not an
answer to the question.
Let me go to the forest users if I may. Dr. Stewart
mentioned Gifford Pinchot. Between 1910 and 1915, he did a
series of lectures at Yale University in which he propounded
maxims for ``the behavior of foresters in public office.''
Among them, a public official is there to serve the public and
not run them. Public support of Acts affecting public rights is
absolutely required. It is more trouble to consult the public
than to ignore them, but that is what you are hired for.
I would like to ask the forest users how well they believe
the Forest Service is meeting these maxims of Gifford Pinchot.
Mr. Bishop. Is that to Dr. Stewart?
Mr. McClintock. I will start with Ms. Soulen-Hinson.
Mr. Bishop. And you have 17 seconds to do it.
Ms. Soulen-Hinson. Seventeen seconds. That is fast. How
responsive is the Forest System? You know, the Forest System, I
do believe they need a new planning rule, but I don't think
this is the right planning rule. It makes it more complex. They
are tied up in litigation. They can't address our needs, and it
is a real problem.
Mr. Bishop. All right. Thank you. Like I say, there will
probably be more than one round of this.
Representative Holt?
Mr. Holt. Thank you, Mr. Chairman. First, Chief Tidwell, I
wanted to give you a chance to say more if you choose to about
the definition of species of conservation concern. You touched
on it, but I think you were not able to finish your thoughts.
And then I wanted to ask a question about the travel
management or a couple of questions about that, but did you
want to say more about the species of conservation concern?
Mr. Tidwell. On species of conservation concern, we have
limited any viability requirements in our proposed rule to
these species of conservation concern. It will be a limited
number of species where there has to be scientific evidence
that indicates that they are at risk. Not just any species can
be put forward.
We also have put language in the rule to make very clear
that we will not be counting these species, but we will use
ecological conditions to ensure that we are providing for the
viability of these species to ensure that they are not going to
be added to the endangered or threatened list.
Mr. Holt. So, in a word, are you narrowing or broadening
the current rule?
Mr. Tidwell. We are narrowing the current rule.
Mr. Holt. OK. Thank you.
Mr. Tidwell. The current rule narrows.
Mr. Holt. Yes. Thanks. Could you explain? Let me get three
questions out here for you, and you can assign your time
appropriately then.
Could you explain how travel management can serve to save
the Forest Service money, and could you explain more about
travel management, how it gives or how it might give
flexibility to allow for such things as big game retrieval or
protecting commercial activities by reducing user conflicts?
And then more generally about this whole rule, the proposed
planning rule, do you expect it will serve to help clarify the
multiple use mandate and will it serve to remove the inherent
tension or lessen the inherent tension in this multiple use
mandate?
Mr. Tidwell. The first one with travel management, the
intent of that rule was two things: to ensure that there would
be motorized opportunities for the recreating public to access
and enjoy and, second, to reduce the resource impacts that were
occurring primarily from cross-country travel. And then the
third part of it is to identify a road system that is going to
be necessary for us to be able to maintain and provide for in
the future.
We have more roads. The 373,000 miles of roads, that is
more roads than we currently need to be able to manage or that
the public needs to access, or that we can afford to continue
to maintain. When we have soil erosions coming off of those
roads it impacts the water quality. In some cases, it makes it
much more difficult for us to be able to do timber harvest
activities, to do the restoration work on the national forests.
As far as with the user concerns, there are provisions that
allow the local unit when they go through the travel planning
to look at what is necessary at the local level, to provide for
access for game retrieval for instance. There is a lot of
flexibility that is built in that is done at a local level, at
that forest level.
And then with the planning rule, our intent is to make it
very clear that multiple use is essential. It is one of our
mandates. We are required to follow that, and it is important.
The challenge of course is always to find the balance.
So we believe that this rule does a much better job to
recognize and require components to address the various
different uses under the Multiple Use Sustained Yield Act and
do it in a way that we can move forward with the restoration of
our forests so they will continue to provide that full range of
benefits that we all rely on.
Mr. Holt. We are constantly aware of the tension that is
created by this multiple use mandate, and I hope that this plan
that you are proposing, process that you are proposing, will
help us kind of lessen that tension or have a method for
resolving it. Well, thank you.
I just wanted to comment, since maybe you intended to say
this, that the Forest Service has many times, probably six or
eight times, the mileage of the Federal Highway System, and we
can't possibly expect you to manage, maintain that kind of road
system I think. Thank you.
Mr. Bishop. Thank you. The gentleman from Idaho is
recognized.
Mr. Labrador. Thank you, Mr. Chairman. Margaret, can you
explain, in your opinion, where do you think the authority for
this new rule comes from? Specifically what statute do you
believe the Forest Service derives the authority to manage
wildlife for viable populations?
Ms. Soulen-Hinson. Congressman Labrador, Chairman Bishop,
Subcommittee Members, I have a great concern here with what is
going on when it comes to the issue of viability.
While the Chief states that viability won't apply to every
species or every project, it is something that they have in a
plan component, and plan components must apply. Every project
and activity must comply with the plan components, and
viability of species is one of the plan components.
Plus I don't think there is any--the criteria, anyone can
or a managing regional forester can name a species to the list
of species of conservation concern. I don't see how this is
narrowing those species that will be considered for viability
when it goes from vertebrate species under the current rule to
all species, fungus, moss and everything else. I just see it
opening up and broadening that and requiring more and more
analysis, so I think it is a horrible problem.
Mr. Labrador. OK. Thank you. Now sometimes in Congress we
just talk about rules and regulations and we forget about the
real effects, the real life effects. Can you explain to us
again what is going to be the real life effect to you, to your
family, to your industry?
Ms. Soulen-Hinson. Certainly. Right now our industry,
because of the viability issue over the big horn sheep
population, our industry, my family, we are going to lose 60
percent of our domestic sheep operation.
Now we live in a small, rural community, 5,000 people, two
stoplights in the whole county. We employ about 18 people. We
shop locally. We buy everything locally. This in essence will
eliminate our domestic sheep operation, and it has already put
two operators out of business and is severely limiting another.
Now, over the National Forest System land, about 23
percent, almost a quarter, of our industry will be impacted by
the viability issue over big horns, and that is across our
entire industry. Just think what happens. Twenty-three percent
of the industry. That means not just the sheep producers
themselves. That is the packers, the feeders, the woolen mills,
the processors, the textile industry. We just had Faribault
Woolen Mill just reopen in Minnesota, and a number of jobs have
come back on line there. This will have tremendous impacts on
us.
So, when the Forest Service says that they are redoing
their planning rule, and I do think they have to redo their
planning rule because it is ridiculous, but this isn't right.
We are severely impacting our rural communities across the West
with what goes on on our National Forest System lands.
Mr. Labrador. Do you have an estimate how many jobs are
going to be lost?
Ms. Soulen-Hinson. We did a study, the American Sheep
Industry did and, for every thousand head of sheep, it
translates into 18 jobs, so effectively on the Payette National
Forest it is going to eliminate about 12,000 head of sheep. And
if you take that across the West, it translates into a lot of
jobs.
Mr. Labrador. All right.
Ms. Soulen-Hinson. I think we estimated 50,000.
Mr. Labrador. All right. Thank you. Chief Tidwell, where in
the statute does the Forest Service derive the authority to
manage wildlife for viable populations?
Mr. Tidwell. It is under the National Forest Management
Act. It requires us to provide for the diversity of plant and
animals.
Mr. Labrador. Isn't wildlife already managed by the states
and in some cases by Fish and Wildlife?
Mr. Tidwell. Yes, but under the National Forest Management
Act we are required.
The thing that we are changing with this rule is we want to
focus on providing the habitat, the ecological conditions to
support the wildlife, the animals and the plants, versus to
take the focus under the 1982 rule that is more species by
species, counting species, tracking population trends. We
believe if we provide the ecological conditions, the habitat,
we will provide for the diversity in almost 95 percent of the
cases.
There are some situations where we have to do a little bit
more. I will use an example of a goshawk. For instance, we can
provide, say, a healthy ponderosa pine stand that provides
habitat for goshawks. We may also then have to take a look at
that and provide a few more snags. That is what we are talking
about to provide for wildlife diversity for viability. We want
to be able to measure, monitor the habitat, then that is how we
are going to provide for diversity. That is a significant
change from what we are held to currently in the 1982 rule, and
that is what our focus is going to be on.
Mr. Labrador. But when your goal is to eliminate
unnecessary analysis and burdens----
Mr. Bishop. All right. Let me interrupt here.
Mr. Labrador. I am sorry.
Mr. Bishop. Yes. We will come back to another round.
Mr. Labrador. OK.
Mr. Bishop. Mr. Broun?
Dr. Broun. Thank you, Mr. Chairman. Chief Tidwell, I have
two national forests in my congressional district in Georgia. I
was just out in Montana, and access is a huge issue.
Dr. Benishek, who is a Member of this Committee, has a bill
that would require more opening of access to recreation areas
in the national forest, and I myself as a trout fisherman and
as a big game hunter have run into a lot of roadblocks. In
fact, just this last week I wanted to get into some areas of
the national forest where I couldn't because there were gates
over hundreds and thousands of acres of national forest land
that would not allow motorized access.
Mr. Mumm talked about that in his testimony, and it is of
grave concern to me about how limited access there is in the
national forest for these so-called multiple uses. Hunting
plays an unquestionably significant role in recreation and
wildlife management and conservation throughout our national
forest.
The hunting industry and in particular the hunting guides
and outfitters depend heavily on the revenues generated from
the business of guiding hunters on national forest lands. When
access is a problem, then that hurts the outfitting business.
It hurts everybody who sells groceries, motels, et cetera. The
income from hunting supports local economies and fuels wildlife
and habitat conservation.
Despite these facts, the word hunting only appears just
once in your draft planning rules with the context of habitat
management. In fact, I have a bill that would require hunting
to be a consideration in all wildlife management on Federal
properties, and I hope that bill is passed into law because I
think it is extremely important just for the conservation of
wildlife for hunting and fishing to be considered as part of
their management plan.
Why is such an important activity given only a negligible
mention and offered little in the way of express protections in
a document that will guide management for every single land
unit in the National Forest System for the foreseeable future?
Why have you all not focused upon hunting and fishing and the
management of that in your proposed rules? It is unfathomable
to me.
Mr. Tidwell. Mr. Congressman, I share your concern and
interest with recreation activities' access. In fact, there are
171 million people that visit the national forests every year.
It creates incredible economic activity. It provides over
240,000 jobs. It provides over $14 billion of economic
activity, and hunting and fishing is a big part of that.
We want to make sure we are providing access, and that is
part of why we are going through the Travel Management Rule to
ensure that we will be able to provide that in the future.
Already through that process we have added over 12,000 miles of
motorized trails to this extensive system.
Your concern about the language in the draft, the proposed
rule, we heard that comment. One of the advantages that I have
over the panel today is that I have had a team looking at those
300,000 comments and we have had numerous discussions, so we
are factoring those comments, things that we heard on the
proposed rule into the final rule.
So, we heard that concern from a lot of folks and we want
to make sure that----
Dr. Broun. Chief, let me interrupt you because my time is
fixing to run out.
We have seen in Georgia a problem with human use and water
management with the core lakes being not in the management
plan, and we have seen water resources ruled to not be
utilizable by human beings in Atlanta, Georgia, in Gwinnett
County, which I am fixing to represent part of that county in
my new district hopefully if I am reelected.
I think it is absolutely critical that you put hunting and
fishing in the forefront of any rule that is put forward.
Whether we need a new rule or not, obviously that could be
debatable, but if you don't include specifically hunting and
fishing and access to those public properties that every
taxpayer in this land owns, then you are neglecting a
tremendous opportunity to make sure that those activities
continue forward, and I think neglecting to do so is going to
shut that off in the future.
Mr. Chairman, my time has expired. I yield back.
Mr. Bishop. Thank you. The gentlelady from South Dakota is
recognized.
Mrs. Noem. Thank you, Mr. Chairman. I appreciate that.
Chief Tidwell, I have a question. I want to follow up a
little bit on what Representative Labrador was talking about
because the National Forest Management Act does not mention
viable populations. Instead, this is what the Act says. It
requires the Forest Service to provide for diversity of plant
and animal communities based on the suitability and capability
of the specific land, which you mentioned.
But I think you forgot the second half of what that
sentence says. The second half of that sentence says that based
on the suitability and capability of the specific land area in
order to meet overall multiple use objectives and within the
multiple use objectives of the land management plan.
That is what my concern is. I am very concerned about the
viability requirement because that was the basis for Chief
Dombeck's remand of the Black Hills National Forest plan
revision in 1999, and that remand required an additional six
years to complete two forest plan amendments. Even two weeks
ago several environmental special interest groups filed a
lawsuit again challenging the management of the Black Hills
National Forest in my state with species viability as their
primary claim.
Now again, species viability is not required by the
National Forest Management Act, so I want to know why doesn't
the Forest Service use the revision of the planning regulation
as an opportunity to eliminate all the opportunities for
appeals and litigation that are cumbersome and is weighing down
the whole process?
Mr. Tidwell. We are using this opportunity with this
planning rule to clarify and make it very clear where we are
going to focus on diversity through providing ecological
conditions, and with this very limited number of species of
conservation concern we will continue to look at viability
through providing ecological conditions to ensure that those
species are not listed.
Mrs. Noem. Well, let me interrupt for a second because the
proposed rule mandates things such as species viability and
aquatic ecosystem restoration and maintenance, but it gives no
requirements, no requirements whatsoever, to implement other
multiple uses such as grazing, timber management, any of those.
So I am very concerned about this because the U.S. Court of
Appeals for the Seventh Circuit concluded that the U.S. Forest
Service does not have the discretion to ignore--does not have
the discretion to ignore--multiple use mandates that focus
solely on environmental and recreational resources.
Mr. Tidwell. We have made sure that in our proposed rule
that we do make it very clear on the importance of multiple use
and to make sure that multiple use objectives are considered
throughout all parts of the rule.
It is something we wanted to make sure that that was very
clear, and I am taking lengths and steps to make sure that that
is a key part of this rule and it is right that it will be up
near the front of the rule.
Mrs. Noem. Well, tell me. Maybe you covered this earlier,
but what is your definition of a viable population?
Mr. Tidwell. A viable population is a population of a
species that will continue to exist, not necessarily on any one
piece of land, but be able to continue to exist. That is one of
the things that the changes that we made, currently under the
1982 provisions we are required to not only care for that
species whether it even exists on the national forest or if it
could exist there or for actions that occurred off the national
forest.
We have made some significant changes to be able to focus
on providing the ecological conditions, the habitat to be able
to support these species, and under this very limited category
of species of conservation concern we still point out that it
has to be within the inherent capability of that land base--it
is not at the project level--and it has to be within the
authority of the Forest Service.
Mrs. Noem. Well, let me give you a specific example that we
are facing in South Dakota. Last summer, three brand-new
species of spiders were found and discovered on the Fort Pierre
National Grasslands in South Dakota. Nobody knows very much
about these spiders because we haven't seen them before, and
they are very hard to study because they are less than one
millimeter in size.
But I am concerned that the Forest Service is opening the
door for these types of species to be identified as species of
conservation concern, which would make forest planning more
difficult. It would make it more expensive and time-consuming
for the Fort Pierre National Grasslands, and it could
potentially undermine all the grazing programs that currently
happen there. So do you understand my concern with the
direction that you are going with the rule?
Mr. Tidwell. I share your concern, and that is why we have
taken the steps in our plan to ensure that that will not
happen.
We use the example of those spiders. When it comes to
species of conservation concern, there has to be clear
scientific evidence, one, that they exist and, second, that
they are at risk. So it can't just be another species or
another list or things that we have had to deal with under
survey and manage, for instance, to go out and collect
information about species that we don't even know if they exist
or not.
Mrs. Noem. But the risk still remains.
Mr. Tidwell. I am confident with the changes that we are
making from our proposed rule to final will make that very
clear about what we will be responsible to do and what we will
not be responsible to carry out.
Mr. Bishop. All right. Thank you.
Mrs. Noem. Thank you for coming. Thank you, Mr. Chairman.
Mr. Bishop. I am sure we will follow up on that point as
well.
Mr. Amodei, welcome to our Committee.
Mr. Amodei. Thank you for allowing guests to be here today,
Mr. Chairman. I appreciate it on the 60-day anniversary of my
being sworn into this organization.
Mr. Bishop. Is there a cake?
Mr. Amodei. Actually I thought we would wait until day 61
to commit to something like that.
Mr. Bishop. All right.
Mr. Amodei. Thank you for asking though.
Chief, my questions revolve around your travel management
plan testimony and with specificity, and I think it is fair
since one of the folks on the second panel is the chairman of
the Elko County Commission, it is with respect to the Humboldt-
Toiyabe National Forest, so I want to kind of focus that a
little bit if I might.
