Congressional Record, Volume 141 Issue 141 (Tuesday, September 12, 1995)

[Congressional Record Volume 141, Number 141 (Tuesday, September 12, 1995)]
[House]
[Pages H8788-H8800]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

ISSUES OF IMPORT TO AMERICA

The SPEAKER pro tempore. Under the Speaker's announced policy of May

[[Page H 8789]]
12, 1995, the gentlewoman from Idaho [Mrs. Chenoweth] is recognized for
60 minutes as the designee of the majority leader.
Mrs. CHENOWETH. Mr. Speaker, I have three items that I wish to speak
with you on and address tonight.
The first item that I very briefly would like to address are comments
on the Endangered Species Act reform. I do want to say that I did
attend all 12 of the task force hearings on the Endangered Species Act
Task Force, from one end of this country to another, and what I heard
from the American people was very, very clear.
No. 1, I heard that the current Endangered Species Act is not working
for people or for wildlife.
No. 2, I heard that we need reform that does not trample on States'
rights.
No. 3, I heard from the American people, thousands of them, that we
need reform that offers incentives to landowners, not punitive measures
by a government that has grown too large and too prosperous at the
expense of private property owners.
We heard that we need a bill that does not increase our regulation,
but decreases it in the Endangered Species Act. We also heard that we
need a bill that compensates landowners immediately for any taking
under any authority designated by Congress under the Endangered Species
Act.
Mr. Speaker, for the record, I will work toward these goals. I will
work very hard toward these goals, as we debate the Endangered Species
Act reform. It is critical that people are put in this equation of the
endangered species, because truly, the American producer, if the trend
continues, will be the endangered species.
I want to thank you, Mr. Speaker, for this time, because I want to
speak on my second issue. I want to speak about the nature of power and
the threat posed to our freedoms when those in power act against the
law.
Nearly 70 years ago Justice Louis Brandeis, in the U.S. Supreme Court
in his opinion in a case involving Olmstead, observed that decency,
security and liberty alike demand that government officials shall be
subjected to the same rules of conduct that are the commands to the
citizens. He said that if the government becomes a lawbreaker, it
breeds contempt for the law.
Mr. Speaker, I am saddened tonight to say that I am convinced at this
time that our Government finds itself in the dangerous position about
which Justice Brandelis warned us back in 1928. Tonight in the two
issues that I will be discussing, two very, very different issues, it
will show a set of circumstances that brings the Justice's warning to
mind.
Although the individual cases could not be more different, they both
indicate a shared contempt at this time among some of our highest
ranking public officials in our land for the very laws of our land.
Mr. Speaker, one of my highest priorities when I was elected to the
U.S. Congress was to pass legislation to salvage the dead, dying,
burned, diseased, infected, and windblown timber that is now rotting on
our forest floors, in Idaho and throughout the Northwest. Yet I and my
colleagues have been thwarted at nearly every turn by the Clinton
administration as we have tried to enact tough legislation that will
salvage the burned timber and put our loggers back to work, as we
restore our forests to a healthy condition.
Let me share some history with you on why timber salvage legislation
is so important for our Western States and how our efforts in the House
to pass legislation has been turned on their head by President Clinton
and his administration.
Last year, in the Northwest alone, we had 67,000 fires, which
devastated millions of acres of Federal forested lands. The fires
burned 8 billion board feet of timber and that is enough to construct
542,000 homes and provide 1\1/2\ million jobs.
Nearly 9 years of drought in the West, along with insect infestation,
disease, and irresponsible Federal management of our western forests,
culminated in catastrophic wildfires last summer in the Western States
of Idaho, Oregon, Washington, Montana, and northern California.
Thirty-five human lives were lost in the fires. Countless animals
were savagely burned and destroyed and more than 4 million acres of
Federal forest land burned with over $1 billion being spent to fight
the fires.
When President Theodore Roosevelt established the National Forest
System, he made it very clear in his writings that the uses for these
lands would be very careful utilization, which was essential for our
Nation.
The President stated that the forests are for the use of the people
under proper restrictions; grazing privileges, timber cutting, haying,
and other similar privileges. In addition, the mission of the Federal
land management agencies, as directed by Congress, is to meet the
diverse needs of the people, not the grizzly bear, not the wolf, not
the marmot, but the people, by advocating a conservation ethic in
promoting the health, productivity, diversity, and the beauty of the
forests and associated lands, listening to people and responding to
their diverse needs in making decisions and protecting and managing the
National Forests and grasslands to best demonstrate the sustainability
of the multiple use management concept. Theodore Roosevelt, the father
of the concept of the Forest Service.
The wildfires in the Western States were sparked by nature, but the
intensity of these fires could have been prevented with good
stewardship in our forests, good fire suppression techniques by the
Forest Service and the Bureau of Land Management, and good overall
management by these agencies.
After the fires of last summer, Members of Congress from the Western
States requested swift action of the administration to log the burned
timber. Time was of the essence as burned timber loses its value
rapidly and can cause environmental damage to riparian areas,
watersheds, erosion control, streams and spawning habitats in our
rivers and streams.
The administration shuffled its feet while we lost these valuable
national resources, but there was no action from the administration. I
came to Congress ready to pass legislation to move that timber into
mills, put loggers back to work, and restore economic health along with
my other colleagues from the West, to these devastated communities.
When I arrived in Washington, I was pleased to find that other like-
minded colleagues who believe that immediate removal of this salvage
timer, as required in the Multiple Use-Sustained Use Act, the Resource
Planning Act, and the National Forest Management Planning Act, which is
already required and we were not making new law, and the return to
well-established forest health practices, was a priority.
The situation was so extreme that hearings on the emergency salvage
situation were held within a month of the start of the new Congress, in
spite of the heavy load that we had with the Contract With America.
Together, many of us in the House with heavily forested districts
forged the basis for legislation which was included in the fiscal year
1995 Emergency Supplemental Appropriations and Rescissions bill.
This language set very clear goals for the administration to remove
dead and dying timber. However, the administration snubbed our goals of
renewing our forests and putting money back into our local economies
and the Treasury, and the President vetoed our rescission bill, H.R.
1159 on June 7, 1995.
In his veto message the President expressed his opposition to the
timber salvage proposition of the bill, and I quote the President's
words that said that, ``They would override existing environmental laws
in an effort to increase timber salvage.'' He said, ``I urge the
Congress to delete this language and separately to work with my
administration on an initiative to increase timber salvage and improve
forest health.''
When is this man going to learn what a real contradiction is? That is
it.
I find it interesting that the President, Mr. Clinton, paid lip
service to forest health, when his land management agencies have
essentially abdicated their responsibilities toward managing our
forests for multiple use. The fires could have been prevented if the
agencies were managing the forests properly.
During the post-veto negotiations with the White House, several
changes were made to accede to administration demands. These changes
prompted a

[[Page H 8790]]
June 29, 1995, letter from President Clinton to Speaker Gingrich on
reinforcing and reenacting the timber salvage provision. The President
stated, in his own letter signed in his hand, that said to Speaker
Gingrich, ``I want to make it clear that my administration will carry
out the program of timber salvage with its full resources and a strong
commitment to achieving the goals of the program.''
I would like to enter this letter for the Record, and I will do that,
Mr. Speaker, at the conclusion of my remarks.
The President's words remain a mystery to me, because, Mr. Speaker,
they have not shown in any instance to be carrying out the very
legislative goals that he agreed to.
After passage of the rescission bill, the President then issued,
after he got everything or much of what he wanted from this Congress,
then the President reversed himself. After signing this into law, he
issued a memo to the land management agencies on August 1 in which he
stated, ``I do not support every provision of the rescission bill, and
most particularly the provisions concerning timber salvage.''
Mr. Speaker, I would like to enter this into the Record also.
I find this statement to be incredibly egregious, after the President
held up our legislative process on timber salvage through his veto.
Days, weeks, and months were lost trying to negotiate this bill with
him and the value of the burned timber declined.
But this is only the beginning of the administration's outrageous
actions on this issue. Shortly after the August 1 memo, the Secretaries
of Agriculture, Interior, Commerce, and the Administrator of the EPA,
under the President's direction, entered into a memorandum of
agreement. I will enter this memorandum of agreement into the Record,
Mr. Speaker.
This memorandum of agreement outlines a bureaucratic process that is
nothing more than a smoke screen to prevent the agencies from
harvesting timber. It is a heartbreaker for those of us who wanted to
break through the administrative paralysis that has encompassed this
country for the last number of years.
Mr. Speaker, let me make it very clear, the rescissions bill did not
tell the administration to create a new bureaucracy. We did not tell
the administration that they could take their time to get the timber
out.
{time} 2130

Let me tell you what this lawmaking body, the U.S. Congress, did say
very clearly. We said expedite salvage timber immediately, that this
was an emergency. The President of the United States is sworn to
enforce the law. In fact, in article 2, section 3, as the President
puts his hand on the Bible and swears an oath to his new duties and his
new office, in article 2, section 3, he stated that he will faithfully
take care that all of the laws of the land are faithfully executed.
That is what the President of the United States pledged to when he
became President.
Our Constitution does not give the President the choice of
determining which laws he wants to faithfully execute. In fact, I
remind you, Mr. Speaker, that he signed this law into law with his own
hand.
I would like to take just a few moments to highlight some of the
language from the rescission bill and show just how the President is
knowingly circumventing law. The rescissions bill states that upon
completion of timber salvage sales, the preparation, advertisement,
offering and award of such contracts shall be performed notwithstanding
any other provisions of law, including a law under the authority of
which any judicial order may be outstanding on or after the date of the
enactment of this act. This is what the President signed into law.
The language of the memorandum of understanding states that the
parties will agree to comply with previously existing environmental
laws except where expressly prohibited by Public Law 104-19, notably in
the area of administrative appeals and judicial review. This is a
blatant disregard of the law. Clearly, the legislation says to
undertake additional salvage notwithstanding any other provision of
law. The administration has created arbitrary requirements that do not
exist in an effort to slow this process down.
Second example: The law that we passed that was signed into law by
the President states that there shall be expedited procedures for
emergency salvage timber sales and lays out very clearly the sales
documentation. Yet the language in the memorandum of understanding is
contrary once again. It states that the parties agree, and now this is
the Government agencies agreeing among themselves; this never came to
the Congress, but the parties agree, the agencies of the Federal
Government agree to adhere to the standards and guidelines of
applicable forest plans and land use plans and their amendments and
related conservation strategies, including but not limited to, the
western forest health initiative and those standards and guidelines
adopted as part of the President's forest plan for the Pacific
Northwest, PACFISH, INFISH and the red-cockaded woodpecker, long-term
strategy, as well as the goals, objectives and guidelines contained in
the Marine Fisheries Service biological opinion on the Snake River
Basin land resource management plans through the interagency team
approach agreed to in the May 31, 1995, agreement on streamlining
consultation procedures.
Mr. Speaker, that is not emergency salvage procedures. That is not
streamlining procedures.
The President's forest practice, PACFISH, INFISH and the National
Marine Fisheries Services' biological opinion are nothing more than
staff opinion. Yet the agencies have put these initiatives above the
law passed by this Congress, signed by the President of the United
States, and I tell you, Mr. Speaker, that
is outrageous.

