[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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                     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.
---------------------------------------------------------------------------
    \1\ Jose Ortega y Gasset, The Revolt of the Masses (New York: 
Norton, 1993).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \6\ U.S. Government Accountability Office 2009.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \3\ Matt Weiser, ``Battle Creek at risk from roads,'' Sacramento 
Bee, November 09, 2011.
---------------------------------------------------------------------------
    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.]

                                 
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