Could you describe the objective of your process in coming
up with a travel management plan in this instance for a
national forest, HT?
Mr. Tidwell. The purpose of travel management planning is
to ensure that we provide motorized recreational access and
access to management of the national forests and at the same
time to address resource impacts that occur from situations
primarily from cross-country travel or in some cases of some
unmaintained, nonmaintained roads and trails.
The purpose is to make sure that we can continue to provide
a system of roads and trails and that the recreating public not
only has that today, but they will have that in the future.
That is the purpose of the travel management rule.
Mr. Amodei. OK. And who does that? Is that something that
is done at the forest level?
Mr. Tidwell. Yes. They are done at the forest level through
extensive public engagement, visiting, working with local
communities to understand what they want, where they want
access, where they need access, along with the needs for
resource management of the national forest.
And so it is built on all that public comment, actually
what is sustainable, and it is something that we can continue
to manage in the future. Those are the things that are factored
into the decision.
Mr. Amodei. And describe for me the type of person at the
local level who would head up that effort when doing a travel
management plan. What are their qualifications? What is their
education? What is their title generally if you know?
Mr. Tidwell. It would depend on different forests. It could
be the planning staff. It could be the district ranger. It is
the forest supervisor that will actually be making the
decision. These are people that have experience dealing not
only with resource management but also with dealing with the
public to be able to make sure.
We are providing opportunities where the public is heard,
and we are factoring their concerns and comments into this
system of roads and trails.
Mr. Amodei. OK. Is there any economic analysis in this
procedure? To your knowledge, has there been any economic
analysis in the Humboldt-Toiyabe instance?
Mr. Tidwell. When it comes to just identifying the
motorized vehicle use map, that is to identify the current
system of routes and trails that are open for the recreating
public. It depends on if they are looking at additional trails
to add to that. They have to then deal with the economics.
We often look at what is the current cost of being able to
maintain this system. In Subpart A of the rule where we
actually look at just the road system--not the trails but just
the roads--we do need to look at the economics. What is going
to be the cost of being able to maintain this road system? That
needs to be factored.
Mr. Amodei. Perhaps I didn't make myself clear, Chief. Any
economic analysis in terms of the community or in the instance
of the Humboldt-Toiyabe? And for purposes of the second panel,
is there any local economic analysis?
When you talk about this collaborative, open, transparent
process, I assume that that means you talk with the local
planning authorities, which in the instance of the Humboldt-
Toiyabe is the county commission, who is the ultimate statewide
and local land use planning folks.
Is there any economic analysis to your knowledge of what
that does in the community when you make your decisions
regarding travel management plans in the Humboldt-Toiyabe? Not
the cost to maintain roads. What it is going to do in Elko,
what it is going to do in Carlin, what it is going to do in
other towns and cities affected.
Mr. Tidwell. We need to consider what those consequences
are. That is often what drives why we keep this road open
versus this other road if it not only accesses for recreation
but say it has access for a mine or it is necessary for
grazing. Those are the things that factor into those decisions.
So, we do look at the economic consequences of our
decisions to determine which roads need to stay open. Where do
we need additional roads? Which are some roads we no longer
need on the system that they are not providing for economic
activity? Those are the things that we factor in.
Mr. Amodei. And if that is not factored in, would you then
think that that analysis needs to be revisited?
Mr. Tidwell. It does need to be considered. And so, if
there are decisions that they are making that shuts down a
grazing operation or it shuts down a mine, for instance, which
I can't imagine that ever occurring, yes, that would need to be
reviewed.
Mr. Amodei. And, final for this round, how about recreation
impacts? If it adversely affects recreation impacts, should
that be considered also in the travel management plan?
Mr. Tidwell. Well, you have to look at the full mix of
recreational activities, not only the motorized activities but
also the nonmotorized, and then you have to look at what is the
necessary system that it will be able to provide for
recreational access but at the same time to also deal with
resource impacts, deal with impacts to wildlife, impacts to
hunting experiences. We have to look at the full mix when we
make those decisions.
Mr. Bishop. All right.
Mr. Amodei. And I understand my time is gone. So I assume
that is a yes, it needs to be part of the mix when you say full
mix?
Mr. Tidwell. Yes.
Mr. Amodei. Thank you. Thank you, Mr. Chairman.
Mr. Bishop. Thank you. The gentlelady from Wyoming? Welcome
home first of all. Do you have questions?
Mrs. Lummis. Thank you, Mr. Chairman, and I want to thank
the Chairman's indulgence and the Committee's indulgence of my
attendance at this hearing as a former Member of the Committee.
It is nice to be home.
A question for the Chief. Could the Forest Service
designate a species removed from the Endangered Species Act as
a species of conservation concern under your rules?
Mr. Tidwell. I am trying to think. If it is a species that
has been removed from that list, it would indicate that it has
been recovered and that there would no longer be a concern
about that species. So I am not saying it couldn't occur, but I
can't imagine why it would.
Mrs. Lummis. It might be helpful to clarify that for the
comfort level of those of us who see ongoing litigation of
species that have been removed. What about a species designated
as warranted but precluded?
Mr. Tidwell. If that is a species where there is evidence
that it is at risk, it would be a species that could be added
onto the list to ensure that we are providing the habitat, the
ecological conditions to provide for that species, yes.
Mrs. Lummis. So the Forest Service would not necessarily
take its guidance from the ESA and the U.S. Fish and Wildlife
Service? It might act independently?
Mr. Tidwell. Yes, based on scientific evidence that there
are certain very few, limited species that would be at risk
with the intent to prevent these species where there is
information that they are at risk, to prevent them from being
listed. That is the purpose of this concept of species of
conservation concern is to be able to maintain these species so
they are not listed so that you don't have to deal with that.
Mrs. Lummis. Are there not tools under the ESA and U.S.
Fish and Wildlife Service itself that provides for conservation
and habitat management plans for threatened but nonlisted
species or prior to the threatened status being placed on that
specie?
Mr. Tidwell. Yes. And we will continue of course to work
with Fish and Wildlife Service, but we have species of, for
instance, you could have, for instance, the goshawk is another
good example that is in your state that it is a species of
conservation concern, but by providing the ecological
conditions, the habitat, we are taking care of that. That is
the purpose of this is to get away from counting species but to
concentrate, focus on the habitat. If we provide that habitat,
then we provide for the viability. We provide for the
diversity. That is the concept that is behind our rule.
Mrs. Lummis. Thank you, Mr. Chairman. That gives me less a
comfort level than when I began my questioning, but I
appreciate very much, Chief, your response and I yield back.
Thank you, Mr. Chairman.
Mr. Bishop. Thank you. Let me take an opportunity to ask a
couple of questions. Once again, I think the last statement of
the gentlelady from Wyoming is significant here. There is a
lack of comfort level in what we are talking about here.
And if I could carry on what Mr. Broun and what Ms. Noem
said to you, I appreciate you telling us that multiple use is
the requirement for which you look at this job, and the Seventh
Circuit Court was specific in telling you that you have to
manage for multiple use here despite what this rule actually
says. So, Ms. Hinson, can I ask you how many times the word
grazing appears in this entire rule?
Ms. Soulen-Hinson. Once. We are right there with hunting.
Once.
Mr. Bishop. And when you were talking about a whole lot of
new terms in there that are not definable in law nor are they
definable in logic, does it give you, Ms. Hinson, a great deal
of--I mean, based on that, how do you think grazing is going to
fare in the planning process or the planning purposes under
this particular rule?
Ms. Soulen-Hinson. We will not fare well. I think there is
tremendous emphasis on conservation of species versus multiple
use and, as has been repeated here by a number on the
Committee, multiple use is a mandate. It has been held up
within court. That is what is in statute. There is no provision
in statute for viability of species, and certainly the states
have the statutory authority for managing species unless it is
through U.S. Fish and Wildlife Service where it has been an
endangered species.
Mr. Bishop. Thank you. So, Mr. Horngren, let me go back to
your experience, especially in litigation. Can you compare your
experience with survey and management under the Northwest
Forest Plan to what you see under the species requirement
proposed by this particular rule?
Mr. Horngren. Yes, Mr. Chairman. The survey and manage
program was part of the Northwest Forest Plan and did extend to
the mollusks and the lichens. It cost millions of dollars, two
years of surveys sometimes to get a project. The red tree vole,
who was one of these special species, had little five-acre
preserves around it wherever it was found, and it had 20 nests
in a project area, so it looked like a shotgun after they were
done applying it.
Just real briefly on the species of conservation concern, I
cannot understand how the Forest Service is imposing a legal
obligation on itself to preserve species at risk that it admits
is at risk. And in this case, I would like to submit for the
record the species of conservation concern list for Missouri
that is 25 pages long. Pity the Mark Twain National Forest.
[NOTE: The Missouri Species of Conservation Concern List
has been retained in the Committee's official files.]
Mrs. Horngren. Last, as Congressman McClintock said, the
rule as it is currently written is a bunch of gobbledygook. It
does not mention the word habitat once. Make it simple for the
courts. Make it simple for the planners. It mentions population
three times. I think they are going to have to be crawling
around on their hands and knees looking for them.
Mr. Bishop. I may come back for some other questions for
you as well.
Chief Tidwell, define spiritual sustenance that you have in
Section 219. You have to manage for it. What is it?
Mr. Tidwell. Spiritual subsistence?
Mr. Bishop. Sustenance.
Mr. Tidwell. Sustenance. It would be for us to consider
things that are important to the public, to Native communities,
to be able to factor that into our decisions.
Mr. Bishop. It is not a legal term somewhere?
Mr. Tidwell. Not that I am aware of.
Mr. Bishop. What about cultural sustenance? Is that a legal
term somewhere?
Mr. Tidwell. No, but the importance there is to be aware of
these concerns that are presented by our publics, to be able to
address those when we are making decisions.
Mr. Bishop. Chief, what Representative Lummis, and I wish
she was still here, was talking to you about is a great deal of
concern as to these definitions, which have no legal title but
for which you must manage and come up with it.
So, for example, when you were talking to Mr. Labrador it
was not quite an accurate statement. You have the authority to
manage for habitat but not for specific species, so you didn't
give him quite the exact answer that he was asking in that
particular question.
You told us on this species of conservation concern that it
would be based on scientific evidence of risk, but if you read
the document, the word science isn't there. There is no basis
for scientific--you haven't done that.
If indeed that is what the Department and the Forest
Service want it to be, you should say that specifically in the
rule. You have not said that in the rule, which is why before
you actually implement these things you need to go back and if
indeed you want some kind of scientific data the rule should
specify that. If you want some kind of spiritual sustenance,
you should actually say what that means. And you haven't done
it. The Forest Service hasn't done it, and that has not given
us any kind of predictability or feeling of comfort in where
you are going in this particular area.
I just went over, but there is another turn. So, Mr.
Grijalva, you get a chance to mellow me out.
Mr. Grijalva. Thank you. Quite frankly, I feel spiritually
and culturally isolated at this point.
[Laughter.]
Mr. Grijalva. But, Mr. Tidwell, some of the other witnesses
have been critical of the decision to use best available
science in the forest planning. Explain the provision in the
proposed rule, and is this a correct standard?
Mr. Tidwell. The provision, the intent, is that we will use
best available science. We want to use science. It has to be
relevant. It has to be available. It has to be accurate. We
have taken steps to make sure that we are now defining the best
available science and not allowing someone else to define that.
The courts' decisions have made it clear that, yes, we need
to use science and we need to document it. That is the other
key part of this is that we will be required to document that.
In the past that is where we have run into trouble is when we
have failed to document how we have used this science. That is
when we have often been challenged and we have lost.
We have taken steps to just make that very clear that this
will be the science that we need to use along with a lot of
other things to factor into our decisions.
Mr. Grijalva. And again, Chief, the proposed planning rule,
how does it improve the amount, because we have heard that from
my colleagues, the amount of local community, the stakeholder
involvement in this planning process?
Mr. Tidwell. It goes back to the----
Mr. Grijalva. That has been a criticism of the old rule.
Mr. Tidwell. Yes. The new rule will require collaboration,
much more public involvement at all parts of the rules, whether
used with the assessment through revision and then also even
with the monitoring part, to make sure that we are factoring in
what the communities, what the public want as far as this
balance, this mix of multiple use.
I cannot stress the importance of collaboration. Throughout
the country where we have models of collaboration, the
difference that you see is we are implementing work on the
ground, people are working together, and we are able to move
forward to restore our national forests.
Mr. Grijalva. And there was 300,000 comments on the draft
rule. As a consequence of those comments, you anticipate
changes in the final product?
Mr. Tidwell. Yes. Yes. There will be numerous changes, I
will say improvements, clarification and just changes based on
those comments. And many of those things have been raised by
Members today that we heard during the public comment period,
and we are taking steps to address those concerns.
Mr. Grijalva. And I am glad for the point because multiple
means multiple. We keep talking about that sort of conservation
or even cultural and spiritual sustenance. Are they going to be
part of the multi-use and increased definition to that that was
brought up by the Chairman?
Mr. Tidwell. Well, the answer is yes.
Mr. Grijalva. OK. And I think the last ones talk a little
bit about economic opportunities for surrounding communities.
Talk about the proposed rules and if it provides job growth for
those communities and what would be the opportunities for job
growth. I know it is hard to quantify.
Mr. Tidwell. Well, the proposed rule makes sure that we
consider the needs for the economic activity, to sustain the
economic activity. Where those jobs will come from is not only
the recreational activities that will continue to expand on the
national forests but also from the restoration work.
The proposed rule is very clear that we need to address the
need for restoration, to use the timber harvest, the active
timber management, to be able to do this restoration. From the
information that I have, that is one of the best job creators
for a million dollars invested creates as many or more jobs
than about anything else that we do in this country.
Mr. Grijalva. Thank you. Ms. Hinson, just for my
clarification if I may, and thank you for your testimony.
Ms. Soulen-Hinson. Yes, sir.
Mr. Grijalva. The 60 percent loss for your operation and
the 23 percent loss overall, that is tied to the existing rule
or to the proposed rule? Where does that percentage----
Ms. Soulen-Hinson. It is tied to the existing rule with the
viability regulation, but the new rule expands the viability
regulation as far as I can see.
Mr. Grijalva. Well, the testimony was that it narrowed it,
so we are not getting valid truth from the person that said it
was narrowing it.
Ms. Soulen-Hinson. Right. I think Chief Tidwell and I
probably have a little disagreement on how it narrows it.
I find it difficult to see how viability is narrowed when
you expand it from vertebrate species to all species:
invertebrates, mosses, plants, on and on and on, funguses. That
does not narrow the species that can be considered for
viability.
Mr. Grijalva. And I know environmentalists think it is too
narrow. I yield back.
Mr. Bishop. Too narrow? Representative Tipton, do you have
other questions?
Mr. Tipton. Thank you, Mr. Chairman. And if I may take just
a couple of minutes? Chief Tidwell, for the State of Colorado
water is our lifeblood, as I know you recognize. It seems to me
that the proposed rule that you have put forward is in direct
conflict with Colorado water law, congressional intent and
private property rights.
Just a few moments ago when you were answering one of my
questions you said that you wanted to be able to see the
resources tied to the land, that there had never been an
example to where private ownership of water had been sold off
for another use.
Can you demonstrate for me in the proposed rule the
guarantee for a ranching community that that water is going to
be used for grazing, that that water is going to be used to
make snow in the hills for our hospitality industry?
Mr. Tidwell. The planning rule provides components to make
sure that we address those multiple use activities to be able
to provide that balance of mixes. When it comes to dealing with
water rights, the planning rule doesn't specifically get into
the issue of water rights. Those are dealt with through our
terms and conditions of permits that authorize the use of land.
Mr. Tipton. Authorizes the use but does not guarantee the
use, so that gives the Forest Service, as we are going through
the variety of other concerns that have been expressed here,
the Forest Service could make a determination that that water
could be used for something other than snow-making or other
than grazing, is that correct?
Mr. Tidwell. Well, with snow-making, it is my understanding
the clause is specific that if that water is used for snow-
making that it is going to continue to be tied to that use.
Mr. Tipton. And that is in the clause?
Mr. Tidwell. It is my understanding that it is.
Mr. Tipton. Can we get that from your office?
Mr. Tidwell. Yes, sir.
Mr. Tipton. I would like to have a followup on that to be
able to see that guarantee.
Also, it is my understanding that this rule is just now
being applied to Region 2. Is that correct?
Mr. Tidwell. No. The interim clause would apply to all ski
areas.
Mr. Tipton. To all ski areas across the country?
Mr. Tidwell. Across the country.
Mr. Tipton. How about the grazing end of it, water use for
grazing?