The memorandum of understanding or agreement expands the authority of
the Environmental Protection Agency, the Fish and Wildlife Service and
the National Marine Fisheries Service far beyond their congressionally
mandated current authority. It is time we held the administration
accountable for violations we have seen as it relates to timber salvage
and the blatant abuse of a President who, without care, discharges the
oath of office that he took. This President is doing everything in his
power to tear down the rural economies that have been built in this
great Nation and in the West.
Mr. Speaker, lest anyone cast any doubt, there is a war on the West.
This in only one of the battles that we will fight, but we will fight.
I can tell you, Mr. Speaker, the West was not settled by wimps and
faint-hearted people, and we will not give it up easily.
This Representative from Idaho will not back down until I am secure
in knowing that my President and my Government are upholding the
Constitution of the United States.
Mr. Speaker, I now would like to turn to another example of how some
agencies of the Federal Government have become law breakers. The
consequences of this incident have been not merely economic but
actually resulted in three deaths. There has been another casualty as
well in the tragic incidents at Ruby Ridge: public confidence in
several of our Federal agencies we depend on to enforce laws and
administer justice. I am speaking, of course, Mr. Speaker, of the
ongoing investigation into the Government's ill-fated siege directed
against the Weaver family at Ruby Ridge, ID, in my district, which is
the first district in Idaho, which I represent.
I am encouraged that the Senate and this Congress is finally
beginning to review this matter. However, it is unfortunate that it has
now taken 3 years for us to get to this point. I am saddened that we
will never be able to restore a mother and her son who were unjustly
ripped away from a family. Moreover, we will never be able to ignore
the fact that the Weavers were unfairly and tragically targeted because
of their religious beliefs, and we will never be able to end the grief
and the lack of justice the Weavers have experienced in the 3 years
since their tragic loss. But I believe that some good can result from
this, and as out of the ashes, we will always have hope that the
Phoenix will rise. We must be able to hope that this tragedy will yield
a courage and a will from this Congress to take a hard stand by
recommending that there be severe punishment for those who have wronged
not only the Weaver family but this country and our confidence in our
law enforcement agencies.

[[Page H 8791]]

We as a Congress must have the courage and the will to set down a
hard-line rule so that this never again happens to another family in
the United States of America, the land of the free, the home of the
brave, and it used to be the hope and the light of the world. We want
to see America there again.
Since the beginning of the siege on the home of Randy and Vicki
Weaver, I have closely followed the developments that have occurred in
the 3 years after that. I have spent a considerable time studying the
details of the events surrounding Ruby Ridge, including spending time
at the trial and speaking with people who were there and who were
directly involved. Some have said that what happened at Ruby Ridge was
merely the result of minor oversights made by a few Federal officials
in one incident involving an individual whose religious beliefs are
generally
misunderstood and spurned by society.

Some have even suggested that this was merely a case of using venom
against venom and should not be receiving the attention it is getting
and are questioning the wisdom of even holding the hearings. Nothing
could be further from the truth.
I commend my senior Senator, Senator Larry Craig, and Senator Specter
for their participation, for their study and the time that they have
given to this incident in the Senate hearings. I am very proud of the
search for truth by the Senate and also by the Congress.
What I have observed, though, as I have kept track of the
developments of Ruby Ridge and this incident, has deeply concerned me
even to the point that what has been uncovered is, in part, what
motivated me to run for Congress. In fact, the issues that have arisen
because of Ruby Ridge involve basic principles that govern this Nation.
I believe that the result of the congressional investigations into
Ruby Ridge will have significant ramifications on how our people view
our Government and how Federal law enforcements will respond to the
constitutional rights of citizens in the future, because this incident
involved several law enforcement agencies ranging all the way from
BATF, the U.S. marshals office, the Federal Bureau of Investigation,
the Army, the National Guard, the U.S. district attorney's office, and
on and on, and includes actions from the most basic field agents to
heads of departments in the administration. It allows us to take a
close look at the principles and rules our law enforcement agencies are
governing themselves by.
In essence, Ruby Ridge is not only the seminal incident that created
citizen distrust and citizen questioning of our law enforcement
agencies, but it has become the litmus test on the Government, on how
it will treat the most basic rights of individuals.
I do think that there are many, many wonderful and hardworking
individuals in law enforcement who are doing a fine job keeping the
peace and of pursuing real criminals. However, I also believe that
lately there are some rogues in law enforcement as well who are
dictating policy.
I have attended the hearings that are ongoing in the Senate, the
other body, and I believe that so far these hearings have revealed very
interesting facts, and the Senators are doing an excellent job of
getting to the heart of the matter.
Last week, I, along with a lot of the American public, viewed the
Randy Weaver testimony and Mr. Weaver's description of how agents from
the U.S. Federal Marshals Service for 16 months had executed an
intensive reconnoitering surveillance, as they call it, of his home,
that included hundreds of hours of filming the everyday proceedings of
his family with the satellite-powered cameras, which included plans to
kidnap his daughter Sarah, which included plans and the execution of
setting up command centers in the homes of neighbors and sending many
undercover agents posing as supporters to the Weavers' home, enjoying
their openness, their friendliness and their hospitality.
The committee listened to Mr. Weaver as he explained how never once
not once did a U.S. marshal come to his home and identify himself as a
Federal agent desiring for Mr. Weaver to come down from the mountain
and appear in court. Never once did any agent discuss complying with
the simple terms that Mr. Weaver requested before surrendering: that
his home and his family be protected and that certain officials that
had offended him apologize. What a small thing
to ask for to keep the peace.

It is our responsibility as Federal elected officials and the
responsibility of Federal agents to maintain the peace and tranquility
of this country. This kind of action did not further the peace and
tranquility of this country, Mr. Speaker.
In fact, the only terms the agents would allow him, offered in
messages that were given through neighbors instead of directly by the
agents, was that Mr. Weaver admit his guilt, without any trial or due
process. Instead of negotiating, the U.S. Marshal's Service initiated
military like reconnaissance missions to determine what would be the
best way to invade the Weaver home. U.S. marshals on one of these
missions excited the family dog by throwing rocks at it, drawing the
attention of the family who thought that the dog might be responding to
one of the many wild animals in the area.
The committee listened, rivited, to Mr. Weaver's agonizing depiction
of how he made the most regrettable decision of his life when he sent
his 14-year-old son Sammy down the road with a rifle to see what the
dog was barking at, and how those agents shot a young boy's dog at his
feet, and how a Federal marshal, dressed in a terrifying paramilitary
uniform, jumped out of the bushes and yelled to Sammy, halt, and how
these events led to a gun battle that ended with the tragic death of
the young boy, Sammy, barely 14 years old, barely weighing 80 pounds,
shot first in the arm and then twice in the back. The last words his
father heard him say were, ``I am coming home, Dad.''
Mr. Weaver and his wife, Vicki, no longer caring if they were fired
at, went down the hill to retrieve the small body of their son.
We listened as Mr. Weaver narrated the events of the following day:
of how, in the dead silence of late afternoon, and without any warning
or even an announcement of the presence of the FBI, as he was
attempting to enter the shed where the body of his slain son lay, he
was shot in the back without warning by a trained sniper from the FBI
hostage rescue team, a group that is trained by the military for crises
that involve international terrorists.
{time} 2145

Mr. Speaker, I hardly think that Randy Weaver was an international
terrorist. We were mortified, as we listened, to hear how the FBI
sniper fired again, this time into the Weavers' home, striking Vicki,
the wife, in the head. This mother was holding nothing more dangerous
than her 10-month-old baby. The bullet struck her face. The human
shrapnel struck Sara in the face. The mother was killed instantly, and
Sara was wounded, and the Pershing bullet entered into a family friend,
Kevin Harris, severely wounding him.
Mr. Weaver recounted how he and what was left of his family--in their
home and not some military compound--were surrounded for almost 2 weeks
by an army of over 400, complete with tanks, and helicopters,
personnel, armored personnel carriers, et cetera. They had to keep
clear of the windows and stay low to the ground for fear of being shot.
In the meantime, the Government made little or no attempt to negotiate
with the Weavers. The agents did, however, torment the family by
broadcasting morbid messages over loud speakers to Vicki Weaver, who
lay dead under the family's kitchen table.
The Federal agents tunnelled under Mr. Weaver's house and his home,
and they sent a tank-like robot up to the house with a phone placed on
one arm, and a shot gun mounted on the other with commands to Mr.
Weaver to come out, pick up the phone, and negotiate with him. When Mr.
Weaver saw the shotgun mounted on the robot, of course, as any American
would or anyone in their right mind would do, he declined to pick up
the phone.
Mr. Weaver found out later that the FBI was considering measures to
inject CS gas into the home, or placing explosives to blow out the
walls of the home.
These are all the documents that are now in the court documents.
This vast array of Government force was brought to bear against a
small,