Mr. Tidwell. This clause that we are referring to is for
ski area permits only.
Mr. Tipton. Just for the ski area permits only. OK. Mr.
Chairman, thank you.
Mr. Bishop. Mr. McClintock, do you have other questions?
Mr. McClintock. I do. Thank you. Let me first dovetail onto
Mr. Tipton's line of questioning of Chief Tidwell. He is
concerned about the Forest Service preempting of local or state
water laws.
In California, we seem to have the opposite problem. We
seem to have a situation where the Forest Service has been
surrendering management authority of national forest lands to
the State of California, specifically to the State Water
Resources Control Board, despite the fact the state has no
official jurisdiction.
We have a situation with the Red Ink Maid Mine, a
longstanding mining operation who attempted to renew its
permits and for the first time the Forest Service says no,
first you have to go to the State Water Resources Control
Board, which is extremely restrictive and has no jurisdiction
in the forest.
Are we seeing a pattern of the Forest Service simply
playing both sides of the field wherever it can find an excuse
to expel operations? Is that why we have this inconsistency in
approach?
Mr. Tidwell. Our approach is to work with state agencies,
coordinate, share information so that they are able to complete
their process.
Mr. McClintock. This isn't coordinating. This is deferring
to them despite the fact that they have no jurisdiction in the
matter.
Mr. Tidwell. Well, I am not familiar that we are deferring.
In fact, we are not deferring a decision, but we will work with
them to provide the information so they can carry out their----
Mr. McClintock. As I understand it, the Forest Service
denied a reauthorization of the permit for the Red Ink Maid
Mine until it gets permission from the State Water Resources
Control Board, despite the fact that this is an operation that
has been going on for many years.
Mr. Tidwell. Well, permits need to comply not only with
Federal law, but they also need to comply with state law. That
is my understanding. We are not in a position. We can authorize
an activity, but if it is in violation of a state law, they
still need to comply with the state law.
Mr. McClintock. The management agency agreement between the
United States Forest Service and State Water Resources Control
Board in 1981 I believe provided the Forest Service was the
management agency for all activities on National Forest Service
lands.
Mr. Tidwell. Yes.
Mr. McClintock. All right.
Mr. Tidwell. But if an activity also has----
Mr. McClintock. So you are doing it both ways then
depending upon how--let me ask the forest users because this is
the crux of the matter.
Are we watching with the current administration of the
Forest Service an abandonment, indeed a repudiation, of Gifford
Pinchot's vision of managing the forests to achieve the
greatest good for the greatest number in the long run, his
words? Are we watching an effort to expel the public from the
public's lands?
Does anyone want to jump in on that among the forest users?
Mr. Mumm perhaps?
Ms. Soulen-Hinson. We are certainly being expelled.
Mr. McClintock. Mr. Mumm?
Mr. Mumm. Well, I have to be very careful in how I approach
this, but I guess in terms of, for example, the Travel
Management Rule when you are looking at a reduction in ability
or opportunity to go recreate on forests, on many forests that
is 50 to 80 percent reduction at the end of a process, then
yes, I think we are suffering from that.
Mr. McClintock. One of the claims they have made is it is
for budget reasons, but then we find that counties are saying
fine, we will step in and provide maintenance ourselves because
these are vital to our county road systems and they are being
forbidden by the National Forest Service.
This seems to evince a pattern that dates back to medieval
times when the king set aside one-third of the entire land area
of Southern England as the king's forest. They expelled the
public, and the forest became the exclusive preserve of the
king as foresters and the favored aristocrats.
It seems to me that we are slowly inching back toward those
bad old days that the Magna Carta redressed with no less than
five clauses it was so irritating to the public then. Again,
are we watching this trend unfold?
Mr. Mumm. There is a point in the new proposed rule, and I
have heard to the contrary to that today. This rule emphasizes
preservation over multiple use. There cannot be a doubt over
that. Right from the outset it defines a binding requirement
for ecological sustainability and only the requirement that the
forest plans contribute to social and economic sustainability.
What you are talking about are communities that grew up
before the Forest Service was ever there dependent on the
resources that they are adjacent to. When ecological trumps the
social and those economic values, you have gone beyond the
mandates that Congress set for them.
Mr. Bishop. Thank you. Mr. Broun, do you have other
questions for this panel?
Dr. Broun. I do, Mr. Chairman.
Chief Tidwell, you talked about the science of species. We
have seen over and over again here with the Endangered Species
Act and other Federal law that science is not sometimes true
science.
I am on the Science, Space and Technology Committee, and we
have had hearings about various rulemaking and the science or
lack thereof by EPA and other Federal agencies. We saw recently
where Secretary Kempthorne signed into law a listing of the
polar bear. He utilized a prospect of human-induced global
warming and loss of habitat when actually polar bears are
expanding all over their range except for in just one or two
possible population centers, where in actuality the polar bear
is not endangered.
We have seen in my state as well as other states that I
have been associated with where actually the Endangered Species
Act harms the proper conservation of species, and in fact out
West prior to the wolf being delisted I know in a lot of
communities the management tool by the local population was
described as a 3S management program: shoot, shovel and shut
up.
I know in my own state where we have pileated woodpeckers
where forest owners will not allow the management from a
scientific basis because it could close their whole development
of their forestry resources that they depend on their
livelihood for those resources. So science is not clear-cut.
I am a medical doctor. When I went to medical school I was
taught things to be absolutely true scientifically, and five
years later we were being taught exactly the opposite. I say
all these things to bring out the idea for you to utilize
because I am very concerned and I have no comfort, frankly, in
your proposed rulemaking, particularly as a hunter, as a
fisherman and as an Arctic conservationist that your proposed
rule is going to actually be good for the species.
And then when you are expanding the purview of species
management and you are talking about science being utilized in
trying to make those management decisions, I think you are
opening a can of worms that is going to be actually just like
Mr. Mumm said. It is going to be a protectionist policy that we
are going to go forward.
I think we are going to see more and more lawsuits being
generated because of this proposed rule. I think we are going
to see these new definitions that have no legal backbone or
definition to them of spiritual or cultural considerations. I
hope you will go back to the drawing board.
I mentioned in my first question about hunting only being
mentioned one time, and I think the way you are heading is
hunters, fishermen, true conservationists are going to be, as
well as other multi-users such as the sheepherders and
cattlemen, et cetera, are going to be restricted from their own
property that they own as taxpayers and as American citizens.
I am extremely concerned about where you are going with
this proposed rule. My time is about to run out and so I am
just going to ask you to go back to the drawing board. And
another thing I would like to ask you is, how are you going to
utilize science? What science are you going to utilize in
trying to do this management?
Mr. Tidwell. We are going to use the available science that
is relevant and that is accurate. As part of the----
Dr. Broun. But what is that?
Mr. Tidwell. As part of the information----
Dr. Broun. Let me interrupt you because my time is up.
Secretary Chu came to our Science Committee and said there is a
scientific consensus that there is such a thing as human-
induced global warming when there are over a thousand
scientists that say that is balderdash. What science are you
going to use?
You don't have an answer to that. You are going to utilize
something that may be just picked out of the air, and I don't
think you or this Administration or even future
Administrations, whether Republican or Democrat, can have that
utilized as a purpose. I think you need to make some
definitions. I am out of time. I will yield back.
Mr. Bishop. The Chair takes that as a rhetorical question
because of the red light.
Mr. Amodei, do you have other questions for this panel?
Mr. Amodei. Yes, I do, Mr. Chairman. Thank you.
Mr. Bishop. Please.
Mr. Amodei. Chief, do you know if there are county road
plans in any of the counties that you are presently working on
in the Humboldt-Toiyabe for your travel management plan?
Mr. Tidwell. You know, I am not specifically aware of
those, but I assume many counties have not only road plans, but
they have their county road system. We factor that into our
decisions.
Mr. Amodei. So you should factor that into your decisions?
Mr. Tidwell. Yes.
Mr. Amodei. Are you aware of any instances in the Humboldt-
Toiyabe where counties have been gone to as part of this
process by your personnel and asked for assistance in road
maintenance issues?
Mr. Tidwell. I am not aware of that, but it is a common
practice when we work with counties to enter into agreements
where we can work with the counties to help us maintain these
roads for the public.
Mr. Amodei. OK. Thank you. Are you aware of any timber
harvest activities in the Humboldt-Toiyabe that have been
factored into or should be factored into the travel management
plan?
Mr. Tidwell. Our need to be able to restore forested
ecosystems through timber harvest and provide that access of
course needs to be factored into our travel planning.
Mr. Amodei. I understand that, and I am not trying to be
glib, but the Humboldt-Toiyabe, at least in the counties that
we have discussed specifically, I would be surprised to learn
of timber harvest activity.
So, when you talk about that in your plan and road
maintenance and all those things that are factored in, I would
assume that if there are no timber harvest activities and there
haven't been any historically that that would be a fairly
minimal consideration in terms of figuring out what that
network ought to be on the forest.
Mr. Tidwell. On a lot of that forest, but over on the
Sierra portion of the Toiyabe I would assume that needs to be
considered.
Mr. Amodei. I absolutely would agree with you, but my
question is in the context of Eureka, Nye and Elko for purposes
of the record, so I just wanted to give an opportunity to
respond to that.
I would commend to you the Elko County Commission
chairman's testimony, which is available and I understand you
won't be here for it, but I will end with saying this. He is
going to talk about 104 instances of contacts with your
personnel on travel management issues for Elko County in
generating that plan and having absolutely no impact on the
plan, and the EIS has been signed, and they are living in fear
of the record of decision being signed with all of this stuff.
And I am not questioning your integrity. I believe
everything you said, but when you talk about collaboration and
you talk about the need to coordinate with counties and you
talk about the economic impact, I commend to you his testimony
because I will commend to you that there is a problem with the
Humboldt-Toiyabe plan and there are multiple counties whose
jurisdiction overlaps with the Humboldt-Toiyabe in Nevada, and
in fact he is going to testify about Utah too, that have some
very serious concerns because they feel like--and by the way,
there are Indian tribes in the testimony--none, and I don't use
that word very often, but his testimony is going to reflect
none of that has been incorporated in the plan.
And so my final question for you on this issue is, is there
a process to delay the record of decision or reopen the public
input process for the travel management plan in the Humboldt-
Toiyabe context?
Mr. Tidwell. It is my understanding that plan has had
extensive time spent to be able to reach out to the public and
get their comments.
Mr. Amodei. I don't mean to be disrespectful, but I am on
the clock. Is there a process to delay or reopen public input
for a travel management plan under your procedures? Yes or no,
please.
Mr. Tidwell. Yes.
Mr. Amodei. And would you share that process with my office
in a timely manner so I can advise the appropriate people to
avail themselves of that process?
Mr. Tidwell. Yes.
Mr. Amodei. Thank you very much. Last thing. I am going to
read something for you that has to do with water rights. Some
of my colleagues have alluded to that, and I appreciate your
testimony regarding being required to follow the law, comity to
state statutes and all this. This is out of the regional office
in Ogden, and this is going to be in Mr. Dahl's testimony. It
is there for your perusal.
``The United States cannot obtain livestock water rights
via Federal law and that compliance with state law process is
mandatory. However, Director at the time Forsgren's letter
continued with the statement that dismayed ranchers. The
Intermountain Region will not invest in livestock water
improvements, nor will the agency authorize water improvements
to be constructed or reconstructed with private funds where the
water right is held solely by a livestock owner.''
I want to know if that is still the policy of the regional
folks out of that region, and if you have had that staffed by
counsel for condemnation purposes since it is illegal under
Nevada law to own water rights just for livestock purposes when
you are the Federal Government.
Mr. Tidwell. You know, I am not familiar with the direction
that the regional forester has put out, but based on what you
just shared with me it would be my understanding that for us to
be able to continue livestock grazing we have to have water. If
you take the water away, it is no longer able for us to
continue to graze livestock.
So the purpose that if we are going to invest in
improvements to be able to maintain grazing, it seems like
there has to be a connection with the water to ensure that we
are going to be able to continue to graze livestock.
Mr. Amodei. And I will wrap up. I don't disagree, but I
would suggest that that should be a condition of your permit
and not that you achieve ownership of the actual--and I will
defer to Mr. Mumm, but that is something that is a bird of an
entirely different feather as opposed to taking ownership of a
proprietary right.
Thank you very much. I appreciate your candor. Thank you,
Mr. Chairman.
Mr. Bishop. Ms. Lummis, do you have more questions for this
panel?
Mrs. Lummis. I do not, Mr. Chairman, but I wish to
associate myself with your remarks earlier. I was listening in
the anteroom when you were visiting, and I do associate myself
with your remarks.
I would also like to point out that under NEPA, when
counties are consulted, the word that is used in NEPA is they
are to ``cooperate'' with the counties. The Federal agencies
are to cooperate with the counties. Not collaborate. Not
coordinate. Cooperate.
And what we are seeing is Federal agencies seeing that as
that the counties should cooperate with the Federal Government
when NEPA actually requires that the Federal Government
cooperate with the counties. I yield back. Thank you.
Mr. Bishop. Thank you. Let me hopefully conclude this with
just a couple more questions.
Dr. Stewart, you haven't had a chance to talk to anybody
here yet, so can I simply ask you, do you think that the
original planning regulations that were developed under NFMA
with respect to viability were outside statutory authority?
Dr. Stewart. Yes, I do.
Mr. Bishop. Well, then can I follow up? How did that affect
planning for the agency during your time there?
Dr. Stewart. Well, it impacted everything. Just to give you
a good example, I was regional forester in California when the
northern spotted owl was listed. We had a similar viability
plan for the California spotted owl, and when it was ruled that
the northern owl plan would not assure viable populations we
immediately started in a process that resulted in reduction of
timber harvest and a lot of other activities in the Sierra
Nevadas in order to assure as best we could the long-term
viability of the California spotted owl.
And the idea was this was not a listed species, but because
it was using the same strategy, it was clear to me at the time
that we were going to end up in the same place and so we
precluded that and we were able to continue activities. We were
never shut down, and I think to this day we have never been
totally shut down, but it certainly curtailed activities.
And I might add the process that was started in 1992 to
come up with a viable long-term plan has never been fully
implemented. It is still in litigation, so it has become what
is called a wicked problem.
Mr. Bishop. Thank you. Mr. Mumm, if I could ask you one
question then. When the organized motorized recreation
community originally supported the 2005 travel management rule
was there any indication given that it would be used to
implement the landscape level closure of roads?
Mr. Mumm. It was our understanding that the intent behind
the rule was to begin management for recreation that was much
needed. It was not intended to be a closure rule.
Mr. Bishop. Then I realize I am asking you to project
something here, which is somewhat unfair, but how do you think
this proposed planning rule may impact recreation access for
your members, in 20 words or less?
Mr. Mumm. Let me give you an example on the Black Hills
National Forest. Users brought to the Forest Service plans and
maps for over 200 miles of single track trails. This is just
one type of user. They ended up with 23 miles of trails. That
is about an hour's worth of riding. I think that that is
indicative of what we are looking at.
Mr. Bishop. Thank you. Let me conclude here unless are
there other questions, another round?
[No response.]
Mr. Bishop. All right. Let me try and conclude this panel
by thanking you for spending two hours plus with us here. That
is an unusual length of time for a panel, but I think one of
the things that is indicative is I am surprised at the number
of Members who are here and the amount of questions that came
up there.
Chief Tidwell, in all sincerity, you did a great deal of
good when you were back in the real world where I live before
you came here to what I consider not the real world, and what
you say you wish to accomplish and what you are doing I think
are wonderful words. The problem that we have is that what your
goals are, which seem to be extremely rational and progressive,
is not indicative of the verbiage that is in this proposed
rule.
This rule is so broadly written with so many new terms that
have no definition anywhere else that it presents all the
potential for litigation that those who are in this industry
fear. It presents all the rules for abuse by bureaucracies in
the future, looking at how to implement this rule, some things
like the word science not being in what you think should be a
scientific rule.
I truly wish the Forest Service would go back and tighten
down the rules so it says indeed what you intend it to say
because it doesn't right now, and there is not a great deal of
trust, as you have heard from other Members here, with
experiences we have had in the past looking forward until there
is something that is more specific and tightened and, once
again, talks with greater emphasis on the multiple use aspect
vis-a-vis preservation. It doesn't happen in this rule. There
are problems with this rule.
I hope you don't go forward with this until those problems
have been remedied in a significant, significant way. And based
on what you have done in the past, especially when you were in
my state, I know you can do that. I trust your instincts. I
trust your goals there.
I don't know if you ever read the book Green Underwear by a
former----
Mr. Tidwell. I have.
Mr. Bishop. Was he there when you were? Did you know the
guy?