[[Page H 8792]]
but loving, Idaho family, the Randy Weaver family, and, although the
family owned several legal firearms, they were owned legally, as were
the rounds that Randy Weaver had stored there. They were legal.
After the initial exchange of shots with U.S. Marshals, the Weavers
never even aimed or fired their guns at anyone. Those initial shots
were those shots that were fired at the Y when Sammy Weaver was shot in
the back. Kevin Harris responded not knowing who was shooting the small
boy who went down right in front of him. That was all the shots that
were fired by anyone who lived in the Weaver home.
However, the U.S. Marshals' office and the U.S. Marshals called the
Federal Bureau of Investigation stating that they were taking hundreds
and hundreds of rounds of ammunition from the Weavers. I hardly think
so. A grieving mother and father who went down to the Y, picked up the
dead body of their 80-pound son was not firing hundreds of rounds at
the marshals.
We grieve at the death of Vicki and Sammy Weaver, and we grieve at
the death of Marshal Deacon, but, as I listened to these frightening
details of the Government siege on the Weaver home which began well
before the shootout, it became very clear to me that one of the
elemental freedoms of this country that it is founded upon had been
violated in the very worst way. It is a tenant basic to our democracy,
characterized well by patriots in the 1760's that simply states ``a
man's house is his castle; and while he is quiet, he is well guarded as
a prince in castle.'' This is an idea that has its roots as early as
the Magna Carta of 1215. William Pitt eloquently expressed this concept
in stating: ``The poorest man may in his cottage bid defiance to all
the forces of the Crown. It may be frail, its roof may shake, the wind
may blow through it, the storm may enter, but the King of England
cannot enter, all his force dares not cross the threshold of the ruined
tenement.''
Can anyone find a better metaphor to describe what happened at Ruby
Ridge than that statement?
And also, at a Boston Town Hall meeting in 1772, it was stated that
without the Bill of Rights ``officers may under the colour of law and
cloak of general warrant break through the sacred rights of the
domicil, ransack men's houses, destroy their securities, carry of their
property, and with little danger to themselves commit the most horrid
murders.''
This was 1772 that this quote came out of a Boston town meeting.
Ladies and gentlemen, our Founding Fathers understood that, unless we
respect what is in the Bill of Rights and the protections afforded to
us in the U.S. Constitution, that someday we will be living through
what we are having to live through today.
In fact, revolutionaries such as Patrick Henry and others, used the
Crown's regular practice of aggressive search and seizures as a battle
cry for the addition of our Bill of Rights. It was Patrick Henry who
said that without those rights added to the Constitution ``the officer
of Congress may come upon you now, fortified with all the terrors of
paramount federal authority. Excisemen may come in multitudes; for the
limitations of their numbers no man knows.''
Ladies and gentlemen, these words were spoken by Patrick Henry. Again
I challenge anyone to come up with a more accurate description of the
gross excessive force used on Ruby Ridge than that.
For several hours the committee listened to the testimony of Randy
Weaver, and the blatant infringements on his and his family's rights,
the tragic loss of life that occurred as a result, and the year and
half of imprisonment--all because he had been inaccurately
characterized as a terrible threat to society on a web of fabricated
charges, some stemming out of the mere fact that he had a newly
purchased pickup sitting in his front yard, that he had a TV dish, and
that, surely because of all these things, maybe he could have been
involved in some bank robberies when all Randy Weaver and his family
wanted was to be left alone, and, for refusing to come down from his
home because he was afraid, because he had been told by a Federal judge
that he would lose everything he possessed, including his property and
his children, over his children he chose to stay with his family.
But what I found amazing and even admirable about Randy Weaver, even
though I do not agree with his political views, is that despite all the
unjust actions directed toward his family, he sat before the Senate
Committee and the country and admitted his mistakes.
``If I could do it over again,'' he stated, ``I would never have sold
those sawed-off shotguns, and I would have come down that mountain and
gone to court.'' He even apologized for any actions or words that have
harmed anyone. He said this despite the fact that a jury of his peers
had found conclusive evidence that he was deemed to be innocent of
selling those weapons because that jury of his peers determined that he
had been entrapped by the Bureau of Alcohol, Tobacco and Firearms.
I believe that anyone could understand why he would not want to come
down from the mountain to face law enforcement officers when the first
time he was arrested, he was bushwacked by several BATF agents posing
as stranded motorists, and his wife, who was not even charged with
anything, was thrown face first into the snow and hand-cuffed.
Moreover, the judge incorrectly threatened--the Federal judge, the
Federal magistrate, incorrectly threatened Mr. Weaver that, if he lost
his case, he would have to pay the court's cost, and that would mean
losing everything that he owned.
What was even more astounding about Mr. Weaver's testimony, was that
this man, who was deemed by the Government to have a ``propensity for
violence,'' and considered ``dangerous to society,'' in his final words
before the committee expressed his respect and affection to those
Senators for allowing him to tell them his story. He even left with
them his hope and trust that justice would occur for the wrongful
deaths of his wife and son.
I ask you, Mr. Speaker, does this sound like a man who is an enemy to
society? Mr. Weaver faced the court of public opinion. Some of the
informants used by the BATF were shielded, and their voices were
disguised. Mr. Weaver's 19-year-old daughter and Mr. Weaver himself
faced the hard truth of having to recount what happened to them. They
were not shielded; they were not protected. They stood before the
Senate and the American people and told their story.
The truth of the mater is that whatever acts Randy Weaver has
committed against society, he has paid for them. I say ``acts,''
because in this country, we are judged by how we act, not how we think.
Mr. Weaver has more than paid his debt to society--our attention must
now be turned to the actions of Government officials.
I do want to say that many of us would have stood beside the rights
that Mr. Weaver and all Americans have. I disagree politically. We even
disagree in our religious foundations. Two people could not have
disagreed more than Gerry Spence and this Congressman, and yet in spite
of our political and religious differences, we both stand up, as did
many people in this Nation, for the protection of everybody's rights of
life, liberty, and the pursuit of happiness.
What I have seen so far of the response of Federal officials to their
actions before, during, and since the Ruby Ridge incident has been in
stark contrast to the humble admission by Randy Weaver. In fact, it has
been disturbing.
The first duty of any public institution is to maintain the public
trust. In a situation in which the public trust was betrayed, the
leaders of these institutions responded by attempting to protect
themselves and their colleagues rather than acting to protect the
public trust.
Instead of conducting a thorough investigation of the abuses that
were committed by agents, and immediately disciplining them for their
subpar performance, the Justice Department went about finding ways to
whitewash the situation.
The FBI is now on their third investigation.
Officials seemed more determined than ever to portray Mr. Weaver as a
religious zealot who belonged in the company of real criminals that had
committed repulsive crimes, and when a jury found no basis whatsoever
for all of the charges against Randy Weaver

[[Page H 8793]]
with the exception of failure to appear in court, the Justice
Department decided to spin the story another way, by initiating another
still un-released report admitting to a few sloppy ``oversights,'' and
even some violations of the Constitution, but resulted in the mere
censuring of a few agents.
What was even more a ``slap in the face'' of justice was the
promotion of Larry Potts to the second highest position in the FBI;
this man who was in part responsible for issuing the unconstitutional
``shoot on sight'' rules of engagement. Those rules of engagement
translated as death warrants for Vicki Weaver.
Only now, after 3 long years, and public outcry, is the Justice
Department beginning to investigate possible criminal actions of
Federal agents.
The Justice Department has even settled monetarily with the Weavers--
emphasizing that by doing so, the Department was not admitting any
injustice. As far as I know, the Government has not even publicly
apologized to the Weaver family.
Last Thursday and Friday, as the Committee began to hear the BATF's
version of the story, I was outraged again to see BATF officials in a
complete show of arrogance.
They refuse to acknowledge any error or wrongdoing by any of their
agents who carried out the original investigation and fabrication of
charges against Randy Weaver.
{time} 2200

The Director of the BATF, John Magaw in his testimony stated that he
was ``convinced that the BATF's agents conduct was lawful and proper in
every respect.'' He said this despite the fact that the Committee had
before them numerous pieces of evidence that prove that the Weaver
investigation was poorly conducted and unfairly maligned Mr. Weaver.
The purpose of the BATF's investigation of Mr. Weaver was not to stop
a suspected law-breaker at all. The purpose of the investigation was to
try to trick Mr. Weaver into breaking the law so that the agency could
then force Mr. Weaver to become a spy for the agency.
This scenario is like some sort of paranoid movie script.
Unfortunately, it really happened.
All of the information about supposed criminal intentions by Randy
Weaver originated solely from an undercover informant whose real name
we still do not know. This man pretended to be Mr. Weaver's friend for
3 years as he worked to set this elaborate trap on a law-abiding man.
This mysterious informant had testified at the trial that he assumed
his pay would be based on whether or not there would be a conviction.
In other words, he would be paid on how well he would be able to coerce
someone into committing a crime. That is called ``entrapment,'' and is
against the law.
After the BATF succeeded in getting Mr. Weaver to illegally saw off
two shotguns, the agency needed to convince the U.S. Attorney to press
charges.
In letters to the Federal prosecutor, BATF agent Byerly communicated
several untruth's, pure hearsay, and clear embellishments of real
events about Mr. Weaver.
Without substantiating evidence, Agent Byerly portrayed a dangerous
criminal, a kind of Nazi ``Rambo'' monster that made U.S. Marshals and
the FBI believe that it was necessary to unleash a massive show of
force on Ruby Ridge.
My question is, How can the Director of BATF ``review'' these details
of the investigation, and determine that the actions of his agents were
``lawful'' and ``proper in every respect?''
I am reminded of the war crimes cases that followed World War II, and
which helped establish certain important legal principals.
One case involved Japanese Gen. Tomayuki Yamashita. He was tried and
sentenced to death for failing to properly discharge his duty by
permitting the members of his command to commit atrocities against
Americans and Filipinos during the final year of the war.
Fifty years ago, Yamashita's direct command and control over the
individual actions of his soldiers was far less than what leaders have
now--in this age of satellite communications, fax machines and jet
airplanes.
Writing of the incident in the Harvard Law Review, Leonard Boudin
observed that ``The serious question confronting all citizens, however,
is whether the ultimate responsibility lies * * * with the highest
civilian authorities. * * * While presumably horrified at the details
of such individual atrocities * * * they certainly are aware of
creating a general environment in which those atrocities become
inevitable.''
I am concerned that the leadership of these agencies may be
responsible for creating a general environment in which an incident
such as this became inevitable.
What I found equally troubling was Director Magaw rejecting the
verdict of a Jury of Citizens who had found Mr. Weaver innocent of
weapons charges because he was entrapped.
Mr. Magaw instead chose to disregard most of the arguments presented
in a court of law, and create a new version of the details to suggest
that the Jury was incorrect in its verdict.
It was Thomas Jefferson who said ``I consider trial by jury as the
only anchor ever yet imagined by man by which a government can be held
to the principles of its Constitution.''
With that statement in mind, what happens when the Government ignores
the decision of jury?
This is the type of arrogant and unchecked behavior by Government
agencies that concerns Americans, and contributes greatly to the sense
of fear and distrust that many Americans have of their Government.
Moreover, it portrays a bad image for those who work in our
Government whose service is exemplary and upstanding. I strongly
believe words by Attorney Gerry Spence in his book about Ruby Ridge,
``From Freedom to Slavery,'' in which he attests that ``the ultimate
enemy of any people is not the angry hate groups that fester within,
but a government itself that has lost its respect for the individual.''
Mr, Weaver has quoted his father, who said that the Government and
society is like a garden--sometimes a garden grows some weeds, and
those weeds need to be plucked, or they will choke the garden. With
that in mind, I stand on the floor of this House of Representatives and
strongly urge our government to put their courage in the sticking place
and pluck some of those weeds.
I call for the firing of Agent Herb Byerly. His deceitful tactics
created the ideal atmosphere for a deadly and unnecessary conflict. I
call for the complete firing of Larry Potts, and any others who
contributed to the development of death warrants for the Weaver family.
I think FBI Director Freeh should, himself seriously consider
stepping down as director. His decision to promote Larry Potts to the
2nd highest position in the FBI calls his judgment into question.
What is even more deplorable was his willingness to protect and
defend Mr. Potts and his indefensible actions, simply because Mr. Potts
was his close friend.
I call for the firing and prosecution of HRT sniper Lon Horiuchi--for
firing a weapon into a man's home knowing that children were in that
home. Some may say that he was simply following orders.
Have we not learned from the past war crimes trials that unlawful
orders from superiors do not act as a shield for unlawful actions by
those following those orders?
I call for a thorough investigation into the actions of all the
Government agents involved in Ruby Ridge--from top to bottom--to see
what prosecutions need to occur. Many of these agents are still
entrusted with the enforcement of our laws today.
Some will call these stern recommendations ``overreacting,'' but I
believe they are not. What happened at Ruby Ridge is far reaching in
scope. It exposes some very ugly attitudes that are currently inherent
in law enforcement. These elements must be quickly and forcefully
expelled to prevent them from growing more abusive, and to also return
the faith of a somewhat agitated people to its Government. In my
opinion, the best way to prevent future Government abuses is to make
those who have committed such abuses accountable for their actions.
In closing, I would invoke the words of Justice Brandeis in their
entirety * * *

The greatest dangers to liberty lurk in insidious
encroachment by men of zeal, well-

[[Page H 8794]]
meaning but without understanding. Decency, security and liberty alike
demand that Government officials shall be subject to the same
rules of conduct that are commands to the citizen.
In a government of laws, existence of the government will
be imperiled if it fails to observe the law scrupulously. Our
Government is the potent, the omnipresent teacher. For good
or for ill, it teaches the whole people by its example. Crime
is contagious. If the government becomes a law-breaker, it
breeds contempt for law; it invites every man to become a law
unto himself; it invites anarchy. To declare that in the
administration of the criminal law the end justifies the
means--to declare that the government may commit crimes in
order to secure the conviction of a private criminal--would
bring terrible retribution.