Mr. Tidwell. Yes. He was my regional forester.
Mr. Bishop. Great guy. And what that talked about is an era
when most of the people in the Forest Service had agriculture
backgrounds and they used a whole lot of common sense. We
desperately need that again today.
Thank you for being here with this panel. At this time,
after putting you through this laborious process of having to
listen to all of us, I apologize for that, but thank you for
being here. Thank you for your testimony. Everything that you
have written and other things that you indicated you would like
to be as part of that written testimony will be given to us.
There may be further questions from Members of the
Committee that may be addressed to you. We would ask if you
would respond to those in an appropriate period of time if
indeed that happens. But with that, thank you and with our
appreciation for you being here.
We ain't done here yet. We have another panel still to come
forward. If I could ask the following people to join us again
at the table where the seats are warm? Mr. Demar Dahl, who is
the Chairman of the Elko County Board of Commissioners; Glen
Porzak, who is from the National Ski Areas Association; Dr.
Mike Dombeck, who is the former Chief of the U.S. Department of
Agriculture's Forest Service; and Mr. Garrett VeneKlasen, who I
hope I pronounced that properly, who is the Public Lands
Coordinator for the New Mexico Trout Unlimited.
If you would be kind enough to join us at the table? As you
are getting situated there, I think you saw the process that we
have tried to go along with. Your written testimony, as with
the first panel, is in the record. Anything you also want to
add in writing to that we can add as well.
We are asking for oral testimony to be limited to five
minutes as well as the five-minute questioning rule that will
be here. Once again, when the light goes on in front of you,
green means we are timing you, yellow means you need to sum up,
and red means the five minutes have elapsed at that time.
We are happy to be here. Commissioner Dahl from Elko, I
just hope you realized it was 60 degrees overnight here. I am
sure that equates to what you experience in Elko, and I would
like to ask your representative if he would be kind enough to
introduce his constituent here, although I have to remind you
in Utah it is Eureka.
Mr. Amodei. Thank you, Mr. Chairman. I have been to Eureka,
Utah, and also have a very fond spot in my heart for Eureka,
Nevada.
Mr. Chairman and Ranking Member Grijalva, I appreciate the
opportunity to introduce Mr. Demar Dahl today. Mr. Dahl is
chairman of the Elko County Commission and has been the lead
negotiator in county dealings with the Forest Service on the
travel management plan for the Humboldt-Toiyabe National Forest
for the past two years. He conducted a number of hearings,
taking testimony from expert witnesses with Forest Service
involvement and participated in many meetings, both
facilitative and otherwise, with the Forest Service.
Additionally, he has also worked on legislation that
prevents agencies from using someone else's property to prove
beneficial use when filing for water. That effort was upheld by
the state Supreme Court, and you will hear testimony regarding
that as you have some questions prior. In his prior experience,
Mr. Dahl is a charter member of the Federal Land Conference,
president of Nevada Cattlemen's Association and member of
Nevada's State Environmental Commission.
I am pleased to introduce Mr. Demar Dahl to the
Subcommittee and happy he was willing to lend his expertise and
proposed planning rule, special use permits perspectives to the
Committee here today. Thank you, Mr. Chairman and Mr. Ranking
Member.
Mr. Bishop. Thank you. Mr. Dahl, you are recognized for
five minutes.
STATEMENT OF DEMAR DAHL, CHAIRMAN,
ELKO COUNTY BOARD OF COMMISSIONERS
Mr. Dahl. Thank you, Congressman. Mr. Chairman, Members of
the Committee, as has been stated, I am Demar Dahl. I am the
Chairman of the Elko County Board of Commissioners.
Listening to testimony here today from Chief Tidwell, it
would make me think that the travel management plan of the
Forest Service was designed to guarantee access to the forest
by the public and to make sure that there are roads for
everyone to use. That has not been our experience in Nevada.
It is difficult in a short period of time to convey to you
the importance of the Forest Service travel management plan to
the citizens of Elko County. Let me begin by saying that Elko
County commissioned an economic impact study by the Western
Economic Analysis Center wherein it was determined the
potential direct and indirect economic losses to minerals,
recreation and ranching in Elko County will be as much as $132
million a year because of travel management.
Our Commission was told by the Forest Service in January of
2009 that they were going to implement the travel management
plan. They told us then that they did not anticipate closing
any roads. We found out within a couple of weeks that what they
were going to do is create a system of roads, and inside of
that system all of the roads would be open. Outside of the
system the roads would all be closed. This equated to about
1,000 miles of roads that were going to be closed in Elko
County.
Between January of 2009 and last May, we have documented
104 times that we have either met with state and local forest
personnel, held formal hearings, submitted Freedom of
Information Act requests, held county planning sessions and
public meetings with 700 in attendance at one of those meetings
and submitted specific concerns and questions to the Forest for
answers. In other words, we have done our best to try to get to
the bottom of what this plan really means to us and to get our
land use plan in Elko County considered, and we have had no
luck.
We have made it clear to the Forest Service that if they
can justify road closures or the curtailment of other
activities by the public with good monitoring and with good
science we will support them, and thus far they have only in a
very few cases been able to do that.
All other counties in Nevada have had travel management
done to them. Now the other counties in Nevada want to join
with us and reopen their own plans. We have been joined by the
Indian tribes in northeastern Nevada and approached by two
counties in Utah who have heard what we are doing and want a
redo on their plans.
Eureka County wrote to us and said that they had many
roads, Forest Service roads, that the Forest Service would not
include in their system, and they included a sentence that
says, ``You may find it interesting that none of the comments
by Eureka County resulted in any changes to the proposed
decision.'' Now they didn't work at that as hard as we did. I
mean, we have been working at it. We have been doing this since
January of 2009. But they worked at it, and they weren't able
to have an impact.
Nye County wrote to us and said that their plan was
substandard in many ways, but most profoundly in the lack of
nearly 3,000 commonly used roads that were not added to the
system.
With our travel management plan, only roads that are open
will be marked open. Those that are closed will not be marked.
This makes it easy for someone to get on a closed road and be
subject to a citation. Camping will only be allowed two car
lengths from an approved road. Big game retrieval for deer is
not allowed. All roads leaving or crossing private land will be
closed unless there is an easement granted. Roads will
disappear without use, and it will make it difficult to get to
a fire when it is easy to contain before it threatens life and
property.
There are many other reasons that we in Elko County oppose
the Forest travel management plan. If there is an opportunity
for a field hearing of this Subcommittee to be held in Elko,
Nevada, it will be greatly appreciated by the citizens there.
We have seen a slow but constant erosion of our rights to
utilize the natural resources of our county as a result of the
actions by the Federal agencies.
We are now asking you to help us protect our economy and
way of life for our benefit and for the benefit of generations
to come. Thank you.
[The prepared statement of Mr. Dahl follows:]
Statement of The Honorable Demar Dahl, Chair, Elko County Board of
Commissioners, Elko, Nevada, and National Cattlemen's Beef Association
Honorable Chairman Bishop, Ranking Member Grijalva, and Members of
the Subcommittee:
My name is Demar Dahl, and I am submitting these comments for the
record on behalf of the Elko County Board of Commissioners regarding
the Travel Management Plan and on behalf of the National Cattlemen's
Beef Association on the matter of water rights.
Travel Management Plan
On behalf of the Elko County Board of Commissioners, of which I am
the Chair, I would first like to relate to you our experiences in
dealing with the United States Forest Service in the development of the
Travel Management Plan (TMP) for Elko County. The Forest Service made
their first presentation to the Elko County Commission to explain their
TMP in January of 2009. Elko County has documented 104 incidences
between January 8, 2009 and May 5, 2011 where the county has had
meetings with state and local Forest personnel, County formal hearings,
County strategy meetings, and one public meeting with seven hundred in
attendance. We have also submitted Freedom of Information Act (FOIA)
requests and written questions to the Forest Service. In other words,
we have worked hard trying to get straight answers on their plan and
trying to get them to take our County Land Use Plan into account, but
with no success.
The final draft of the Environmental Impact Statement has been
signed by the Forest Service and they are preparing to sign the Record
of Decision (ROD). Before the ROD is signed there will be one last
meeting, set for December 7, 2011. Included in that meeting will be the
local Indian Tribes and at least three other Counties from in Nevada.
Two of the Counties included will be Eureka and Nye, which, along with
all the other Counties in Nevada that have forests within their
boundaries, have had their Travel Management Plans completed by the
Forest Service. In a letter from Eureka County asking to participate in
the joint meeting with Forest Service, they wrote, ``Eureka County was
involved in a TMP for the USFS land located within Eureka, Lander, and
Nye counties in 2009 (Austin Tonopah Ranger Districts). We have been
following the process that USFS is taking with Elko County and we have
seen a distinct, disingenuous pattern by USFS related to our experience
and what Elko County is currently going through.''
The letter continued, ``Additionally when Eureka submitted
substantive comments on the USFS Notice of Proposed Action (NOPA) that
listed specific roads that have been omitted, removed, or
misrepresented, the USFS responded to our comments with perfunctory,
disingenuous statements that made it clear that they were not going to
properly coordinate with Eureka County on inclusion of roads even if
they were justified. We found that many roads we were concerned about
were basically just omitted (i.e. not recognized at all). Many of the
responses by USFS on the omitted roads (that in reality do exist) read
`this road was not on the Forest road inventory and was not included in
the proposed action.' What this really meant was `regardless of your
comment on the real existence of and need for the road, we are plodding
ahead with our decision'. None of the 30 plus omitted roads that we
pointed out were included. Also, we documented roads that were closed
by USFS due to being considered `redundant.' We documented a few of
these roads were in existence and used in the late 1890's (through
historic plat maps) and were still in existence and used quite heavily
in 2009. The fact these roads were used and kept open by use for 120
years should have been evidence enough of the need and importance of
the road. You may find it interesting that none of the comments by
Eureka County resulted in any changes in the proposed decision.''
Such has been our experience in Elko County. In 104 encounters with
the USFS in less than three years, we have seen no change in their plan
as a result of our input.
In a letter from the Vice Chairman of Nye County we were told,
``Nye, Lander and Eureka Counties share the belief that the Austin
Ranger District Travel Management Plan is substandard in many ways, but
most profoundly in the lack of nearly 3,000 commonly used roads. I
attended the Public Scoping meetings and witnessed the vast public
input to the process only to realize the tiniest portion of the public
input was incorporated into the final plan.''
These are some of the specific objections Elko County has to the
Forest Service Travel Management Plan as now proposed:
Elko County commissioned an economic impact study by
economist Dr. George Leaming, PhD. of the Western Economic
Analysis Center. His study determined the potential direct and
indirect economic losses to minerals, recreation and ranching
in Elko County to be as much as one hundred thirty two million
dollars.
Elko County has not been able to obtain an accurate
inventory from USFS of exactly which roads and how many miles
of roads will be closed because they have a ``system'' of roads
and all roads outside the ``system'' are closed even though
they are not inventoried. There is no monitoring or good
science to justify the closures.
There will be no big game retrieval by motorized
vehicle except for elk and then only within one half mile of a
road. There will be no retrieval of deer. This is one of the
parts of the TMP also opposed by Nevada Department of Wildlife.
Roads that are marked ``open'' will be open; however,
those that are closed will not be marked ``closed.'' Elko
County believes this will make criminals of inadvertent
trespassers. When, if sited, someone wants to contest the
citation, it will be necessary for them to travel to Reno
(about 300 miles away) twice: once to plea and once to settle.
Roads crossing or off of private lands will be closed
unless the land owner is willing to grant a public easement
across the private property. It is estimated that ninety
percent of property owners will allow someone to cross their
land if asked to do so. If USFS closes these roads it will be
the Forest Service, not the landowner, who locks up the public
land. Also, there is a health and safety issue with roads off
private lands being closed. In cases of a fire, roads that have
disappeared over time without use will prove a threat to life
and property when their closure prevents early containment.
As proposed in the current TMP, dispersed camping
will, for the most part, be limited to two car lengths from an
approved road. This will make many campsites off limits, even
if they have been used for many years.
Elko County has taken every step available to it under law to
assist in the development of a TMP that is acceptable to both local
citizens and the Forest Service. We appreciate the opportunity to voice
our frustration with the roadblocks we have met, and hope that this
hearing may help to alleviate the problem by improving the spirit of
cooperation within the agency.
Water Rights
On behalf of the National Cattlemen's Beef Association (NCBA), of
which I am a member, I would also like to submit to the record comments
regarding the Forest Service's recent policy on special use permits as
they relate to rancher-owned stockwater improvements.
I am a member of NCBA, the nation's oldest and largest national
trade association for cattlemen which represents more than 140,000
cattle producers through direct membership and their state affiliates.
NCBA is producer-directed and works to preserve the heritage and
strength of the industry by providing a stable business environment for
their members. In the west, where roughly forty percent of the cow herd
spends some time on federal lands, the policies held by the Forest
Service are of great importance to NCBA.
The ranching industry is very concerned with the recent efforts by
the Forest Service to acquire ownership of water rights in return for
the continuance of permitted activities on National Forest System
lands. We have seen examples of this with the ski industry, with water
districts, and, recently, with permitted ranching activities in the
west. In Wyoming, ranchers report the Forest Service has recently
become more aggressive about acquiring ownership of stock water rights.
In Nevada, the agency has delayed action on ranchers' requests for
permits for maintenance of rancher-owned stockwater because of the
agency's disagreement with Nevada's state water law. This has resulted
in an under-utilization of the ranges by livestock due to a lack of
full distribution of water resources on Forest Service permits. While
the Forest Service generally has not formally rejected use permits,
they have delayed issuing those permits in order to pursue their policy
of obtaining stockwater rights. This delay has, in my opinion,
prevented the full use of the range by wildlife as well as livestock.
Thanks to improvements largely accomplished by ranchers'
investments of their own time and resources on Forest Service lands,
abundant wildlife habitat has sprung out of landscapes formerly lacking
a large number of water resources. Not only that, but many private
stockwater owners on National Forest System lands have memorandums of
understanding, (or MOUs) with the Forest Service, where they
voluntarily allow the agency to put a designated amount of water to use
on agency initiatives. Now, the agency's demand for partial ownership
of water rights is threatening these MOUs and the spirit of cooperation
that has long existed on the range.
The Forest Service's demand flies in the face of federalism and the
prior appropriation doctrine for water rights which exists in much of
the west. The federal government, except in narrow cases, continues to
give primacy over the waters within individual states to those states'
laws, regulations, and agencies. For the benefit of the resource, which
ranchers are striving every day to improve, and which the Forest
Service is mandated to care for, the current Forest Service policy of
delaying maintenance and establishment of stockwater resources needs to
be reevaluated and discarded.
Along with this testimony, I am submitting for the record two
official Forest Service documents outlining their water rights policy.
One is a letter from Intermountain Regional Director Harv Forsgren,
dated August 29, 2008, informing Forest Supervisors that ``It is FS
policy (FSM 2541.03 & FSM 2541.32) to obtain and maintain water rights
needed for National Forest purposes under State and Federal law in the
name of the United States.'' He recognized that ``the United States
cannot obtain livestock water rights via Federal law'' and that
``compliance with the State law process is mandatory.'' Director
Forsgren's letter continued with a statement that dismayed ranchers:
``The Intermountain Region will not invest in livestock water
improvements, nor will the agency authorize water improvements to be
constructed or reconstructed with private funds where the water right
is held solely by a livestock owner.''
The second document, an August 15, 2008 Forest Service briefing
paper on Nevada State Water Law, made the agency's stance clear: ``it
is the policy of the Intermountain Region that livestock water rights
used on national forest grazing allotments should be held in the name
of the United States. . .The United States must have a water right
recognized by the State before federal funds are expended for
construction or reconstruction of any livestock water development or
facility.''
The agency's goal, and means of achieving it, is evident. Ranchers,
unfortunately, are caught in the crosshairs.
In closing, should your subcommittee see fit to hold a field
hearing on the TMP and water permit issues in Elko, Nevada, it would be
greatly appreciated by the citizens there. We have seen a slow but
constant erosion of our rights to utilize the natural resources of our
county as a result of the actions by the federal agencies. We are now
asking you to help us protect our economy and way of life for our
benefit and for the benefit of generations yet to come.
______
Mr. Bishop. Thank you, Commissioner.
Mr. Porzak?
STATEMENT OF GLENN PORZAK,
NATIONAL SKI AREAS ASSOCIATION
Mr. Porzak. Thank you for the opportunity to testify on
behalf of the National Ski Areas Association. The Association
has 120 member ski areas that operate on National Forest System
lands. These public ski resorts accommodate the vast majority
of skier visits in the United States and are located in 13
states.
At the outset I would like to thank Chairman Bishop for
highlighting the important topic of water rights for special
use permittees and to thank Representative Tipton for his
leadership on this issue and his recent correspondence to the
Department of Agriculture.
Collectively, ski areas invest literally hundreds of
millions of dollars on water rights to support and enhance
their operations. Often these water rights are part of the
collateral that support their loans that are instrumental to
their ability to operate the ski resorts. The ski areas use
water for snow-making, lodging facilities, culinary purposes
and irrigation. Water is crucial to the ski area operations,
and water rights are considered to be a valuable asset to the
ski area owners.
The ski areas require permit language that protects these
water rights and accommodates the complex and diverse water
systems and state laws through which water is appropriated and
applied to a beneficial use. The ski industry and the
Association have worked collaboratively in partnership with the
Forest Service over the past to address the interests of both
the industry and the Forest Service on water matters.
Specifically, the parties reached a consensus water clause
in 2004 that has been in effect for the past seven years and
has operated without any problems, notwithstanding the Forest
Service now seeks to change, not clarify, despite the fact that
there have been no problems. The existing clause provides for
the exclusive ski area ownership of water rights that arise off
of the ski area permit area and the co-ownership by the ski
areas and the Forest Service of certain water rights that arise
on the special use permit area.
The Forest Service is now seeking to impose a new clause
that requires the ski areas to transfer exclusive ownership of
many types of water rights to the Federal Government. These are
valuable property rights which the Forest Service now wants for
free. Not only will the ski areas not be compensated for these
valuable water rights; they would also lose the ability to
control the future use of these water rights.
If these water rights are owned by the U.S. Government, the
ski areas would have no guarantee that the water will continue
to be used for the ski area purposes. Congressman, there is
nothing in the current clause that would restrict the Federal
Government to using the water for the ski area purposes.
Moreover, the new clause would also prohibit the ski areas
in perpetuity from selling or transferring ownership of certain
other water rights that were purchased or developed by the ski
areas entirely on private property or on non-Forest Service
Federal lands. No compensation is offered for this restriction,
and this restriction would have a significant adverse effect on
the value of these ski area assets and their financing.
Requiring the ski areas to transfer ownership or limit the
sale of the water rights without compensation is no different
than the government forcing a transfer of ownership of chair
lifts, snow cap snowmobiles or exercising eminent domain
without any compensation. The Forest Service action is simply
unprecedented.
I clarify again, this is not a clarification of the 2004
clause as Chief Tidwell mentioned. The 2004 permit runs two
clauses and is one page. The new one is nine pages.
I would also point out that all water rights owners should
be concerned about this. Because of the significant percentage
of water that originates on National Forest Service lands, this
change in policy poses a threat to the current system of state
allocation and administration of water and could impact
counties, cities, owners of private residences, marinas and
other businesses such as ranching, mining or utilities.
The bottom line is Congress has not delegated to the Forest
Service the authority to require the ski areas to transfer
ownership of water rights to the U.S. as a permit condition. We
respectfully request Congress's assistance in reversing this
new Forest Service policy. Thank you very much.
[The prepared statement of Mr. Porzak follows:]
Statement of Glenn Porzak, Attorney at Law, Porzak Browning & Bushong
LLP, on behalf of the National Ski Areas Association
Thank you for the opportunity to testify today on behalf of the
National Ski Areas Association. NSAA has 121 member ski areas that
operate on National Forest System lands under a special use permit from
the U.S. Forest Service. These public land resorts accommodate the
majority of skier visits in the U.S. and are located in the states of
Arizona, California, Colorado, Idaho, Montana, Nevada, New Hampshire,
New Mexico, Oregon, Utah, Vermont, Washington and Wyoming. Sixteen (16)
members of the Natural Resources Committee have public land ski areas
in their state. At the outset, we would like to thank Chairman Bishop
for highlighting the important topic of water rights for special use
permittees in this oversight hearing this morning. We would also like
to thank Representative Tipton from Colorado for his leadership on the
issue and recent correspondence to the Secretary of Agriculture on
behalf of ski areas.
Collectively, ski areas invest hundreds of millions of dollars on
water rights to support and enhance their operations. Ski areas use
water for snowmaking, lodging facilities, restrooms, culinary purposes
and irrigation. Water is crucial to ski area operations and ski area
water rights are considered valuable assets to ski area owners. Ski
areas require permit language that protects these rights and
accommodates the complex and diverse water systems and state laws
through which water is appropriated and applied to a beneficial use on
Forest Service lands.
The ski industry and the Association have worked collaboratively
and in partnership with the Forest Service over the past decade to
address the interests of both the industry and the Forest Service on
water matters. Specifically, the parties reached a consensus water
clause in 2004 that has been in effect for the past seven years which
the Forest Service now seeks to change, despite the fact that there
have been no problems with the existing clause. The existing clause
provides for exclusive ski area ownership of water rights that arise
off of the ski area permit area, and co-ownership by the ski areas and
Forest Service of certain water rights that arise on the special use
permit area.
From the ski areas' standpoint, the current arrangement is working
well and does not require any changes. However, the Forest Service is
now imposing a new water clause that requires the ski areas to transfer
exclusive ownership of many types of water rights to the federal
government. These are valuable private property rights which the Forest
Service now wants for free. Not only would ski areas not be compensated
for these valuable water rights, they would also lose the ability to
control the uses for which this water is applied in the future. If
these water rights are owned by the U.S. government, the ski area would
have no guarantee that the water will continue to be used for ski area
purposes in the future.
Moreover, the new water clause would also prohibit ski areas in
perpetuity from selling or transferring ownership of certain other
water rights that were purchased or developed by the ski areas entirely
on private or non federal lands. No compensation is offered for this
restriction and this restriction would have a significant adverse
effect on the value of these ski area assets. The rationale provided by
the Forest Service for making changes to the clause at this time is
that ``there is a new sheriff in town.''
Ski areas object to these new requirements. Requiring ski areas to
transfer ownership or limit the sale of water rights without
compensation is no different than the government forcing a transfer of
ownership of gondolas or chairlifts, snowcats, or snowmobiles, or even
exercising eminent domain without any compensation. It is unprecedented
to require the ski industry to surrender ownership of valuable assets
to the U.S. government without any compensation.
All water right owners, not just ski areas, should be concerned
about this precedent. Because of the significant percentage of water
that originates on National Forest System lands, this change in policy
poses a threat to the current system of state allocation and
administration of water rights. This issue is larger than just ski
areas--it would impact all entities that have water rights associated
with any National Forest System lands including cities and counties,
owners of recreation residences, marinas and summer resorts, and other
businesses such as ranching, mining, or utilities.
Water right allocation is generally a matter of state, not federal
law. State law allows private ownership of water rights for diversion
and use on federal land. Rather than unlawfully taking property from
private entities as a permit condition to use or occupy National Forest
System lands, the agency must acquire and exercise federal water rights
on its own in priority in accordance with state laws.
As I mentioned, ski areas have developed water rights at great
expense and effort. Resort owners have invested hundreds of millions of
dollars in acquiring water rights to enhance their operations and the
experience of their guests. Ski areas have been excellent stewards of
these resources and are in the best position to protect these water
rights as they have the expertise, staffing and resources necessary to
maintain them.
Congress has not delegated to the Forest Service the authority to
require the ski areas to transfer ownership of water rights to the U.S.
as a permit condition. Likewise, the Property Clause of the U.S.
Constitution does not give the agency the authority to use permitting
conditions as a basis to obtain federal ownership of privately owned
water rights without the payment of fair compensation.
Ski areas will not agree to the new water clause and respectfully
request Congress' assistance in reversing this new Forest Service
policy. The ski areas intend to ensure that private property interests
are protected and state laws regarding water rights are honored.
Thank you for your consideration of this testimony.
______
Mr. Bishop. Thank you.
Chief Dombeck?
STATEMENT OF DR. MIKE DOMBECK,
FORMER CHIEF, USDA FOREST SERVICE
Mr. Dombeck. Thank you, Mr. Chairman, Ranking Member
Grijalva. I appreciate the invitation to testify before the
Committee. I have been in this room many times over the years
but not for about the last 10 years.
I grew up on the Chequamegon National Forest in
northwestern Wisconsin, paid my way through college as a
fishing guide primarily, but also hunting, if the gentleman
from Georgia were here, and am still an avid hunter. In fact, I
just spent the last three weeks hunting and interrupted that to
come to D.C. this week.
I own land within the national forest boundary. I manage it
for recreation, wildlife, harvest timber, and I have also had
the opportunity of spending a career working for the public
land management agencies, so I have sort of stepped back now
after no longer being in a position of responsibility but in a
sense to sort of look at history as I hear the debate today,
and I think it is important for me. I always reminded myself at
least that history in a sense is sort of repeating itself, and
public land management controversies go back almost to day one.
The reason we have a Taylor Grazing Act, a National Forest
Management Act, many other pieces of legislation, really
reflected in controversies of impaired watersheds and problems
with a loss of topsoil that continue today that spurred
President Theodore Roosevelt and Gifford Pinchot and many
others to move forward with many of the policies that were made
in fact in this very body.
One of the interesting things with our society is we tend
to each want our piece of the pie, and the reality is there is
not enough. The pie isn't big enough for everybody to have all
of what they want, and hence we have these competing interests
in fact that we hear at this hearing where we have wildlife
interests, fishing interests, hunting interests, offroad
vehicle users.
And I would hope that in this dialogue as we deal with the
specifics of the issues that we sit back and ask ourselves what
do we want the place to be like in 20 years, in 50 years, and
how are we going to get there, keeping in mind that the
national forests really do provide a broad spectrum of
recreation opportunities, just like the Nation does. I mean, we
have everything from theme parks to golf courses in the
national forests, and the public lands also provide a wide
spectrum of recreation opportunities.
I suspect they will continue to do so for motorized access,
for physically impaired, to solitude, to wild places where a
young person connecting in nature can hike in and go on a
trophy elk hunt or experience some of the best fishing in the
world that occur on these public lands.
In 1999, a committee of scientists in another effort to
deal with the planning and regulation under my watch as Chief
of the Forest Service really focused on three things: the
social, economic and ecological side of the equation that keeps
us all going. In fact, our challenge is striving at that
balance. Chief Jack Ward Thomas used to talk about the land
being the goose that lays the golden eggs, and when we don't
take care of that land as we should in fact we all suffer. The
economics suffer. The social aspects of it suffer.
So, I hope that as we discuss and consider the various
regulatory approaches and the various issues that the
constituencies have that we will take into account the long
haul. What do we want the land to be like in 20 years, in 50
years, and the fact is we need to be building topsoil in the
country--today we are still losing topsoil as a nation--and
some of those basic things that are important.
So, with that, let me just say I appreciate the opportunity
to be here, and I look forward to any dialogue that we might
have that might be constructive. Thank you.
[The prepared statement of Dr. Dombeck follows:]
Statement of Dr. Mike Dombeck, Former Chief, U.S. Forest Service
Chairman Bishop, Ranking Member Grijalva, and members of the
Subcommittee:
Thank you for inviting me here to testify today. My name is Mike
Dombeck. I am an avid outdoorsman. I spend several weeks each year
recreating on public lands: hunting, fishing, camping and enjoying the
national forests across the country, but mostly in my home state of
Wisconsin. I was raised on the Chequamegon National Forest in northern
Wisconsin's lake country where I spent 11 seasons working as a fishing
guide, which paid my way through college. I have also owned land within
the national forest boundary for over forty years, which I manage for
wildlife habitat, recreation and timber harvest. I had the privilege of
spending a career in public service with the federal land management
agencies and retired as Chief of the Forest Service in 2001. I spent
the past 10 years at the University of Wisconsin-Stevens Point as UW
System Fellow and Professor of Global Conservation. I am currently
Director of the David Smith Post-Doctoral Research Fellowship in
Conservation Biology. I have been and currently am a member of several
conservation organizations. I mention all of this to make the point
that my testimony comes not from the singular perspective of an
advocacy group or agency but from someone who uses and cares deeply
about land, and has witnessed the benefits and challenges of public
land management over the past several decades.
Before I discuss some of the specific issues that are the subject
of this hearing, I would like to take a step back and consider today's
issues in a broader historical context. The Spanish philosopher Jose
Ortega y Gasset once observed: ``We have need of history in its
entirety, not to fall back into it, but to see if we can escape from
it.'' \1\ As long as our public lands have existed we have been
challenged by the need to balance uses of the land, and manage these
uses in a way that sustains the long-term health and productivity of
the land. It is a challenge that we as a society have not always met.
And when we have met this challenge, we have too often done so only
after experiencing the consequences of asking too much of the land and
taking more than it can provide.
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\1\ Jose Ortega y Gasset, The Revolt of the Masses (New York:
Norton, 1993).
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For example, the very origins of the national forests can be traced
back to the need to maintain watershed function \2\ at a time it was
becoming clear that overgrazing and unsustainable timber harvesting
impaired the ability of watersheds to catch, store and release water.
This resulted in heavy floods, unnaturally low summer flows, and
increased erosion and sedimentation. The need to protect and restore
watershed function is even greater now than ever before, as about 124
million Americans rely on national forests and grasslands as their
primary source of clean drinking water.
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\2\ ``Congress's conference committee report on the General Land
Law Revision Act of 1891 had cited the need to protect western
watersheds as the rationale for forest reserves when it had given the
president the right to establish forest reserves by proclamation.''
Richard White, It's Your Misfortune and None of My Own: A New History
of the American West (Norman: University of Oklahoma Press, 1993).
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Despite the early recognition of the need to protect watersheds,
public lands were once viewed as a vast storehouse of inexhaustible
resources. The result of this approach was environmental destruction
and, along with it, social and economic disruption. Over time, this
approach has created a need for regulations that curtail destructive
activities. Before the Taylor Grazing Act, unlimited grazing resulted
in widespread range deterioration. By the 1870s federal rangelands were
greatly overgrazed. In 1887, a severe winter, coupled with
malnutrition, killed millions of stressed livestock, bankrupting many
cattle companies that were involved in land-damaging and speculative
grazing practices. Before the National Forest Management Act,
clearcutting had become the preferred method of timber harvest,
resulting in losses in forest productivity, degraded fish and wildlife
habitats, and increased fire hazard. As a hunter and angler, I feel
compelled to also point out that fish and game regulations arose in
response to severe over-harvest that wiped out or greatly depleted many
populations of game species.
These experiences point to a lack of humility in our approach to
natural resources. Our society's desire to maximize outputs--whether it
is more livestock, more timber, or more fish and game--has consistently
led us to take more from the land than it can sustainably provide. As
our demands on national forests grow along with our population and the
advent of new technologies, the need to put in place management
prescriptions that provide for sustainability becomes increasingly
acute. What we leave on the land for future generations is ultimately
more important than what we take.
This need is evident today with the tremendous growth in
recreational use of our national forests. In 1950 there were an
estimated 27 million recreation visitor-days per year on national
forest system lands. In 2009, the national estimate was 173.5 million.
The forest road system grew from approximately 206,000 miles in 1974 to
more than 374,000 miles today.\3\ During my time as chief of the Forest
Service we were in the midst of a dramatic growth in the motorized use
of national forests. The number of off-highway vehicle (OHV) users in
the U.S. grew from approximately 5 million in 1972 to over 51 million
in 2004. More than 11 million people using OHVs visited national
forests and grasslands in 2004.
---------------------------------------------------------------------------
\3\ USDA Forest Service, The U.S. Forest Service--An Overview,
http://www.fs.fed.us/documents/USFS_An_Overview_0106MJS.pdf.
---------------------------------------------------------------------------
High numbers of visitors to national forests are a good thing. It
means people are enjoying the outdoors, which is important to a healthy
lifestyle and to developing future stewards of our natural resources.
One of the greatest social changes over the past century has been the
shift from a rural to now mostly urban lifestyle. With the help of
science and technology a greater proportions of humans than ever before
are living farther removed from the land. In my view, one of our
biggest challenges is reconnecting people with the land and nature.
That doesn't mean we all have to live in the woods or on the prairie.
But we do need a populous that understands and appreciates the land
that ultimately sustains our needs and life styles. We need to invest
in outdoor and environmental education like never before. The public
lands provide an important place for our youth to connect with the land
and nature.
A Forest Service report found that ``More than 57 percent of visits
to National Forest System lands are done primarily for physical
activity, such as hiking, biking, and skiing.'' \4\ All this activity
provides significant economic benefits. According to the same Forest
Service report, recreation activities on national forests and
grasslands have helped to sustain an estimated 223,000 jobs in rural
areas and contributed approximately $14.5 billion annually to the U.S.
economy.
---------------------------------------------------------------------------
\4\ News Release: USDA Forest Service Report Shows Economic, Health
Benefits of America's National Forests and Grasslands. Release No.