The Ruby Ridge tragedy is worth our attention. Our form of Government
is the greatest on earth. I believe that, if we as a Congress act
decisively in this matter, this will be a golden opportunity for the
people of this country to witness once again that the system our
founding father established works--and that no one, including a
government official, can live and act above the law and expect to get
away with it.
Mr. Speaker, I include for the Record the items referred to earlier.
Department of Agriculture, Forest Service, Department of
the Interior, Bureau of Land Management, Department of
Commerce, National Marine Fisheries Service, Department
of the Interior, Fish and Wildlife Service,
Environmental Protection Agency.

Date: August 18, 1995.
Subject: Salvage Sale Provisions of P.L. 104-19
To: Regional Foresters, USDA Forest Service,
State Directors, USDI Bureau of Land Management,
Regional Directors, USDI Fish and Wildlife Service,
Regional Directors, USDC National Marine Fisheries Service,
Regional Administrators, Environmental Protection Agency.
On July 27, 1995 the President signed the Rescission Act
(Public Law 104-19, Enclosure 1) which contains provisions
for an emergency salvage timber sale program as well as for
``Option 9'' and ``318'' sales. The salvage provisions of the
Act, which are the subject of this letter, are intended to
expedite salvage timber sales in order to achieve, to the
maximum extent feasible, a salvage sale volume above the
programmed level to reduce the backlogged volume of salvage
timber. The authorities provided by P.L. 104-19 are in effect
until December 31, 1996.
President Clinton has directed the Secretaries of
Agriculture, the Interior, and Commerce, the Administrator of
the Environmental Protection Agency, and the heads of other
appropriate agencies to move forward to implement the timber
salvage provisions of P.L. 104-19 in an expeditious and
environmentally-sound manner, in accordance with the
President's Pacific Northwest Forest Plan, other existing
forest and land management policies and plans, and existing
environmental laws, except those procedural actions expressly
prohibited by Public Law 104-19 (Enclosure 2). Consistent
with the President's direction, an interagency Memorandum of
Agreement (MOA) on timber salvage has been developed
(Enclosure 3). The undersigned Agency heads attest that they
understand the direction in the MOA and will fully comply
with that direction.
The purpose of the MOA is to reaffirm the commitment of the
signatory parties to continue their compliance with the
requirements of existing environmental law while carrying out
the objectives of the timber salvage related activities
authorized by P.L. 104-19. In fulfilling this commitment, the
parties intend to build upon on-going efforts to streamline
procedures for environmental analysis and interagency
consultation and cooperation. Interagency collaboration is
vital to achieving this purpose. Working together, we have an
opportunity to show our professionalism and meet the
challenge before us. We expect you to work cooperatively to
give this high priority program your very best effort.
Enclosure 4 provides clarification and direction for those
portions of the MOA that are not self-explanatory or that
require follow-up actions. Additionally, Forest Service/
Bureau of land Management monitoring guidance, which includes
involvement of other agencies, is provided for your use
(Enclosure 5).
Separate guidance will be provided for other items not
covered by the MOA and items needing additional detailed
explanation. Separate direction also will be sent regarding
the Option 9 and ``318'' sales provisions of P.L. 104-19.
(Signed) Jack Ward Thomas
for Jack Ward Thomas,
Chief, Forest Service, Department of Agriculture.
(Signed) John G. Rogers
for Mollie Beattie,
Director, Fish and Wildlife Service, Department of the
Interior.
(Signed) Richard E. Sanderson
for Steven A. Herman,
Assistant Administrator for Enforcement and Compliance
Assurance, Environmental Protection Agency.
(Signed) Nancy K. Hayes
for Mike Dombeck,
Director, Bureau of Land Management, Department of the
Interior.
(Signed) Gary Matlock
for Rolland Schmitten,
Director, National Marine Fisheries Service, Department of
Commerce.
Enclosure 1

Emergency Salvage Timber Sale Program

(Text of Section 2001 of Public Law 104-19)

SEC. 2001.

(a) Definitions.--For purposes of this section:
(1) The term ``appropriate committees of Congress'' means
the Committee on Resources, the Committee on Agriculture, and
the Committee on Appropriations of the House of
Representatives and the Committee on Energy and Natural
Resources, the Committee on Agriculture, Nutrition, and
Forestry, and the Committee on Appropriations of the Senate.
(2) The term ``emergency period'' means the period
beginning on the date of the enactment of this section and
ending on September 30, 1997.
(3) The term ``salvage timber sale'' means a timber sale
for which an important reason for entry includes the removal
of disease--or insect-infested trees, dead, damaged, or down
trees, or trees affected by fire or imminently susceptible to
fire or insect attack. Such term also includes the removal of
associated trees or trees lacking the characteristics of a
healthy and viable ecosystem for the purpose of ecosystem
improvement or rehabilitation, except that any such sale must
include an identifiable salvage component of trees described
in the first sentence.
(4) The term ``Secretary concerned'' means--
(A) the Secretary of Agriculture, with respect to lands
within the National Forest System; and
(B) the Secretary of the Interior, with respect to Federal
lands under the jurisdiction of the Bureau of Land
Management.
(b) Completion of Salvage Timber Sales.--
(1) Salvage timber sales.--Using the expedited procedures
provided in subsection (c), the Secretary concerned shall
prepare, advertise, offer, and award contracts during the
emergency period for salvage timber sales from Federal lands
described in subsection (1)(4). During the emergency period,
the Secretary concerned is to achieve, to the maximum extent
feasible, a salvage timber sale volume level above the
programmed level to reduce the backlogged volume of salvage
timber. The preparation, advertisement, offering, and
awarding of such contracts shall be performed utilizing
subsection (c) and notwithstanding any other provision of
law, including a law under the authority of which any
judicial order may be outstanding on or after the date of the
enactment of this Act.
(2) Use of salvage sale funds.--To conduct salvage timber
sales under this subsection, the Secretary concerned may use
salvage sale funds otherwise available to the Secretary
concerned.
(3) Sales in preparation.--Any salvage timber sale in
preparation on the date of the enactment of this Act shall be
subject to the provisions of this section.
(c) Expedited Procedures for Emergency Salvage Timber
Sales.--
(1) Sale documentation.--
(A) Preparation.--For each salvage timber sale conducted
under subsection (b), the Secretary concerned shall prepare a
document that combines an environmental assessment under
section 102(2) of the National Environmental Policy Act of
1969 (42 U.S.C. 4332(2)) (including regulations implementing
such section) and a biological evaluation under section
7(a)(2) of the Endangered Species Act of 1973 (16 U.S.C.
1536(a)(2)) and other applicable Federal law and implementing
regulations. A document embodying decisions relating to
salvage timber sales proposed under authority of this section
shall, at the sole discretion of the Secretary concerned and
to the extent the Secretary concerned considers appropriate
and feasible, consider the environmental effects of the
salvage timber sale and the effect, if any, on threatened or
endangered species, and to the extent the Secretary
concerned, at his sole discretion, considers appropriate and
feasible, be consistent with any standards and guidelines
from the management plans applicable to the National Forest
or Bureau of Land Management District on which the salvage
timber sale occurs.
(B) Use of existing materials.--In lieu of preparing a new
document under this paragraph, the Secretary concerned may
use a document prepared pursuant to the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.)
before the date of the enactment of this Act, a biological
evaluation written before such date, or information collected
for such a document or evaluation if the document,
evaluation, or information applies to