0359.10. July 7, 2010. Accessed November 9, 2011 at www.usda.gov.
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However, if it is not properly managed this level of recreational
use can have negative impacts on national forest resources. In 2004, my
successor as chief of the Forest Service, Dale Bosworth, identified
unmanaged motorized recreation as one of the top four threats to
national forests, estimating that there were more than 14,000 miles of
user-created trails, which can lead to long lasting damage.
A 2009 GAO report titled, Enhanced Planning Could Assist Agencies
in Managing Increased Use of Off-Highway Vehicles, identified a range
of potential environmental impacts associated with OHV use, including:
damage to soil, vegetation, riparian areas or
wetlands, water quality, and air quality,
wildlife habitat fragmentation, and
spread of invasive species.\5\
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\5\ U.S. Government Accountability Office. Report to the
Subcommittee on National Parks, Forests and Public Lands, Committee on
Natural Resources, House of Representatives. Federal Lands: Enhanced
Planning Could Assist Agencies in Managing Increased Use of Off-Highway
Vehicles. June 2009. GAO-09-509.
---------------------------------------------------------------------------
The report stated that
``. . .studies on the impacts of OHV use indicate that soil
damage can increase erosion and runoff, as well as decrease the
soil's ability to support vegetation. Additionally, research
has shown that habitat fragmentation from OHV use alters the
distribution of wildlife species across the landscape and
affects many behaviors such as feeding, courtship, breeding,
and migration; habitat fragmentation can also negatively affect
wildlife beyond the actual amount of surface area disturbed by
roads. In 2007, the U.S. Geological Survey reported that as a
result of OHV use, the size and abundance of native plants may
be reduced, which in turn may permit invasive or nonnative
plants to spread and dominate the plant community, thus
diminishing overall biodiversity.'' \6\
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\6\ U.S. Government Accountability Office 2009.
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I point out these impacts not to criticize OHV users--we all rely
on motorized access to some degree--but to underscore the need for
effective management in order to prevent harm to the land. When
motorized use is confined to properly maintained roads and trails,
concerns are limited. But where OHVs proceed with few restrictions, the
damage can be severe. The Forest Service's response to this management
challenge was the Travel Management Planning Rule, finalized in 2005.
The Rule instituted a management framework that would provide for
motorized access while reducing impacts and minimizing user conflicts.
The rule requires each National Forest to designate roads, trails and
areas that are open for motorized use including decisions on where OHV
use may occur. Each National Forest is required to publish a Motor
Vehicle Use Map (MVUM) indicating those decisions, and motorized use is
to be confined to those defined routes.
The Forest Service has nearly completed its Travel Management
Plans. Over the past six years, these plans have been developed with
extensive public involvement. While I am not here to defend the
specific outcomes of each plan, which were the product of public
processes and local input, it is important to recognize that Travel
Management Plans are essential to an effective management approach that
balances the various recreational uses of public lands and prevents
ecosystem degradation.
Another important component of Travel Management Planning is the
identification of the roads and trails that will make up the Forest
Service's network over the long term. Currently, the Forest Service
lacks the resources to adequately maintain its system of roads and
trails, and faces a maintenance backlog of $8.4 billion nation-wide.
Poorly maintained roads and trails reduce access and diminish sporting
opportunities, for example by contributing large amounts of sediment
into rivers and streams. Thus, it is sensible for the Forest Service to
analyze its network of roads and trails and to determine the minimum
system that can be sustained given available resources, yet still
provide access without diminishing the quality of recreational
opportunities such as hunting and fishing. Over time, the deterioration
of the road and trail network due to inadequate resources for
maintenance will present one of our major ``roadblocks'' to recreation.
In my experience, the quality of recreational experience is the
most important factor for users of the national forests, and quality
experiences are rooted in healthy, functioning ecosystems. For hunters,
this may mean intact big game habitat. For anglers, it may mean clean,
fishable streams. For OHV users, it may mean an interconnected system
of well-maintained trails. Travel Management Planning is fundamental to
achieving each of these ends.
As we look at the spectrum of outdoor recreation opportunities
across the nation--from golf courses and theme parks to remote
wilderness and solitude--the national forests and public lands provide
a wide variety of recreation opportunities on this spectrum. For
example, where else do the citizen owners of the national forests have
free access to remote wild places to experience the land as our
forefathers and Native Americans did? It is also important that we
provide citizen owners with a broad spectrum of opportunities to access
these lands, from motorized access for the physically impaired to
remote wild places that provide solitude and some of the best trophy
hunting and fishing in the world. The Forest Service recognized both
the importance of recreation and the need to manage recreation in the
context of multiple uses to achieve sustainability in developing its
proposed planning rule.
The proposed rule defined sustainable recreation as ``The set of
recreational opportunities, uses and access that, individually and
combined, are ecologically, economically, and socially sustainable,
allowing the responsible official to offer recreation opportunities now
and into the future.'' \7\ The proposed rule would require plans to
include components to provide for sustainable recreation, and more
consistent monitoring of recreational use trends.
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\7\ U.S. Department of Agriculture, Forest Service, 36 CFR Part
219, National Forest System Land Management Planning: Notice of
proposed rulemaking; request for comment, February 14, 2011.
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Included in the proposed rule's statement of purpose is to manage
the National Forest System to ``sustain the multiple uses, including
ecosystem services, of its renewable resources in perpetuity while
maintaining the long-term health and productivity of the land.'' This
is essential. If the land is not healthy and productive, it cannot
sustain multiple uses, including recreation, or the ecosystem services
upon which we all rely. Furthermore, healthy watersheds are fundamental
to the long-term productivity of the land. The planning rule should, in
keeping with the origins of the national forest system and the mandates
of the Forest Service Organic Act \8\ and National Forest Management
Act,\9\ explicitly place water and watershed protection as the highest
management priority of our national forests and grasslands.
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\8\ 16 U.S.C. Sec. 551
\9\ 16 U.S.C. Sec. 1604(g)
---------------------------------------------------------------------------
Developing and implementing an effective planning rule has proven
difficult over the decades since the passage of the National Forest
Management Act. One of the issues I struggled with as Forest Service
Chief is the disconnect between forest plans and the budget and
appropriations process. After scores of public meetings, extensive data
collection and rigorous analysis, and heightened public expectations,
plans are not consistently implemented because of this disconnect. I
urge public policy makers and the Forest Service to find a way to
connect forest plans with the appropriations process so that plan
components, including the recreational components we are discussing
today, more consistently translate into action on the land.
Former Forest Service employee and eminent wildlife ecologist Aldo
Leopold once defined the ``oldest task in human history'' as ``to live
on a piece of land without spoiling it.'' To fulfill Leopold's vision
we must all strive to become better stewards of our natural heritage.
Stewardship of public lands means managing with an eye to the future,
asking ourselves, ``What will we want from this land in fifty years?''
Unfortunately, short-term political cycles and pressure from interest
groups who want a bigger piece of the pie resist this type of thinking.
As we consider the regulatory approaches put in place by the Forest
Service today, let us do so with an eye toward the future conditions
that we desire for our public lands.
This concludes my statement. I would be happy to answer your
questions.
______
Mr. Bishop. Thank you.
Mr. VeneKlasen? Did I even come close to that?
Mr. VeneKlasen. It is VeneKlasen. Thank you.
Mr. Bishop. I wasn't even in the ballpark. Anyway, thank
you for being here. You are recognized for five minutes.
STATEMENT OF GARRETT VENEKLASEN, PUBLIC LANDS COORDINATOR, NEW
MEXICO TROUT UNLIMITED
Mr. VeneKlasen. Thank you, Chairman Bishop, Ranking Member
Grijalva and Members of the Subcommittee. Thank you for the
opportunity to speak today. My name is Garrett VeneKlasen, and
I work for Trout Unlimited in our Sportsmen Ride Right effort.
I grew up fishing and hunting on public lands across the
West. Moreover, my livelihood has always been made in the
outdoor field. Today I will share with you my experience as a
sportsman and off-highway vehicle user on public lands in New
Mexico. My past has taught me the value of managing recreation
to provide for the long-term health of the land.
Seventeen years ago I purchased my first ATV. My backyard
was the 1.5 million acre Carson National Forest. The public
lands hunting and fishing opportunities were world class. We
had tremendous herds of trophy elk and mule deer, and the
populations of turkey grouse and bear were off the charts. Back
then not many folks owned ATVs in northern New Mexico, and
there were few, if any, rules governing the use of OHVs on
national forests. Almost daily I would head into the forest on
my ATV with chainsaw, GPS and topo map in tow.
Aside from more than 3,000 miles of designated motorized
trails I could use, Carson was riddled with abandoned logging
roads. If a designated road wouldn't take me where I needed to
go, I would simply reopen an abandoned logging road or even
head cross country to get to my favorite hunting or fishing
spot. In a matter of years, I created hundreds of miles of my
own user-created routes.
Because I was one of a handful of motorized users, my
overall impact on the land was relatively insignificant, but as
each year passed the number of motorized users in my country
grew exponentially. Since 2003, OHV sales have tripled in the
United States. Suddenly it wasn't just me and a handful of
folks in the woods anymore.
Collectively, our habitat fragmenting motorized activity
quickly began to degrade riparian areas, disrupt normal
wildlife activity and outrage and ultimately displace the
nonmotorized recreationists that come to the Carson looking for
an atavistic outdoor experience.
For a time I denied the fact that increasing offroad use
was having a negative effect on the quality of my outdoor
experience. With each passing season, though, the trophy
quality and quantity of elk, mule deer and other game species
declined dramatically. These animals do not tolerate motorized
activity. They equate engine noise with predation and quickly
vacate lands frequented by vehicle traffic. In a matter of
years, we, the OHV community, literally drove animals off
public lands and into the adjacent private lands. In the end,
we literally loved our country to death.
In the fall of 2009, I attended my first U.S. Forest
Service sponsored travel management meeting. At the time, I
still viewed travel management from an access restricting
standpoint instead of from its intended purpose, responsible
resource protection. But in the room were many sportsmen like
myself, folks who loved to ride but also equally cherished the
nonmotorized quiet side of outdoor recreation.
We talked among ourselves and decided that we, the OHV
based sportsmen's community, needed to do something to protect
our local resources from overuse. We eagerly began to work with
the land management agencies on travel management in our area.
We used a common-sense tread lightly approach to balance
adequate access with corresponding ample nonmotorized refuge
country. This is truly the essence of the travel management
concept.
When the travel management process finalizes in the Carson
this winter the U.S. Forest Service will still retain more than
3,000 miles of designated roads and trails for motorized use.
The OHV based sportsmen's community even went a step further to
support the designation of several nonmotorized habitat
protection areas within the Camino Real. These relatively
small, contiguous tracts of nonmotorized country ensure that
local wildlife populations will always have easily accessible
refuge land adjacent to our designated routes.
As a result of these efforts, wildlife once again
flourishes, and the Camino Real is now one of the most sought
after hunting units in the entire state. The revenue generated
by hunting and other nonmotorized recreation related activities
in the communities surrounding the Camino Real is estimated to
be $13.4 million annually and helps create and maintain more
than 170 local jobs.
We have been able to achieve sustainable recreation
management in my area because of our willingness to come
together and work constructively as a diverse community of
users. Now we are expanding these collaborative efforts through
a coalition of businesses and rod and gun clubs called
Sportsmen Ride Right. Our coalition believes that motorized
access is a necessity, but one that must be balanced along with
habitat protection to ensure the long-term health of our
hunting and fishing heritage.
In summary, the increase in population use rates of our
public lands indicate that we, the current stewards and
trustees of our public lands, desperately need to implement a
long-range travel management plan now more than ever. Kindly
recognize that the offroad community is a broad-based,
divergent group of users and not just the purely recreational
riders that are allowed, but minority, stakeholder within the
overall OHV picture.
In states like New Mexico, the silent majority of the OHV
community are sportsmen like myself who embrace a balanced,
common-sense approach to motorized access and resource
protection. Thank you for your time.
[The prepared statement of Mr. VeneKlasen follows:]
Statement of Garrett O. VeneKlasen,
New Mexico Public Lands Coordinator, Trout Unlimited
Chairman Bishop, Ranking Member Grijalva, and members of the
subcommittee,
Thank you for the invitation to testify. My name is Garrett
VeneKlasen; I am the New Mexico field coordinator for Trout Unlimited..
Today I will share with you my experiences as a sportsman and ATV
user on public lands in New Mexico. My experiences have taught me the
importance of balancing access with habitat protection in order to
sustain healthy populations of fish and game, and quality recreational
opportunities. I believe that some of the things we're doing in New
Mexico show that if we work together, we can achieve that balance.
I was born and raised in New Mexico and spent my childhood and
formative adolescent years hunting and fishing with my father
throughout the public lands of New Mexico, Colorado and Arizona. Today,
as a father, I am able to pass down our priceless outdoor heritage to
my daughter because like many New Mexicans, we have a deep passion for
wild places and hunting and fishing. Since I was old enough to drive a
car and start a fishing guiding business at sixteen, my entire working
career has centered on hunting, fishing and recreating on public lands.
I've been a fishing and hunting guide, an outfitter, an outdoor writer/
photographer, an outdoor travel consultant, and an outdoor television
producer. All these jobs center on viable public lands resources.
Seventeen years ago, I purchased my first ATV. At the time, I was
newly married and living in Angel Fire, New Mexico. Angel Fire is the
gateway to amazing USFS, state and BLM public lands. My ``back yard''
was the 1.5 million acre Carson National Forest. The public lands
backcountry hunting and fishing back then was world class. We had
tremendous herds of trophy elk and mule deer. Populations of turkey,
grouse and bear were off the charts. Needless to say, as a hunter,
angler and OHV enthusiast, I was in heaven.
Back then not many folks owned ATVs in Northern New Mexico. If
there were any rules regulating the use of these machines on public
lands, they sure weren't publicized and definitely not enforced. Almost
daily, I would take off from my house on my ATV with a full tank of
gas, a chainsaw, a GPS and a topo map and head into the forest. Aside
from more than 3,000 miles of designated motorized trails I could use,
the Carson is riddled with abandoned logging roads. If a designated
road wouldn't take me where I needed to go, I would simply re-open an
abandoned logging road or even head cross-country to get to my favorite
hunting or fishing spot. In a matter of years I created literally
hundreds of miles of my own user-created routes. There wasn't a spot on
the map I couldn't reach on my ATV.
Because I was one of only a handful of motorized users, the overall
impact on the land was relatively insignificant. For a time, the
quality of my off-bike hunting, fishing and related backcountry
experiences remained true and unaffected.
But as each year passed, the number of OHV users in my country grew
at an exponential rate. Since 2003, OHV sales have tripled in the
United States.\1\ The amount of OHV activity has increased dramatically
throughout the Carson National Forest. The Camino Real district of the
Carson was especially hard hit due to its proximity to Taos and the
fast growing resort communities of Valle Escondido and Angel Fire. Soon
it wasn't just a handful of folks traversing the countryside in OHVs.
It became an army of unfettered users like me that collectively
fragmented watersheds, disrupted wildlife and outraged and ultimately
displaced the non-motorized users coming to the backcountry.
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\1\ Off-Highway Vehicle Recreation in the United States and its
Regions and States: An update National Report from the National Survey
on Recreation and the Environment (NSRE): 8. Available at http://
www.fs.fed.us/recreation/programs/ohv/IrisRec1rpt.pdf.
---------------------------------------------------------------------------
For a time I denied the fact that increasing off-road use was
having a negative impact on the quality of my backcountry fishing and
especially hunting. With each passing season though, the quality and
quantity of elk, mule deer, turkey, bear and grouse declined
dramatically. These animals equate engine noise with predation and
quickly vacate lands frequented by vehicle traffic. In a matter of
years we--the OHV community--literally drove the animals off public
lands and onto adjacent private lands. During hunting season, it became
a race to drive into the last remaining remote and un-fragmented
backcountries, which were the only isolated islands that held the last
residual unmolested game populations.
My favorite fishing spots were impacted also. Folks riding through
our river bottoms left deep scars in the soft riparian soil and created
mud bogs in fragile riparian areas. Some of our small creeks were even
becoming scoured and channelized by frequent OHV use through their
courses.
We loved our country to death.
In the fall of 2009, I attended my first Travel Management meeting
held by the U.S. Forest Service (USFS) in Taos, New Mexico. At the
time, I viewed Travel Management from an access-restricting standpoint
instead of its intended purpose--responsible resource protection. I was
extremely skeptical of the federal government regulating my off-road
activity. I bought in to the rhetoric stating that the ``Feds'' had no
right to tell an upstanding, tax-paying citizen like myself where I
could or could not ride. I hated the idea of having to possibly close
many of the user-created routes that I and my buddies exhaustively
created and maintained for almost a decade.
But in the room were many recreationists like myself. Folks who
loved to ride, but also equally cherished the non-motorized, regressive
side of outdoor recreation. We talked among ourselves and decided that
we, the OHV-based sportsmen's community, needed to do something to
protect our resources from overuse.
And so we collectively and willingly worked with the land
management agencies on Travel Management in our area. We used common
sense approaches to balance adequate access with corresponding, ample
non-motorized refuge country. This is the essence of the Travel
Management concept. In the end, the USFS ended up closing some roads
and trails, but retained more than 3,000 miles of roads and trails for
motorized use. This scenario is typical across the West. There is a
misconception floating around out there that Travel Management has
severely restricted access across the West and this is simply not true.
I believe that the Travel Management process helps build balance
for all users of our treasured national forests. I also believe, as a
rider, that I could literally wear the wheels right off of my vehicle
just driving the roads and trails on my local national forest alone. In
fact, of the 3,400 miles of roads and trails on the Carson, more than
3,000 of those miles are open to motorized vehicles. That's a pretty
good deal for the motorized user like myself.
We, the sportsmen-based OHV community in northern New Mexico, did
not stop with supporting the Travel Management process. We collectively
wanted to ensure that there would remain quality, easily accessible
non-motorized refuge land to hunt in adjacent to our designated
motorized routes.\2\
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\2\ A brief video about this work can be found at http://
tightlinemedia.com/production-services/video-samples.html.
---------------------------------------------------------------------------
In 1973, the New Mexico Habitat Improvement Act (HIA) was
implemented to protect wildlife populations and crucial wildlife
habitat from unrestricted motorized vehicle travel throughout New
Mexico's national forests. The idea behind the act was to create
relatively small non-motorized Habitat Protection Areas (HPAs) for
wildlife. These areas do not restrict motorized use by federal or state
agencies and allow for special use permitting for activities such as
logging.
The HPAs helped wildlife to flourish.. It is a well-documented fact
that game and non-game species alike rely heavily on large, contiguous,
protected, non-motorized tracts of country for food, cover and breeding
habitat. In the 1980's local populations of elk, deer, turkey, bear,
grouse and other game and non-game species exploded after HIA went into
effect. In a very short period, the Camino Real District of the Carson
became one of the most sought-after hunting units in the entire state.
This was the game-rich country I first encountered when I moved to
Angel Fire, New Mexico in 1994.
With the help of the local New Mexico Game & Fish Department and
U.S. Forest Service personnel, we collectively identified previously-
closed non-motorized HPAs within the Camino Real District of the Carson
and re-closed (to motorized use) two separate HPAs in the Carson.
Collectively, these two HPAs protect approximately 33,000 acres
(remember the Carson consists of 1.5 million acres) of prime wildlife
habitat. Please keep in mind that the implementation of these closures
was instigated by the sportsmen-based OHV community, not the non-
motorized community.
Again, it is important to note that this country was originally
closed and protected under the previously-mentioned HIA, but was
eventually opened back up via user-created routes. Many of these routes
were created by yours truly.
After three years of closure, these two HPAs once again boast some
of the finest public-land big game hunting opportunities (from both a
trophy quality and quantity standpoint) in the entire state if not the
entire West. Hunters, hikers, horseback enthusiasts, naturalists and
mountain bikers flock to the area because of the easily accessed
pristine and wild backcountry country. The revenue generated by hunting
and other non-motorized recreation related activities in the
communities surrounding the Camino Real is estimated to be $13.4
million annually, and helps create more than 170 local jobs.
Our experiences in New Mexico have played out in similar ways
throughout the West. Sportsmen who use public lands rely on an intact
and meaningful system of roads and trails to hunt and fish. We have a
significant stake in the upkeep of those roads and trails, but we also
need areas where we can leave the machine behind and find not just the
solitude and peace that lives in wild country, but also the high
quality fish and wildlife habitat that produces meat for the table and
fodder for the soul.
The term ``access'' is a tricky one for sportsmen. Were motorized
access the number one issue for sportsmen, downtown Washington D.C. or
New York City would be hotspots for hunting and fishing. Sportsmen
understand that access is not simply the ability to drive your vehicle
uninhibited across the landscape. For sportsmen, access is about
quality and opportunity. Just as urban centers loaded with roads and
cars don't make quality habitat for fish and wildlife, neither do
national forests overrun by unmanaged motorized recreation make good
places to fish and hunt.
When the conversation turns to motorized access, non-motorized
users and motorized recreationists are often split into disparate
groups. For hunters and anglers, the truth is different. Nearly every
sportsman who visits public lands does so in a motorized vehicle. It
may be an ATV, a truck, a jeep or another four-wheel-drive vehicle, but
most of us travel across Forest Service or BLM roads to reach the edges
of our hunting and fishing areas.
Sportsmen also know that as you venture farther from the motors,
the fish get bigger, the bucks get better and the elk get more
numerous. In my state, one of the most sought-after elk tags in the
West can take years to draw. Unit 16a in the Gila National Forest draws
hunters from around the country and around the world to pursue trophy
elk. The Gila National Forest spans 3.3 million acres, four counties
and five hunting units. Once the Gila National Forest finishes it
Travel Management Plan, it will have more than 3,600 miles of motorized
roads and trails for use by the public and the most desirable and
hardest-to-draw tag will remain the one that allows sportsmen to hunt
the Gila Wilderness Area, away from motorized roads and trails.
There is broad recognition in the sportsmen's community that sound
management and responsible use of public lands are necessary to
sustaining quality recreational opportunities. Sportsmen are part of a
broad-based, divergent off-road community which encompasses much more
than the purely recreational riders that are a loud, but minority,
stakeholder within the overall OHV picture. The silent majority of the
OHV community are recreationists like me who embrace a balanced,
common-sense approach to motorized access and resource protection
within our public lands. To give voice to this majority we have started
a coalition of businesses and rod and guns clubs called Sportsmen Ride
Right. Our coalition believes that motorized access is a necessity, but
one that must be balanced along with habitat protection to ensure the
long-term health of our hunting and fishing heritage.
Sportsmen Ride Right is firmly in support of Travel Management
Planning. It only makes sense that we would put thought into the
impacts of motorized use on fish and wildlife on public lands. For
sportsmen, travel management is no different than game laws that
include season and bags limits.
Because so many sportsmen use OHVs to hunt and fish on public
lands, we have the most to gain by doing it ``right.'' To this end,
Sportsmen Ride Right advocates responsible OHV use and, more
importantly, a secure a strong sporting heritage for future
generations.
As we consider the decisions made through Travel Management
Planning, it is important that we keep in mind the size and extent of
the road and trail network on public lands.
Nearly 90 percent of all lands managed by the U.S.
Forest Service are within 2 miles of a road and 78 percent of
all national forest lands are within one mile of a road. 62
percent of all national forest roadless areas are less than one
mile's distance from a road. Only a little over 11 percent of
all national forest roadless areas are two miles or more from a
road.
In New Mexico's Carson National Forest there are over
3,000 miles of designated motorized roads and trails.
Once travel management is complete on the Gila
National Forest, there will be about 3,600 mile of motorized
roads and trails on the forest. That's more miles of roads than
there are residents in Catron County, where much of the Gila
National Forest lies.
In Idaho, which contains more roadless acres than any
other state besides Alaska, 61 percent of all U.S. Forest
Service managed land is within 1 mile of a road and 94 percent
of Idaho lands designated as ``general forest'' by USFS are
within 1 mile of a road.
Besides damaging valuable fish and wildlife habitat and limiting
hunting and fishing opportunity, an excessive and redundant road system
is an unneeded burden on American taxpayers. The Forest Service lacks
the financial resources to maintain its system of roads and trails and
faces a maintenance backlog of $8.4 billion.
With so much at stake, it only makes sense for the Forest Service
to analyze its network of roads and trails at the district level and to
determine the minimum system that can be sustained given available
resources, yet still provide access without diminishing the quality of
recreational opportunities such as hunting and fishing.
Hunting and fishing generate $76.7 billion in economic activity in
the United States annually. But the number of people who engage in
hunting and fishing has been dropping steadily for a generation.
Today's youth are more likely to shoot ducks or catch a trout in a
video game than they are for real in the outdoors. Our national forests
provide critical opportunities to hunt and fish, and these
opportunities cost a whole lot less than on private lands. However,
these opportunities are available because we still have significant
areas of land and water on our national forests that are relatively
undeveloped. Areas with low road densities frequently have high aquatic
and terrestrial habitat values. Conversely, hunting and fishing
opportunities in backcountry areas can be compromised by high road
densities and frequent motorized traffic. So if we are to keep our
hunting and fishing traditions going, there has to be a good balance
between motorized access and walk-in areas.
A look at how motorized access impact elk illustrates this point.
Elk are one of the most popular game animals in the U.S. and their
reaction to motorized roads and trails has been studied extensively. A
1983 study (Lyon) of the impact of road density on elk populations
reported that ``habitat effectiveness'' could be expected to decline by
at least 25 percent with a density of 1 mile of road per square mile
and by at least 50 percent with two miles of road per square mile. This
study further reported that as road densities increased to five to six
miles of roads per square mile, elk use declined to less than 25
percent of potential.
Other studies have shown that closing roads benefits elk. Irwin and
Peek (1979) found that road closures allowed elk to stay in preferred
habitat longer while elk in roaded areas were displaced. Leptich and
Zager (1991) found that closing roads extended the age structure and
doubled the bulls per cow sex ratio. Gratson et al. (2000) measured elk
hunter success in relation to road density and found that hunter
success almost doubled when open road density was reduced from 2.54 km/
km2 to 0.56 km/km2.
Just this month in California, a special state task force found
that poorly built roads were doing more harm to salmon in Battle Creek
than clear cutting.\3\ Battle Creek, a tributary to the Sacramento
River and an important spawning ground for salmon, highlights the need
for planning and carefully thought out road systems.
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\3\ Matt Weiser, ``Battle Creek at risk from roads,'' Sacramento
Bee, November 09, 2011.
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Sportsmen, like other public land users, may disagree on specific
road closures or openings. We do not, however, disagree about the need
for sound management of our fish and wildlife resources. Travel
Management Planning is part of sound wildlife management, and most
sportsmen fully support the concept and need for designated routes.
Hunters and anglers have a long history of paying our own way and
taking responsibility for our actions and for those of our peers. We
will continue to work for balance and to protect the wildlife heritage
that we owe to our children. We ask that Congress also seek a balance
that will protect our irreplaceable public lands. Congress should not
only protect the Travel Management process, but vocally support a
proven policy that can save our lands and save tax dollars.
In summary, the increase in population and use rates of our public
lands indicates that we--the current stewards and trustees of our
public lands--desperately need to implement a long range Travel
Management Plan now more than ever.
The key to the success of Travel Management is transitioning from
the individualized, me, mine, here and now access-restriction mindset
to a broader, ours, theirs, and tomorrow resource protection
perspective. Ultimately this issue isn't just about us. It's about
giving my unborn grandchildren (God willing) something of real value.
It's about giving them the same quality public lands backcountry
experience and opportunity that helped define and refine the man who
now sits before you.
The wild world is one of the last truly authentic things that we
can give to subsequent generations. In the backcountry, away from the
modern trappings of the civilized world and all our gadgets and
machinery there is only one truth to be found. It is a place where all
beings are governed by a set of perfect laws that have never changed
and never will. If a balanced approached to preserving and protecting
this one irreplaceable commodity isn't worth protecting, I don't know
what else is.
Thank you again for the opportunity to testify. Your careful and
thoughtful consideration is greatly appreciated.
______
Mr. Bishop. Thank you. You ended that right on the spot
too.
We will start with questions for the panel. Mr. Tipton, I
am betting that you have some questions, and I can guess where
they are going to go.
Mr. Tipton. Well, thank you, Mr. Chairman. You know, it
just dawned on me that Utah and I think Wyoming even has
marginal skiing.
Mr. Bishop. Oh. Appreciate it. Your time has expired. We
are now going to go--where is the gavel?
Mr. Tipton. I do appreciate it, Mr. Chairman, and I thank
the panel also for taking the time to be here.
Mr. Porzak, I would like to be able to do some followup.
How is the Forest Service's new use and occupancy permit water
clause inconsistent with Federal deference to state law and
water issues in the West? I believe the Chief even spoke to
Colorado water rights.
Mr. Porzak. Yes, sir. I believe the consensus is that this
is an end run around state water law because it is trying to
gain Federal control over water rights that it could not obtain
under its Federal reserve rights through the state water
courts, and it is doing it as a permit term and condition.
Mr. Tipton. OK. We were looking at your business, and I
think you underscored a very important point during your
comments saying that all water owners should be concerned. You
know, in the 3rd Congressional District and in fact throughout
the State of Colorado, water is what we absolutely need,
particularly for the grazing end of it, but in your industry
does that become part of collateral, an ability to be able to
expand?
Mr. Porzak. It absolutely does. You know, the water rights
are a major source of collateral for the ski area loans that
support their infrastructure, that support their improvements
and their general operations. No lender is going to loan any
money unless you can prove you have adequate water rights.
And when they would look at this clause they would see
that, number one, the ski areas are divested of their ownership
of the water right and that there is no guarantee that the
water will continue to be used for the ski area purposes, so
this will have a major impact on the ability to obtain your
financing.
Mr. Tipton. So that it is very clear, people paid money for
these water rights, didn't they?
Mr. Porzak. Collectively, literally hundreds of millions of
dollars.
Mr. Tipton. Hundreds of millions.
Mr. Porzak. That is a very conservative number. I mean,
some resorts have spent a number of millions of dollars just
for one resort, and many of these arise off the permit area and
are used to augment the use of water on the permit area.
Mr. Tipton. And under the proposed rule, the compensation
for those hundreds of millions of dollars that were spent for
water rights would be?
Mr. Porzak. Zero.
Mr. Tipton. Zero?
Mr. Porzak. Zero.
Mr. Tipton. So it is effectively a taking and infringing on
Colorado water rights, Colorado water law----
Mr. Porzak. No question.
Mr. Tipton.--by the property rights?
Mr. Porzak. No question in my mind.
Mr. Tipton. Great. What effect will this clause have on
permit holders who received their permits after the 2004 clause
was adopted, which did not require the relinquishment of these
water rights?
Mr. Porzak. Right. Basically what it will do is force them
to go back to water right clauses that existed prior to 2004.
Basically you could have a new ski area owner who obtained the
water right under the 2004 clause, thought those were the rules
that were in effect, is going to be held to certain standards
that existed many years before that--it could be decades before
that--that they had no knowledge of and were not a party to.
Mr. Tipton. So, basically the rules are just becoming a
moving target. We are creating more uncertainty. Is this
impacting jobs?
Mr. Porzak. Very definitely. When you impact the financing
you are impacting jobs. You are also impacting the balance
sheet that the ski resort owners use to be able to obtain their
financing. If you take away literally tens of millions of
dollars from their balance sheet, that will in fact impact
their ability to obtain loans and they will have to cut back on
the amount of money they get and so that is going to mean loss
of jobs because certain jobs are going to have to be cut.
Mr. Tipton. I would like to go back. You mentioned this
just briefly in testimony. It was a question that I directed to
the Chief in terms of having that comfort level that the water
will be used for that directed beneficial use, be it ski
industry or grazing. You don't feel it is there?
Mr. Porzak. No, I don't. There is language. It is not a
requirement, but it says that the water should primarily
continue to be used for ski area operations without defining
what those operations would be, but the operative word is
primarily. You know, what does that mean? You can divest them
of 49 percent of their water, which could have a major impact
on ski area operations? Not just the snow-making. I mean, that
is the one everybody thinks about. But it is all the
residential and domestic uses associated with a ski resort.
Mr. Tipton. OK. Thank you, Mr. Chairman. I did neglect. I
think even Nevada has one ski run. No? OK.
Mr. Bishop. Thank you. Thank you, Mr. Tipton. When the
government stops Colorado from making snow, maybe we can work
out a plan to get the greatest snow on earth shipped over to
you in some way and you can continue going.
Mr. Grijalva?
Mr. Grijalva. Thank you, Mr. Chairman. Chief Dombeck, I
have to ask you, in your written testimony you say, ``If access
means motorized access without limits, then Times Square should
be a great hunting ground.'' Could you elaborate on that,
please?
Mr. Dombeck. Well, I am not sure I said it quite that way,
but the assumption that I heard earlier at this hearing is that
access assumes motorized access.
The fact is that the national forests are in most of the
landscape--I would say 99 percent of the land is accessible and
open. The question is do we want every acre, every single
situation, open by all means of access that are available to us
today that we may not have had 30, 40 or 50 years ago, so that
is I think the important consideration. How many roads, how
many trails do we really need?