[[Page H 8795]]
the Federal lands covered by the proposed sale.
(C) Scope and content.--The scope and content of the
documentation and information prepared, considered, and
relied on under this paragraph is at the sole discretion of
the Secretary concerned.
(2) Reporting requirements.--Not later than August 30,
1995, the Secretary concerned shall submit a report to the
appropriate committees of Congress on the implementation of
this section. The report shall be updated and resubmitted to
the appropriate committees of Congress every six months
thereafter until the completion of all salvage timber sales
conducted under subsection (b). Each report shall contain the
following:
(A) The volume of salvage timber sales sold and harvested,
as of the date of the report, for each National Forest and
each district of the Bureau of Land Management.
(B) The available salvage volume contained in each National
Forest and each district of the Bureau of Land Management.
(C) A plan and schedule for an enhanced salvage timber sale
program for fiscal years 1995, 1996, and 1997 using the
authority provided by this section for salvage timber sales.
(D) A description of any needed resources and personnel,
including personnel reassignments, required to conduct an
enhanced salvage timber sale program through fiscal year
1997.
(E) A statement of the intentions of the Secretary
concerned with respect to the salvage timber sale volume
levels specified in the joint explanatory statement of
managers accompanying the conference report on H.R. 1158,
House Report 104-124.
(3) Advancement of sales authorized.--The Secretary
concerned may begin salvage timber sales under subsection (b)
intended for a subsequent fiscal year before the start of
such fiscal year if the Secretary concerned determines that
performance of such salvage timber sales will not interfere
with salvage timber sales intended for a preceding fiscal
year.
(4) Decisions.--The Secretary concerned shall design and
select the specific salvage timber sales to be offered under
subsection (b) on the basis of the analysis contained in the
document or documents prepared pursuant to paragraph (1) to
achieve, to the maximum extent feasible, a salvage timber
sale volume level above the program level.
(5) Sale preparation.--
(A) Use of available authorities.--The Secretary concerned
shall make use of all available authority, including the
employment of private contractors and the use of expedited
fire contracting procedures, to prepare and advertise salvage
timber sales under subsection (b).
(B) Exemptions.--The preparation, solicitation, and award
of salvage timber sales under subsection (b) shall be exempt
from--
(i) the requirements of the Competition in Contracting Act
(41 U.S.C. 253 et seq.) and the implementing regulations in
the Federal Acquisition Regulation issued pursuant to section
25(c) of the Office of Federal Procurement Policy Act (41
U.S.C. 421(c)) and any departmental acquisition regulations;
and
(ii) the notice and publication requirements in section 18
of such Act (41 U.S.C. 416) and 8(e) of the Small Business
Act (15 U.S.C. 637(e)) and the implementing regulations in
the Federal Acquisition Regulations and any departmental
acquisition regulations.
(C) Incentive payment recipients; report.--The provisions
of section 3(d)(1) of the Federal Workforce Restructuring Act
of 1994 (Public Law 103-226; 5 U.S.C. 5597 note) shall not
apply to any former employee of the Secretary concerned who
received a voluntary separation incentive payment authorized
by such Act and accepts employment pursuant to this
paragraph. The Director of the Office of Personnel Management
and the Secretary concerned shall provide a summary report to
the appropriate committee of Congress, the Committee on
Government Reform and Oversight of the House of
Representatives, and the Committee on Governmental Affairs of
the Senate regarding the number of incentive payment
recipients who were rehired, their terms of reemployment,
their job classifications, and an explanation, in the
judgment of the agencies involved of how such reemployment
without repayment of the incentive payments received is
consistent with the original waiver provisions of such Act.
This report shall not be conducted in a manner that would
delay the rehiring of any former employees under this
paragraph, or affect the normal confidentiality of Federal
employees.
(6) Cost considerations.--Salvage timber sales undertaken
pursuant to this section shall not be precluded because the
costs of such activities are likely to exceed the revenues
derived from such activities.
(7) Effect of salvage sales.--The Secretary concerned shall
not substitute salvage timber sales conducted under
subsection (b) for planned non-salvage timber sales.
(8) Reforestation of salvage timber sale parcels.--The
Secretary concerned shall plan and implement reforestation of
each parcel of land harvested under a salvage timber sale
conducted under subsection (b) as expeditiously as possible
after completion of the harvest on the parcel, but in no case
later than any applicable restocking period required by law
or regulation.
(9) Effect on judicial decisions.--The Secretary concerned
may conduct salvage timber sales under subsection (b)
notwithstanding any decision, restraining order, or
injunction issued by a United States court before the date of
the enactment of this section.
(d) Direction to Complete Timber Sales on Lands Covered by
Option 9.--Notwithstanding any other law (including a law
under the authority of which any judicial order may be
outstanding on or after the date of enactment of this Act),
the Secretary concerned shall expeditiously prepare, offer,
and award timber sale contracts on Federal lands described in
the ``Record of Decision for Amendments to Forest Service and
Bureau of Land Management Planning Documents Within the Range
of the Northern Spotted Owl'', signed by the Secretary of the
Interior and the Secretary of Agriculture on April 13, 1994.
The Secretary concerned may conduct timber sales under this
subsection notwithstanding any decision, restraining order,
or injunction issued by a United States court before the date
of the enactment of this section. The issuance of any
regulation pursuant to section 4(d) of the Endangered Species
Act of 1973 (16 U.S.C. 1533(d)) to ease or reduce
restrictions on non-Federal lands within the range of the
northern spotted owl shall be deemed to satisfy the
requirements of section 102(2)(C) of the National
Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)),
given the analysis included in the Final Supplemental Impact
Statement on the Management of the Habitat for Late
Successional and Old Growth Forest Related Species Within the
Range of the Northern Spotted Owl, prepared by the Secretary
of Agriculture and the Secretary of the Interior in 1994,
which is, or may be, incorporated by reference in the
administrative record of any such regulation. The issuance of
any such regulation pursuant to section 4(d) of the
Endangered Species Act of 1973 (16 U.S.C. 1533(d)) shall not
require the preparation of an environmental impact statement
under section 102(2)(C) of the National Environmental Policy
Act of 1969 (42 U.S.C. 4332(2)(C)).
(e) Administrative Review.--Salvage timber sales conducted
under subsection (b), timber sales conducted under subsection
(d), and any decision of the Secretary concerned in
connection with such sales, shall not be subject to
administrative review.
(f) Judicial Review.--
(1) Place and time of filing.--A salvage timber sale to be
conducted under subsection (b), and a timber sale to be
conducted under subsection (d), shall be subject to judicial
review only in the United States district court for the
district in which the affected Federal lands are located. Any
challenge to such sale must be filed in such district court
within 15 days after the date of initial advertisement of the
challenged sale. The Secretary concerned may not agree to,
and a court may not grant, a waiver of the requirements of
this paragraph.
(2) Effect of filing on agency action.--For 45 days after
the date of the filing of a challenge to a salvage timber
sale to be conducted under subsection (b) or a timber sale to
be conducted under subsection (d), the Secretary concerned
shall take no action to award the challenged sale.
(3) Prohibition on restraining orders, preliminary
injunctions, and relief pending review.--No restraining
order, preliminary injunction, or injunction pending appeal
shall be issued by any court of the United States with
respect to any decision to prepare, advertise, offer, award,
or operate a salvage timber sale pursuant to subsection (b)
or any decision to prepare, advertise, offer, award, or
operate a timber sale pursuant to subsection (d). Section 705
of title 5, United States Code, shall not apply to any
challenge to such a sale.
(4) Standard of review.--The courts shall have authority to
enjoin permanently, order modification of, or void an
individual salvage timber sale if it is determined by a
review of the record that the decision to prepare, advertise,
offer, award, or operate such sale was arbitrary and
capricious or otherwise not in accordance with applicable law
(other than those laws specified in subsection (i)).
(5) Time for decision.--Civil actions filed under this
subsection shall be assigned for hearing at the earliest
possible date. The court shall render its final decision
relative to any challenge within 45 days from the date such
challenge is brought, unless the court determines that a
longer period of time is required to satisfy the requirement
of the Untied States Constitution. In order to reach a
decision within 45 days, the district court may assign all or
part of any such case or cases to one or more Special
Masters, for prompt review and recommendations to the court.
(6) Procedures.--Notwithstanding any other provision of
law, the court may set rules governing the procedures of any
proceeding brought under this subsection which set page
limits on briefs and time limits on filing briefs and motions
and other actions which are shorter than the limits specified
in the Federal rules of civil or appellate procedure.
(7) Appeal.--Any appeal from the final decision of a
district court in an action brought pursuant to this
subsection shall be filed not later than 30 days after the
date of decision.
(g) Exlcusion of Certain Federal Lands.--
(1) Exclusion.--The Secretary concerned may not select,
authorize, or undertake any salvage timber sale under
subsection (b) with respect to lands described in paragraph
(2).

[[Page H 8796]]

(2) Description of excluded lands.--The lands referred to
in paragraph (1) are as follows:
(A) Any area on Federal lands included in the National
Wilderness Preservation System.
(B) Any roadless area on Federal lands designated by
Congress for wilderness study in Colorado or Montana.
(C) Any roadless area on Federal lands recommended by the
Forest Service or Bureau of Land Management for wilderness
designation in its most recent land management plan in effect
as of the date of the enactment of this Act.
(D) Any area on Federal lands on which timber harvesting
for any purpose is prohibited by statute.
(h) Rulemaking.--The Secretary concerned is not required to
issue formal rules under section 553 of title 5, United
States Code, to implement this section or carry out the
authorities provided by this section.
(i) Effect on Other Laws.--The documents and procedures
required by this section for the preparation, advertisement,
offering, awarding, and operation of any salvage timber sale
subject to subsection (b) and any timber sale under
subsection (d) shall be deemed to satisfy the requirements of
the following applicable Federal laws (and regulations
implementing such laws):
(1) The Forest and Rangeland Renewable Resources Planning
Act of 1974 (16 U.S.C. 1600 et seq.).
(2) The Federal Land Policy and Management Act of 1976 (43
U.S.C. 1701 et seq.).
(3) The National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.).
(4) The Endangered Species Act of 1973 (16 U.S.C. 1531 et
seq.).
(5) The National Forest Management Act of 1976 (16 U.S.C.
472a et seq.).
(6) The Multiple-Use Sustained-Yield Act of 1960 (16 U.S.C.
528 et seq.).
(7) Any compact, executive agreement, convention, treaty,
and international agreement, and implementing legislation
related thereto.
(8) All other applicable Federal environmental and natural
resource laws.
(j) Expiration Date.--The authority provided by subsections
(b) and (d) shall expire on December 31, 1996. The terms and
conditions of this section shall continue in effect with
respect to salvage timber sale contracts offered under
subsection (b) and timber sale contracts offered under
subsection (d) until the completion of performance of the
contracts.
(k) Award and Release of Previously Offered and Unawarded
Timber Sale Contracts.--
(1) Award and release required.--Notwithstanding any other
provision of law, within 45 days after the date of the
enactment of this Act, the Secretary concerned shall act to
award, release, and permit to be completed in fiscal years
1995 and 1996, with no change in originally advertised terms,
volumes, and bid prices, all timber sale contracts offered or
awarded before that date in any unit of the National Forest
System or district of the Bureau of Land Management subject
to section 318 of Public Law 101-121 (103 Stat. 745). The
return of the bid bond of the high bidder shall not alter the
responsibility of the Secretary concerned to comply with this
paragraph.
(2) Threatened or endangered bird species.--No sale unit
shall be released or completed under this subsection if any
threatened or endangered bird species is known to be nesting
within the acreage that is the subject of the sale unit.
(3) Alternative offer in case of delay.--If for any reason
a sale cannot be released and completed under the terms of
this subsection within 45 days after the date of the
enactment of this Act, the Secretary concerned shall provide
the purchaser an equal volume of timber, of like kind and
value, which shall be subject to the terms of the original
contract and shall not count against current allowable sale
quantities.
(l) Effect on Plans, Policies, and Activities.--Compliance
with this section shall not require or permit any
administrative action, including revisions, amendment,
consultation, supplementation, or other action, in or for any
land management plan, standard, guideline, policy, regional
guide, or multiforest plan because of implementation or
impacts, site-specific or cumulative, or activities
authorized or required by this section, except that any such
administrative action with respect to salvage timber sales is
permitted to the extent necessary, at the sole discretion of
the Secretary concerned, to meet the salvage timber sale goal
specified in subsection (b)(1) of this section or to reflect
the effects of the salvage program. The Secretary concerned
shall not rely on salvage timber sales as the basis for
administrative action limiting other multiple use activities
nor be required to offer a particular salvage timber sale. No
project decision shall be required to be halted or delayed by
such documents or guidance, implementation, or impacts.
Now, therefore, the parties agree to:
1. Comply with previously existing environmental laws
except where expressly prohibited by Public Law 104-19,
notably in the areas of administrative appeals and judicial
review. In particular, the parties agree to implement salvage
sales under Public Law 104-19 with the same substantive
environmental protection as provided by otherwise applicable
environmental laws and in accordance with the provisions of
this MOA.
2. Achieve to the maximum extent feasible a salvage timber
sale volume level above the programmed level in accordance
with Public Law 104-19 within a framework of maintaining
forest health and ecosystem management. Adhere to the
standards and guidelines in applicable Forest Plans and Land
Use Plans and their amendments and related conservation
strategies including, but not limited to, the Western Forest
Health Initiative and those standards and guidelines adopted
as part of the President's Forest Plan for the Pacific
Northeast, PACFISH, INFISH, Red Cockaded Woodpecker Long-Term
Strategy, as well as the goals, objectives, and guidelines
contained in the NMFS biological opinion on Snake River Basin
Land Resource Management Plans (LRMPs), through the
interagency team approach agreed to in the May 31, 1995
agreement on streamlining consultation procedures. The
agencies will direct their level one and two teams to apply
to goals, objectives, and guidelines contained in the NMFS
biological opinion on the Snake River Basin LRMPs as the
teams deem appropriate to protect the anadromous fish habitat
resource.
3. Involve the public early in the process so that there is
opportunity to provide input into the development of salvage
sales, particularly in recognition of the importance of
public involvement given the prohibition to administrative
appeals contained in Public Law 104-19. Maintain and promote
collaboration with other Federal, Tribal, State and local
partners.
4. Reiterate their commitments to work together from the
beginning of the process, particularly in salvage sale
design, building on existing joint memoranda that streamline
consultation procedures under Section 7 of ESA including the
following two agreements, other applicable agreements, and
improvements thereon:
The May 31, 1995, agreement on streamlining consultation
procedures under section 7 of the ESA, between Forest Service
Regional Foresters of Regions 1, 4, 5, and 6; Bureau of Land
Management State Directors for Oregon/Washington, Idaho, and
California; Fish and Wildlife Service Regional Director; and
National Marine Fisheries Service Regional Directors.
The March 8, 1995, agreement on consultation time lines and
process streamlining for Forest Health Projects, between the
Chief of the Forest Service, Director of the Bureau of Land
Management, Director of the National Marine Fisheries
Service, and Director of the Fish and Wildlife Service.
The March 8, 1995, agreement as it applies to consultation
time lines and processes streamlining will be revised to
apply nationwide.
5. Ensure that personnel from their respective agencies
work cooperatively and professionally to implement faithfully
the objectives of Public Law 104-19 and Executive Branch
direction in a timely manner. In the event that disagreements
cannot be resolved at the regional level (Level 3) of the
process, a panel consisting of appropriate representatives of
the Forest Service, Bureau of Land Management, National
Marine Fisheries Service, Fish and Wildlife Service, and EPA,
will review the evidence and make a binding decision within
14 days of notice of the disagreement.
6. Agree to conduct project analyses and interagency
coordination consistent with NEPA and ESA (as set forth in
paragraph 4 of this MOA) in a combined joint environmental
assessment (EA) and biological evaluation (BE) called for in
Public Law 104-19, except where it is more timely to use
existing documents. There will be a scoping period, as
described in agency guidelines, during the preparation of all
salvage projects. Sales that would currently fall within a
categorical exclusion promulgated by the Forest Service or
Bureau of Land Management in their NEPA procedures will
require no documentation absent extraordinary circumstances.
For sales that the Secretary determines, in his discretion,
ordinarily should require an EA under the land management
agencies' NEPA procedures, agencies will prepare the combined
EA/BE, including a determination of affect under ESA and
circulate the analysis for 20 days of public review and
comment. For sales that the Secretary determines, in his
discretion, ordinarily should require an EIS under the land
management agencies' NEPA procedures, the combined EA/BE will
include analysis consistent with section 102(2)(c) of NEPA
and will be circulated for 30 days of public review and
comment. The decision maker will respond to substantive
comments on the EA/BE, but will not be required to
recirculate a final EA/BE.
7. Develop and use a process which will facilitate
interagency review of proposed salvage sale programs on a
regional scale, thus allowing other agencies to identify
broad-scale issues and help set priorities for allocation of
their resources.
8. Include mitigation needs identified in the environmental
assessment in timber sales design to the extent possible
within existing authority. As appropriate, funds will be used
for mitigation work not included in the timber area.
9. Measure performance of all parties' and individuals'
efforts involved in the development and implementation of
timber prepared pursuant to this MOA based upon the combined
achievement of the goals set forth in this MOA.
10. Monitor and evaluate timber sale objectives and
mitigation requirements as an integral part of salvage sales
and the salvage

[[Page H 8797]]
program as prescribed in Forest Plans, Land Use Plans and agency
direction. Public and stakeholder involvement in monitoring
and evaluation will be encouraged. There will be a national
salvage program review involving regions and States with
significant activity under this Act.
11. Recognize and use the definition of salvage timber sale
as contained in Public Law 104-19, which is a timber sale
``for which an important reason for entry includes the
removal of disease or insect-infested trees, dead, damaged,
or down trees, or trees affected by fire or imminently
susceptible to fire or insect attack.'' This definition
allows for treating associated trees or trees lacking the
characteristics of a healthy and viable ecosystems for the
purpose of ecosystem improvement or rehabilitation as long as
a viable salvage component exists. While this definition
provides necessary flexibility to meet
salvage objectives, care must be taken to avoid abuse by
including trees or areas not consistent with current
environmental laws and existing standards and guidelines
as set forth in this MOA.
This Memorandum of Agreement is intended only to improve
the internal management of the Federal Government and does
not create any right or benefit, substantive or procedural,
enforceable at law or equity by a party against the United
States, its agencies or instrumentalities, its officers or
employees, or any other person.
The undersigned Agency heads attest that they understand
the direction in this Memorandum of Agreement and will fully
comply with that direction.
James R. Lyons, Under Secretary, Natural Resources and
Environment, Department of Agriculture.
Robert P. Davison for George T. Frampton, Jr., Assistant
Secretary, Fish and Wildlife and Parks, Department of
the Interior.
Katherine W. Kimball for Douglas K. Hall, Assistant
Secretary for Oceans and Atmosphere, Department of
Commerce.
Robert L. Armstrong, Assistant Secretary for Land and
Minerals Management, Department of the Interior.
Steven A. Herman, Assistant Administrator for Enforcement
and Compliance Assurance, Environmental Protection
Agency.
Jack Ward Thomas, Chief, Forest Service, Department of
Agriculture.
John G. Rogers for Mollie Beattie, Director, Fish and
Wildlife Service, Department of the Interior.
Rolland Schmitten, Director, National Marine Fisheries
Service, Department of Commerce.
Mike Dombeck, Director, Bureau of Land Management,
Department of the Interior.
Guidance Concerning Items in the Memorandum of Agreement on Timber
Salvage Related Activities Under Public Law 104-19

Item 1. Comply with previously existing environmental laws,
except where expressly prohibited by P.L. 104-19. The Act
expressly prohibits administrative appeals (Section 2001(e),
and it limits judicial review (Section 2001(f)).
Item 2. P.L. 104-19 does not include specific volume
targets for salvage timber sales. However, it does contain
the following direction:
``During the emergency period, the Secretary concerned is
to achieve, to the maximum extent feasible, a salvage timber
sale volume level above the programmed level to reduce the
backlogged volume of salvage timber.'' (Section 2001(b))
Section 2001(c)(2) of P.L. 104-19 is a reporting
requirement. No later than August 30, 1995, the Secretary
concerned is required to report to the appropriate committees
of Congress on implementation of the salvage provisions of
the Act, and to update and resubmit the report every six
months thereafter until completion of all salvage timber
sales covered by the Act. As required by Section 2001(c)(2),
these reports will include a plan and schedule for an
enhanced salvage timber sale program by National Forest and
BLM District for fiscal years 1995, 1996, and 1997 using the
authority provided by the Act.
The teams referred to in Item 2 of the MOA are the
interagency teams established to implement the streamlined
Section 7 consultation process in northwestern states under
the Endangered Species Act, pursuant to the interagency
agreements referenced in Item 4 of the MOA. The explanation
of Item 4, below, describes the team process and its
expansion nationwide.
The reference in Item 2 to the National Marine Fisheries
Service (NMFS) biological opinion of March 1, 1995, on the
Snake River Basin Land and Resource Management Plans is made
specifically to clarify that the interagency consultation
teams in the Snake River Basin will deal with implementation
of the goals, objectives and guidelines contained in that
biological opinion as related to the anadromous fish habitat
resource.
Item 3. Due to the abbreviated time frames it is important
to have public involvement early in the process and
continuing through the review of the document developed. You
should also promote collaboration with other federal, Tribal,
State and local partners as appropriate. An interagency
communication plan is being finalized and will be sent
separately.
Item 4. Consistent with the President's direction and Items
1 and 2 of the MOA, agencies will work together to design
salvage sales so as to avoid or minimize adverse effects to
threatened or endangered species, and no salvage sale will be
offered if it would be likely to jeopardize the continued
existence of a listed or proposed species, or if it would be
likely to result in the destruction or adverse modification
of designated or proposed critical habitat. The March 8, 1995
interagency agreement signed by the heads of the FS, BLM, FWS
and NMFS provides direction for streamlining interagency
consultations under the Endangered Species Act for forest
health and salvage
timber projects on National Forest System and BLM lands in
several western states. Key elements of this streamlined
process are:
Use an interagency team approach to facilitate early input
to the NEPA process concerning species proposed or listed as
threatened or endangered, as well as proposed or designated
critical habitat, under the Endangered Species Act.
Informal or formal consultation/conferencing, if needed,
will occur concurrently with project development so that
consultation is completed within the NEPA timeframes.
The MOA states that the consultation/conferencing timelines
and processes described in the March 8 agreement will be
expanded to apply nationwide. Regional and State Office
agency leaders who are not covered by the agreements
mentioned below should meet on a regional basis as soon as
possible to implement this direction. A copy of the March 8
agreement, plus an interagency letter explaining the
streamlined process in more detail, will be sent under
separate cover to each Regional/State office not already
covered by that agreement.
The MOA provides that the agencies will build upon existing
joint memoranda, applicable agreements, and improvements
thereon that streamline the consultation/conferencing
process. This means:
The interagency agreement of April 6, 1995, between the FS
and FWS for implementing the streamlined consultation process
on National Forest System lands in Montana will continue to
apply.
The interagency agreement of May 31, 1995, among the FS,
BLM, FWS and NMFS for consultation/conferencing on actions
involving National Forest System and BLM administrative units
in Washington, Oregon, California, and portions of Idaho and
Montana, as identified in that agreement, will continue to
apply.
The April 6 and May 31 agreements can be used as examples,
but need not be duplicated by other Regions/States if a
different approach will accomplish the timelines and
streamlined process called for in the March 8 agreement. You
are expected to establish and use an interagency team process
to facilitate information flow, emphasize early input into
project design to avoid or minimize adverse effects to listed
or proposed species and designated or proposed critical
habitat, and ensure timely resolution of any disagreements
that may arise. See the descriptions for Items 5 and 6,
below, for additional clarification.
Item 5. It is imperative that the agencies work
cooperatively to implement the objectives of P.L. 104-19 and
the MOA in a timely manner. This includes promptly resolving
any disagreements that may arise.
Interagency coordination, especially early in project
planning, will be crucial to avoiding or minimizing
disagreements. It is expected that most disagreements will be
resolved by technical specialists at the field level. Any
issues which cannot be resolved will be promptly elevated to
the next
appropriate level for resolution. An interagency, tiered
process will be used for resolving disagreements,
beginning at the field level and moving up through
decision-makers until the issue is resolved. The MOA
specifies that in the event that an issue cannot be
resolved at the region/state level, a national issue
resolution panel consisting of appropriate representatives
from the FS, BLM, FWS, NMFS, and EPA, will review
information provided and make a binding decision within 14
days of a request by the interagency regional/state level.
For example, it is expected that EPA specialists will work
with the National Forest or BLM interdisciplinary planning
team for a project to quickly identify and resolve any issues
that might arise concerning compliance with the Clean Water
Act, NEPA, or other environmental laws involving EPA input.
If an issue cannot be resolved at this level, it will be
promptly elevated to the Forest Supervisor or District
Manager and the appropriate EPA counterpart for joint
resolution. If they are unable to agree, they would jointly
elevate the issue to the Regional Forester or State Director
and the EPA Regional Administrator for resolution. In the
effort to reach agreement, it is expected that the ``line
officers'' will seek input from regional/state technical
specialists concerning the particular issue. The national
issue resolution panel will address an issue if it cannot be
resolved at the regional/state level.
The April 6 and May 31, 1995, interagency agreements on
streamling consultations for Forest Service and BLM projects
in northwest states establish tiers of interagnecy teams to
coordinate on projects and resolve issues involving the
Endangered Species Act. These existing teams and the issue
resolution process will continue to apply. If a regional/
state team cannot resolve an issue, the team will elevate it
to the national issue resolution panel. Although the existing
team process in the northwestern states was formed to deal
with consultation issues, it is expected that the ``Level 2''
and higher teams established through the April 6 and