What about the person that likes the solitude? I hear a lot
from Forest Service retirees or I used to when I was in the hot
seat and got all the questions like Chief Tidwell did, and in
fact I am glad I am not in that hot seat today at this hearing,
but they will talk about solitude. It seems to me there needs
to be a little bit of dialogue on that to balance out the
equation.
Mr. Grijalva. Yes. Let us talk a little bit about balance
if I may, Chief. The criticism today, and it will go on, with
the proposed rule appears to be that it favors preservation and
conservation over other use. Is it possible that what is really
going on is that that use has been favored, the other use, over
conservation for too long and the agency is seeking some
balance to the mandate, to the multi-use mandate?
Mr. Dombeck. Well, you know, I don't mean to get dramatic,
but it was President Theodore Roosevelt that used the term that
we have skimmed the land, and in fact much of the forested
landscape where I live, for example, in the Midwest, the
national forests are in better shape today than they were
decades ago because they have recovered and continue to
recover.
And when we look at that, I hope we look at some of the
basics like the formation of topsoil, water quality, aquifer
recharge, all of those kinds of things that are equally
important because if we don't take care of that over the long
haul we will end up with significant problems.
There is a wonderful paper that was written in 1953 by then
the Associate Director of the Soil Conservation Service where
President Franklin Roosevelt had him travel around the country
or the world during the Dust Bowl era to determine what caused
the collapse or the degrading of countries, civilizations. And
interestingly enough, his conclusion was it was soil and water
or at least lack of stewardship of soil and water.
And that is not to say that the balance is very important
and I am not implying that human livelihoods are not important,
but oftentimes it seems to me we ought to err in favor of the
land. I think that is what most land stewards do. I think most
ranchers want to do that. I certainly do as a landowner if
there is a question.
Mr. Grijalva. Thank you. Thank you. Mr. VeneKlasen? I hope
I said it right. A quick question. Do you believe that a well
thought out travel management process can improve hunting and
fishing opportunities while maintaining the access for OHV and
ATV users? It has been brought up as a conflict by a previous
witness, but I think there is a brewing conflict between
hunting and fishing and the demand by motorized vehicle users
that we open up everything.
Mr. VeneKlasen. You know, I think the Camino Real district
of the Carson National Forest is a perfect example of how we
have balanced access and resource protection. When we had
excessive motorized use and unfettered motorized use, the
quality of hunting degraded markedly.
I was there before we had a lot of offroad use. I was there
during the process and actually one of the users causing the
problem, and then afterward we created these habitat protection
areas that were 10,000 acres that are nonmotorized, but they
are surrounded by lots of good motorized trails.
The hunting opportunities in those areas are unbelievable.
We just finished a 12-minute video, which I would be happy to
send you, that illustrates that very clearly. The quality,
trophy quality, has increased incredibly in two years, and the
quality and numbers of animals has increased exponentially
also, and so I think that that is a perfect example of how that
works.
Mr. Grijalva. Thank you. Thank you, Mr. Chairman.
Mr. Bishop. The gentleman from Nevada. Do you have
questions for this panel?
Mr. Amodei. Thank you, Mr. Chairman. Dr. Dombeck, do you
have any opinions on the policies regarding water rights that
you have heard here today in terms of making the actual
transfer of those a predicate to authorizing use, either
recreational or livestock, based on your experience?
Mr. Dombeck. Actually I would prefer to leave the details.
I know how complex water law is, and it is different in every
state and I certainly don't understand the details of it, but I
would hope we arrive at some sort of balance and the concept of
keeping water on the land for all the uses I think is very
important to keep the streams and the aquifers connected with
the needs of the plants, animals, fish and people that are on
that land.
Mr. Amodei. Well, do you have an opinion regarding who
needs to own that water for that objective to happen?
Mr. Dombeck. I would say in many cases the landowner and in
some cases the water rights on the public properties as well,
but primarily the landowner.
Mr. Amodei. Thank you. Mr. Dahl, do you have anything to
add regarding the water rights issues that have been discussed
by those states that wish they had skiing facilities as nice as
those around the Lake Tahoe Basin?
Mr. Dahl. Well, I heard Chief Tidwell say this morning that
we can't furnish grazing unless we furnish the water, but that
doesn't mean that the Federal Government needs to own the
water.
In Nevada, we have a law that says that the agencies cannot
use someone else's property, livestock in that instance, to
prove beneficial use on the water. And in Nevada, and I think
this is the case in a lot of the western states, the BLM is
adhering to our state law.
Forest Service is trying to do an end run on it. They are
holding up a lot of permits. If you want to go out and repair a
water system or put in a new one and you need a permit to do
that, then they want their share of the water, half of the
water, in order to do it.
What it does, it is a given in Nevada that the wildlife is
able to use any water that is developed, and so by them holding
up water developments they are hurting wildlife for one thing.
And a rancher who puts a water development in with his own
resources wants the security of owning the water because if
half that water belongs to the Forest Service, then if they
move him out, they have water. They can give that water that he
developed to somebody else.
Mr. Amodei. And I think a distinction that is important
here, is it your understanding that this policy applies--I am
not asking for Federal funding for water improvements on the
range. This is being used as a predicate to allowing you to
expend your own funds in support of your existing grazing
rights on the forest?
Mr. Dahl. Right. If you would want to go out and spend your
own funds to develop the water yourself, you are held up from
being able to do that, to better be able to manage the forest
and be able to utilize the feed, the forage and so on and make
more water available for everybody, for the wildlife along with
your own livestock.
Mr. Amodei. Are you aware of any instances in your
experience of the Forest Service owning cattle or sheep or
anything else that they are grazing in their own name on----
Mr. Dahl. No. No. They do have camps and they keep a couple
horses there sometimes and they do have water rights for that,
and that is OK, but our law says you can't use somebody else's
property to prove beneficial use, and that is necessary in
order to acquire the water right.
Mr. Amodei. And if I can briefly, can you visit the issue
of--back to the travel management plan--if you own a private
right-of-way in the forest, what is your understanding of the
present proposed travel management plan for the Humboldt-
Toiyabe in terms of that being part of the travel management
plan?
Mr. Dahl. Well, we have a unique situation, and maybe not
to other areas, but the Ruby Mountains, for instance, have a
lot of ranches around them. This is private property. And a lot
of people use the mountain by going to the rancher that owns
the property and saying can I go across your property. We
figure about 90 percent of the ranchers allow people to go
across.
Now the idea that the Forest Service is doing at least in
our travel management plan is to close all roads that go off of
private land and so then it is the Forest Service. It is not
the property owner that is locking up the forest because the
property owner in 90 percent of the cases will let somebody go
if they are able to tell them close the gate, watch out, it is
too muddy today, you will mess up the road or whatever.
Mr. Amodei. Thank you. Thank you, Mr. Chairman.
Mr. Bishop. Thank you. Ms. Lummis, do you have questions
for this panel?
Mrs. Lummis. Thank you, Mr. Chairman. I do have one, and I
appreciate your indulging my attendance today.
Could any of you answer why does the Forest Service want to
take these water rights away from the private owners?
Mr. Dahl. That is a good question. I don't have an answer
to it.
Mr. Porzak. Control.
Mr. Dahl. Yes. Control. I would concur with that.
Mrs. Lummis. Mr. Dombeck, do you agree? You have been in
these shoes before.
Mr. Dahl. Pardon? Oh, I am sorry.
Mr. Dombeck. Obviously I am not familiar with the current
situation and the issues, but what I can assure you from one
that grew up 25 miles from a town of 1,500 in a very rural
area, although it was big woods and not the prairie or the
Great Basin, that the Forest Service and BLM employees that I
worked with are really dedicated to the resource and doing the
right thing. Now keep in mind multiple use management is a
tough mandate.
Mrs. Lummis. I hear you.
Mr. Dombeck. It is very difficult.
Mrs. Lummis. But why? I mean, do you----
Mr. Dombeck. I don't see it as a willful thing, someone
wanting to take something away from somebody else. I see it as
the desire of the agency wanting to do what they feel is the
right thing for the land.
Mrs. Lummis. OK. So it may be a control issue. Mr. Dahl, do
you think it is about control?
Mr. Dahl. Yes, I think it is a control issue. You know how
important water is in Wyoming.
Mrs. Lummis. Yes.
Mr. Dahl. It is the same in Nevada, maybe more important in
Nevada.
Mrs. Lummis. Yes.
Mr. Dahl. And it definitely would be a control issue
because you have to have the water to go with your permit if
you are running livestock.
Mrs. Lummis. Yes. Now, if you had, for example, a tank that
caves in, it erodes and you want to go in and repair it, a
water tank, you need a permit to do that?
Mr. Dahl. In most instances.
Mrs. Lummis. And it is not automatically renewed?
Mr. Dahl. That is right. That is right. It is not an
automatic thing.
Mrs. Lummis. In spite of the fact that wildlife utilizes
these water resources as well?
Mr. Dahl. Yes. Well, in Nevada, the law provides that
wildlife are able to use any water rights that are developed on
public land.
Mrs. Lummis. Mr. Chairman, I do appreciate your indulgence
of my questions. I came today because of this water issue
specifically. The other issues are alarming as well, but
nothing as much as the Federal Government taking water rights
away from people who own them now. To me, that is unacceptable,
and I just wish to register my complete disapproval of that
portion of the rules that are being discussed. Thank you, and I
yield back.
Mr. Bishop. Thank you. Mr. Porzak, maybe I can ask you the
question that was asked of Chief Tidwell a little bit earlier.
I am sure you are aware of the task force back in 1996. From
your perspective, are the proposed new water clause consistent
with what the task force concluded back then?
Mr. Porzak. I am very familiar with that task force report,
and it is totally inconsistent. That did not just address the
issue of bypass flows as was indicated. In fact, the 2004
clause expressly prohibited the use of the water rights being
used for bypass flows. That prohibition is gone from the new
clause.
Mr. Bishop. Well, welcome to the world of regulatory
takings.
Mr. Porzak. Yes, sir.
Mr. Bishop. Commissioner, if I could ask you a couple
questions about the road situation that you all have.
In the written testimony, you stated that Elko County
commissioned an economic analysis of the travel management
plan. The impact was up to $132 million to the county. Did you
get any response from the Forest Service to the result of your
analysis?
Mr. Dahl. No, we haven't.
Mr. Bishop. Nothing at all?
Mr. Dahl. Nothing.
Mr. Bishop. Are any of these roads 2477 roads?
Mr. Dahl. Yes, many of them are. You know, something that
we are----
Mr. Bishop. I am talking about the roads scheduled to be
vaporized and closed. Are they 2477 roads?
Mr. Dahl. Some of those are. Some of them. Probably not the
majority of them. The majority of the roads that are closed and
the majority of the roads, and I am anxious to go back and see
if we can get some kind of a figure on the number of miles of
roads that are maintained because most of the roads out there
are only maintained by use.
Mr. Bishop. I am interested, though, in those 2477 roads
that were among that list. Was there any suggestion by the
Forest Service they would relook or react differently to those
particular roads?
Mr. Dahl. Well, the only thing we can do is see what has
happened to counties where the plan is already in place.
In Eureka County, they have roads that have been used that
on their historical plat maps they can verify that those roads
have been used for 120 years and they have been closed. They
have asked for them to be opened, and they haven't opened them.
Mr. Bishop. I understand the concern you all have out
there, and I think it is a legitimate one. Someone gave me the
book, I can't remember the title, about the big burn up in
Montana and Idaho that destroyed towns and killed people.
I think one of the things that was not actually written
specifically at the conclusion of that book but was very clear
is one of the problems that the Forest Service in its infancy
at that time had in fighting those is they didn't have access.
There were very few roads that were in that forest area, and
they were prohibited from going into the areas where they
needed to. Had they done so, the situation could potentially
have been significantly different. Access is a significant
issue on public lands for the public as well as for those who
have private property or private concerns in which they need
that particular access, so that is one of the concerns.
Chief Dombeck, if I could just ask you one question here.
You talked about how our goals have to be 50 years or 20 to 50
years in advance. Do you think that the legislature that
enacted the Multiple Use Sustainment Act or ASA or the NEPA Act
conceptually 20 or 50 years ago envisioned the national forests
that we have today with the significant fire depredation and
the bark beetle issues and the other kills and the overgrowth?
Do you think that was actually what they were envisioning when
they passed those laws?
Mr. Dombeck. Well, I can only speculate, but over the
decades we have made both good and bad policy decisions based
upon the current thinking of the day, so I am assuming that was
the thinking at the time.
Mr. Bishop. Were you the Chief that gave us the roadless
rule?
Mr. Dombeck. Yes, I was.
Mr. Bishop. Shame on you. Do you also know Robert Nelson
from the University of Maryland?
Mr. Dombeck. Yes, I do.
Mr. Bishop. He has written some great books about the
history of those departments, just slightly different than some
of the things that we have been hearing in recent developments.
Let me ask one last question of Commissioner Dahl. This is
an unfair question to you I admit, but you are somebody who has
to administer rules and regulations as well as state law. We
were talking about the new policy that was written. The old
rule told the Forest Service that they shall be administered
for outdoor recreation, range timber, watershed and wildlife
and fish purposes.
The new proposed rule tells them that a range of social,
economic and ecological benefits for the present and into the
future, including clean water habitat for fish, wildlife and
plant communities and opportunities for recreation, spiritual,
educational and cultural sustenance need to be maintained.
As an administrator, that new language that is being
proposed, would that give you any kind of pause on how you
would be able to administer that kind of language?
Mr. Dombeck. That would. My first consideration would be
for the economic welfare of my county and for the opportunity
of the citizens that live in the county to utilize the forest
in the ways that they have in the past.
Mr. Bishop. OK. Thank you, Commissioner. You actually gave
a better answer to my hypothetical question than I was
anticipating. I appreciate that.
Are there other questions for this panel? Mr. Tipton?
Mr. Tipton. I do have just one more, Mr. Chairman.
Mr. Porzak, could you maybe give us a little bit of
insight? I would be interested, going back to Powderhorn or the
powder company that is trying to develop a ski resort. How many
jobs are potentially at risk since they have the potential now
maybe to not be able to have the collateral?
Mr. Porzak. The Powderhorn Ski Area is near Grand Junction,
and it has not been open and not operated successfully for a
number of years. A number of people have come in with both the
expertise to manage a ski area and also the financial resources
to really do improvements.
The Forest Service when they issued this new directive last
week basically gave the Powderhorn Ski Area no alternative but
to agree to the new permit language. They asked that there be a
reservation of rights so that if the language is subsequently
changed through congressional action, court action or by mutual
agreement that the new language would follow, and the Forest
Service refused.
Mr. Tipton. Just a clarification. So, we are enforcing a
rule that has not been approved?
Mr. Porzak. That is correct. They are absolutely enforcing
that upon the Powderhorn Ski Area. You know, it is snowing now
and they want to open fairly soon, and so this would be the
totality of the ski resort, so it would be every job associated
with that ski area.
Mr. Tipton. That is very interesting. I appreciate you
bringing that to light.
Just one more followup. It was my general understanding
that out of the 2004 rule and part of this review process it
was to be able to create a little clarification. I am gathering
from you, is it your assumption that this proposed rule is now
far exceeding what anybody was able to visualize and has some
negative impacts?
Mr. Porzak. Absolutely. There is very little relationship
between the 2004 clause and the proposed new clause that the
Forest Service has issued.
I mean, just look at the original 2004 clause, which I had
a hand in working out with the Forest Service. It was literally
two clauses. It was less than one page. The new directive is
nine pages.
Mr. Tipton. I appreciate that. Mr. Chairman, we I hope
share the same view. I find this very disturbing that we have a
proposed rule that is in fact a rule that is already impacting
jobs, already being enforced, and I deeply appreciate your
willingness to include this in this hearing. I think it is
incredibly important for my state and ultimately yours and the
rest of our counterparts. Thank you.
Mr. Bishop. Thank you. Mr. Amodei, do you have any other
questions for this panel?
Mr. Amodei. No. Thank you, Mr. Chairman.
Mr. Bishop. Thank you. With that, then we want to thank the
gentlemen who have been on this particular panel for your
testimony, for taking the time and effort to come and join with
us today in what has turned out to be a rather long hearing but
a significant hearing as well. Once again, your written
testimony will be included. If indeed there are other
questions--they may be coming to you--we would ask for a
response at some particular time.
If there are no other questions, and once again, with a
great deal of gratitude for all of the witnesses who have come
here and spent your time with us, the hearing record will be
open for 10 days to receive any other questions or responses,
and if there is no objection or further business, the
Subcommittee will stand adjourned.
[Whereupon, at 1:06 p.m., the Subcommittee was adjourned.]