[[Page H 8798]]
May 31, 1995 agreements will work with EPA to resolve issues that do
not involve Endangered Species Act implementation and cannot
be resolved at the Interdisciplinary team level.
Item 6. The action agency is responsible for completing the
combined environmental assessment (EA) and biological
evaluation (BE) for each salvage timber sale, as required by
Section 2001(c)(1) of P.L. 104-19. The combined EA/BE will
indicate that the project is being carried out under a
different authority than a normal salvage sale. The only
exception to preparing a combined EA/BE will be for those
situations in which using existing documents will be more
timely (e.g. an EIS is almost final).
The MOA provides clarification regarding scoping and other
public involvement. Public and agency comments received on
the combined EA/Be will be evaluated and a response to
substantive comments will be provided in an appendix to the
EA/BE. The decision document will reflect the public and
agency input as appropriate.
The normal agency procedure for documenting a decision
(e.g. preparation of a Decision Notice by the Forest Service
and a Record of Decision for the Bureau of Land Management)
will be used and the public will be informed of the decision
following normal agency procedures. The decision document
will include:
A statement explaining that pursuant to Subsection 2001(e),
the salvage sale is not subject to administrative review.
A statement indicating that under the provisions of
Subsection 2001(i) of P.L. 104-19, the documents and
procedures required for preparation, advertisement, offering,
awarding, and operation of the salvage timber sale are deemed
to satisfy the requirements of applicable environmental laws
as listed in 2001(i).
An explanation of the expedited judicial review process
provided for in Subsection 2001(f) of P.L. 104-19.
All anticipated environmental effects and mitigation and
monitoring requirements will be disclosed in the EA. This
includes an analysis of effects on listed, proposed and
sensitive species, and proposed or designated critical
habitat, for all alternatives analyzed. The EA/BE should be
no longer than necessary to adequately address the issues. A
Finding of No Significant Impact (FONSI) will not be
required.
To implement the MOA direction for interagency coordination
and compliance with the Endangered Species Act, all of the
required elements of a biological assessment (BA), as
described in 50 CFR Part 402, must be included in the
appropriate section of the combined EA/BE for the preferred
or selected alternative. These elements can be included in
appropriate sections of the EA/BE or can be attached as a
separate section. For the purposes of Public Law 104-14, the
BE shall meet the requirements of a BA. The action agency and
the consulting agency will mutually agree on the BE prior to
the EA/BE being issued for public comment.
If the project is determined to have no effect on listed or
proposed species or designated or proposed critical habitat,
consultation or conferencing is not required and the EA/BE
should so indicate.
If the interagency consultation team agrees with the
determination that the project may affect but is not likely
to adversely affect listed species, or is not likely to
result in destruction or adverse modification of designated
or proposed critical habitat, informal consultation will
occur using the streamlined process per Item 4 of the MOA.
The letter of concurrence from the consulting agency will be
discussed and incorporated by reference in the decision
document for the project.
If the project is determined to be likely to adversely
affect listed species, or likely to jeopardize a species
proposed for listing, or likely to result in destruction or
adverse modification of designated or proposed critical
habitat, the consulting agency will provide a biological
opinion or conference report using the streamlined
consultation process. The results of the biological opinion
or conference report will be discussed and incorporated by
reference in the decision document.
To summarize the process:
1. Scoping and interdisciplinary and interagency teams will
determine the issues to be addressed in the combined EA/BE.
2. The completed EA/BE will be sent to the public for
review. The action agency and the consulting agency will
mutually agree on the BE prior to the EA/BE being issued for
public comment.
3. Public comment received will be analyzed and the
response documented in an appendix to the EA/BE prior to
completion of the decision document.
4. The decision document will reflect public input as
appropriate. In those instances when a letter of concurrence,
a biological opinion, or a conference report is needed from a
consulting agency, it will be discussed and incorporated by
reference in the decision document.
Item 7. Region/State agency heads will work together to
develop a process to facilitate interagency review of the
proposed salvage sale program on a regional or state scale,
as appropriate. This process will provide an opportunity for
identification of broad issues. It should include an
understanding of priorities in relation to projects other
than salvage timber sales (e.g. grazing permits, green timber
sales) which involve interagency action. This is intended to
allow interagency coordination to occur on highest priorities
first and to facilitate allocations of staff and time
accordingly.
Item 8. Self-explanatory
Item 9. Self-explanatory
Item 10. In addition to the requirements of the Act, it is
important for us to monitor our actions to ensure ourselves
and the public that we are carrying out the salvage program
in an environentally sound manner and that the requirements
identified in the decision document are being met. Monitoring
guidance has been developed for your use (see Enclosure 5).
Item 11. Self-explanatory
monitoring

In addition to the requirements of P.L. 104-19, it is
important for us to monitor our actions to assure ourselves
and the public that we are doing the right things for the
right reasons, that we are doing what we said we would do,
and that the effects are what we predicted. Below are some
thoughts and actions that each Forest Service Region/BLM
State should consider in developing a monitoring plan that is
responsive to your sales and situation.
Public Trust and Involvement
There will be lots of scrutiny and interest;
We need to build trust and credibility;
Do the right thing for the right reason;
If we say we will do it, do it;
Involve other Agencies, states, Tribes, the public and
interest groups.
Key Agency Messages
Monitoring and Evaluation are key and vital aspects in
implementing a successful stewardship salvage program.
Monitoring and Evaluation are central to an adaptive
management approach which is a cornerstone for ecosystem
management.
Existing Direction
There is existing direction on monitoring in the agencies
directive system which identify and explain the three types
of monitoring and requirements for monitoring.
Follow Standards and Guidelines in existing Forest Plans
and Resource Management Plans, as amended, and including any
biological opinions issued on such plans or amendments.
Other Considerations
A key for success is monitoring what is appropriate and
feasible, not the world. Monitoring programs must be designed
to address specific questions, and clearly identify who is
responsible for implementation.
Monitoring should be hierarchical: every project will have
implementation monitoring;
Forests and BLM Districts will develop a well designed
sampling scheme for effectiveness monitoring;
Observation and documentation by anyone in the sale area is
helpful for implementing the monitoring. A key person will be
the Sale Administrator who will likely be the first to
observe problems.
Any problems should be immediately documented, activities
suspended (if needed) and appropriate changes made to the
sale contract.
Monitor and document successes as well as problems and
areas needing improvement.
There must be a clear focus on oversight and
accountability.
Line Officers will be held accountable.
Regions/BLM States and Forests/BLM Districts should
schedule project reviews to sample the activities of salvage
sales and their effects; encourage public involvement.
The WO will conduct salvage program reviews of every
Region/BLM State having significant activity under P.L. 104-
19.
Congress of the United States,

House of Representatives,

Washington, DC, June 30, 1995.
Hon. Dan Glickman,
Secretary, Department of Agriculture,
Washington, DC.
Dear Dan: We are gratified that leaders in the House of
Representatives and Administration representatives worked out
the remaining concerns regarding HR 1944 and are pleased with
the bill's solid passage by the House. We are writing to
follow up on the letter you sent the Speaker last night
regarding the Forest Service salvage sale program.
Both of us spoke with Assistant Secretary Jim Lyons and
received the commitment of your Department and the Forest
Service to offer a minimum of 4.5 billion board feet of
salvage timber during the emergency period, which begins on
the date of enactment and expires December 31, 1996. Any
personnel resources needed to get the added volume are
provided in Section 2001 by granting the Forest Service
additional contracting authority and lifting restrictions
that could impede the Service's ability to hire adequate
personnel. As opportunities arise for more salvage volume,
you can utilize the expanded authority to increase
expectations.
If you move quickly to implement this new salvage timber
policy, there is no reason the 4.5 billion board foot target
could not be met. The President has stated that the
Administration will carry out this program with its full
resources and a strong commitment to achieving the goals of
the program. We urge you to utilize the flexibility we have
provided to produce the maximum feasible salvage timber
volume available in our national forests.
As you know, included in the emergency timber sale program
is a requirement for you to report on the Department's
progress in implementing the new policy. We look forward to
your first progress report and working together to achieve
the timber salvage

[[Page H 8799]]
objectives of the program set forth under HR 1944.
Sincerely,
Charles H. Taylor,
Member of Congress.
Norm D. Dicks,
Member of Congress.
U.S. Department of Agriculture,

Natural Resources & Environment

U.S. Department of the Interior,

Land and Minerals Management

August 22, 1995.

[Memorandum]

To: Jack Ward Thomas, Chief, Forest Service; and Elaine
Zielinski, Oregon State Director, Bureau of Land
Management.
From: -- --. for James R. Lyons, Under Secretary of
Agriculture, Natural Resources and Environment; and -- --
. for Mike Dornbeck, Director, Bureau of Land Management.
Subject: Section 2001(k) of the 1995 Rescission Act.
Section 2001(k) of the 1995 Rescissions Act (Public Law
101-121) directs the Secretaries to award, release, and
permit to be completed the remaining section 318 timber
sales. Several parties have urged us to interpret section
2001(k) as applying to all timber contracts offered in the
geographic area described in section 318 of the Fiscal Year
1990 Interior and Related Agencies Appropriations Act, in
addition to the few remaining timber sales that were offered
subject to section 318. The language of section 2001(k) is
clear on its face, and applies only to the remaining section
318 timber sales.
The section 318 sales have a turbulent history, having been
fiercely debated by Congress, by the press, by public
advisory boards, and before the Supreme Court. It is this
well-known and discrete set of sales, the sales offered in
Fiscal Year 1990 under the procedures establishes in section
318(b)-(j) of Public Law 101-121, which Congress refers to in
section 2001(k) of the 1995 Rescissions Act as ``subject to
section 318.''
We have been involved in the debate over the federal
forests in the Pacific Northwest for a long time, as have
members of Congress. Our understanding of the section 2001(k)
release of timber sales ``subject to section 318'' is
informed by that experience. Unlike timber sales before or
after, the section 318 sales were developed based on specific
ecological criteria developed by Congress and were provided
limited judicial review. The Supreme Court approved section
318's limitation of judicial review, and about 4 billion
board feet of timber was sold subject to section 318. The
award or release of the few remaining 318 sales, totaling
approximately 300 million board feet, has been delayed due to
litigation, consultation based on the listing of the marbled
murreiet, and other events. Congress used section 318 as its
model in drafting section 2001 of the 1995 Rescission Act,
and included the provisions of section 2001(k) to require
resolution of the few remaining section 318 sales.
The Executive Branch, particularly the Forest Service, was
involved in all stages of the development of section 2001,
providing technical information and, later, in the
negotiation of changes to provisions that concerned the
Administration. It was the remaining section 318 sales that
the Administration viewed as being affected by section
2001(k) at the time the bill was signed by the President. It
was the remaining section 318 sales that were the basis of
the April 27, 1995, Forest Service effects statement on the
proposed legislation that was transmitted to Congress and was
then used by members of Congress in their floor statements
and debates. The specific sale contracts that section 201(k)
addresses are only the sales offered under the unique
procedures of section 318(b)-(j). The interpretation of
section 2001(k) as applying to timber sales throughout
Washington and Oregon, and to timber sales that were not
developed subject to the ecological and procedural criteria
provided in section 318(b)-(j), is wholly inconsistent with
the history of the section 318 sales issue.
In the 1995 Rescission Act, Congress seeks to end the
delays in the remaining section 318 sales and to expedite
implementation of the President's Northwest Forest Plan which
was designed with the section 318 sale program in mind. We
must read the law in a manner that makes sense of the entire
Act, including direction to expeditiously implement the
President's Northwest Forest Plan, and in a manner that
avoids reading section 2001(k) so expansively as to generate
windfall profits at the expense of the public and the
environment. We must faithfully implement the law as enacted
by Congress while acting with full consideration for the
environmental significance of the remaining section 318
timber sales and the fact that section 2001 reduces the usual
public policy protections that would otherwise guide our
implementation. For these reasons, any ambiguities in the
language of section 2001(k) is intended to apply only to
those remaining timber sales developed and offered subject to
section 318(b)-(j) of the Fiscal Year 1990 Interior and
Related Agencies Appropriations Act, as directly addressed in
section 2001(k)(1).
U.S. Department of Agriculture,

Natural Resources & Environment

U.S. Department of the Interior,

Land and Minerals Management

August 23, 1995.

[Memorandum]

To: Jack Ward Thomas, Chief, Forest Service; and Elaine
Zielinski, Oregon State Director, Bureau of Land
Management.
From: -- --. for James R. Lyons, Under Secretary of
Agriculture, Natural Resources and Environment; and -- --
. for Mike Dombeck, Acting Director, Bureau of Land
Management.
Subject: Additional Direction on Section 2001(k) of the 1995
Rescission Act.
Yesterday we issued direction relating to section 318 sales
which are affected by section 2001(k)(l) of the 1995
Rescission Act (P.L. 104-19). The purpose of this memorandum
is to set forth the administration's interpretation of the
other subsections of 2001(k).
As we stated yesterday, ``We must read the law in a manner
that makes sense of the entire Act, including direction to
expeditiously implement the President's Northwest Forest
Plan, and in a manner that avoids reading section 2001(k) so
expansively as to generate windfall profits at the expense of
the public and the environment.'' In support of these
principles, we will act to award, release, and permit to be
completed, subject to the exclusionary provisions of 2001(k),
all remaining section 318 timber sale contracts which are
currently being delayed. Those sales are:
1. Sales for which apparent high bidders have been
identified, but the sales have not yet been awarded to the
high bidder, except that these sales will contain all
previously mutually agreed upon changes to the original
terms;
2. Sales for which apparent high bidders have been
identified and the sale awarded, but where the contract has
not yet been executed by the high bidder, except that these
sales will contain all previously mutually agreed upon
changes to the original terms;
3. Sales for which the apparent high bidder has been
identified, but the bid bond was returned before award of the
contract.
Sales which have been awarded and executed will not be
modified or altered to the originally advertised terms,
volumes, and bid prices.
Section 2001(k)(2) provides that sales subject to section
2001(k)(1) shall not be released or completed ``if any
threatened or endangered bird species is known to be
nesting'' within the sale unit. Although the phrase
``threatened or endangered bird species'' certainly includes
northern spotted owls, Congress' primary attention was
focused on the impact of the remaining Section 318 sales on
the marbled murrelet. This direction will outline the
criteria used to determine whether any marbled murrelets are
``known to be nesting'' within the remaining section 318 sale
units that are subject to section 2001(k).
Congress did not define the phrase '`any threatened or
endangered bird species is known to be nesting.'' Therefore,
the implementing agencies must interpret this phrase in
accordance with general principles of law. In interpreting
this phrase, we choose to be guided by the best scientific
information available. We have consulted with agency experts
and they have provided us with the following information. The
marbled murrelet is a rapidly-disappearing sea bird that uses
old-growth forest areas only for nesting and breeding, or for
activities that are in support of nesting and breeding. The
remainder of its life is spent on the ocean. Murrelets are
believed to have a high nesting site fidelity, that is, adult
murrelets return to the same tree stands year after year to
nest. Therefore, if a stand of forest that murrelets use for
nesting is cut, they probably will not continue to reproduce.
Murrelets do not construct typical bird nests (they lay their
eggs on broad branches of older trees or in trees with
deformations) and they hide from predators during nesting,
which makes detection of nesting activity difficult. Indeed,
the first marbled murrelet nest was not discovered until
1974, and there are very few identified nests to this day.
The consequence of adopting an interpretation of ``known to
be nesting'' that requires ``physical'' detection of nesting
activity is potentially quite dire for the entire marbled
murrelet population and for related conservation efforts,
including the President's Forest Plan. The remaining Forest
Service Section 318 sales encompass ten to twenty percent of
the known nesting sites for the marbled murrelet.
We believe that there is a more rational interpretation of
the phrase '`known to be nesting'' that is based upon the
best scientific information available about the murrelets.
Because of its highly secretive behavior and lack of typical
nesting behavior, our agency experts inform us that actual
detection of a nest is not the only, or the exclusive,
reliable indicator of nesting. The Pacific Seabird Group--a
group composed of federal, state, private and academic
biologists--
developed a reliable scientific protocol for determining the
existence of murrelet nesting activities. This protocol is
designed to determine more than mere ``presence'' of
murrelets. Surveys based on this protocol provide the best
scientifically valid information, available within the 45
days provided by Congress, on whether murrelets are known
to be nesting in these units. Based on the protocol's
scientific analysis, we conclude that the protocol's
criteria should be utilized in evaluating whether Section
318 sales are subject to section 2001(k)(2).
Application of the protocol's criteria to determine whether
murrelets are ``known to be nesting'' in a particular area is
the way to provide for meaningful implementation of
subsection 2001(k)(2) given the needs of this species. Again,
agency experts inform us that murrelets do not ``nest'' or
``reside,'' that is, nest or breed, in a way that permits of
typical nest detection, yet their nesting

[[Page H 8800]]
and breeding behavior is just as critically dependent on availability
of nesting habitat as any other species. In order to comply
with the directive to withhold sales where the murrelet is
nesting, the scientifically valid approach is to utilize the
criteria in the protocol. There simply is no other practical
or biologically justifiable method for identifying murrelet
nesting, or for insuring that our actions will not be likely
to jeopardize the continued existence of the murrelet.
We are informed that within the 45 days allowed by
Congress, the Forest Service is completing a second year of
surveys for murrelets. Sale purchasers are being provided
with the survey data sheets and asked for their comments. As
an example of how the process has been used on a particular
forest, purchasers questioned the validity of 12 of the units
in the Siuslaw National Forest. Forest Services biologists
reviewed all applicant comments, conducted additional surveys
of 4 of the sales and determined that the data was sufficient
for another 4 sales. A purchaser hired a surveyor for the
remaining 4 sales, which confirmed the Forest Service's
findings. Additionally, government agencies are reviewing all
surveys data, verifying all ``questionable'' determinations
and continue to confirm the strength of all survey
determinations.
In subsection 2001(k)(3), Congress included a provision for
alternative timber for the remaining Section 318 sales that
are not released within the 45-day timeframe specified in
Subsection (k)(l). This provision applies to any sale which
``for any reason'' cannot be released within the 45-day
period. This provision is therefore applicable to sales or
units of sales that are not released under Subsection (k)(2).
In accordance with the standards and guidelines for the
President's Northwest Plan, and within the limits of
available personnel and appropriated funds, we will assess
the availability of alternative volume.
The White House,

Washington, DC, June 29, 1995.
Hon. Newt Gingrich,
Speaker of the House of Representatives,
Washington, DC.
Dear Mr. Speaker: I am pleased to be able to address myself
to the question of the Emergency Salvage Timber Sale Program
in H.R. 1944. I want to make it clear that my Administration
will carry out this program with its full resources and a
strong commitment to achieving the goals of the program.
I do appreciate the changes that the Congress has made to
provide the Administration with the flexibility and authority
to carry this program out in a manner that conforms to our
existing environmental laws and standards. These changes are
also important to preserve our ability to implement the
current forest plans and their standards and to protect other
natural resources.
The agencies responsible for this program will, under my
direction, carry the program out to achieve the timber sales
volume goals in the legislation to the fullest possible
extent. The financial resources to do that are already
available through the timber salvage sale fund.
I would hope that by working together we could achieve a
full array of forest health, timber salvage and environmental
objectives appropriate for such a program.
Sincerely,
Bill Clinton.
The White House,

Washington, DC, August 1, 1995.

[Memorandum]

For: The Secretary of Interior, The Secretary of Agriculture,
The Secretary of Commerce, and The Administrator,
Environmental Protection Agency.
Subject: Implementing Timber-Related Provisions to Public Law
104-19.
On July 27th, I signed the rescission bill (Public Law 104-
19), which provides much-needed supplemental funds for
disaster relief and other programs. It also makes necessary
cuts in spending, important to the overall budget plan, while
protecting key investments in education and training, the
environment, and other priorities.
While I am pleased that we were able to work with the
Congress to produce this piece of legislation, I do not
support every provision, most particularly the provision
concerning timber salvage. In fact, I am concerned that the
timber salvage provisions may even lead to litigation that
could slow down our forest management program. Nonetheless,
changes made prior to enactment of Public Law 104-19 preserve
our ability to implement the current forest plans' standards
and guidelines, and provides sufficient discretion for the
Administration to protect other resources such as clean water
and fisheries.
With these changes, I intend to carry out the objectives of
the relevant timber-related activities authorized by Public
Law 104-19. I am also firmly committed to doing so in ways
that, to the maximum extent allowed, follow our current
environmental laws and programs. Public Law 104-19 gives us
the discretion to apply current environmental standards to
the timber salvage program, and we will do so. With this in
mind, I am directing each of you, and the heads of other
appropriate agencies, to move forward expeditiously to
implement these timber-related provisions in an
environmentally sound manner, in accordance with my Pacific
Northwest Forest Plan, other existing forest and land
management policies and plans, and existing environmental
laws, except those procedural actions expressly prohibited by
Public Law 104-19.
I am optimistic that our actions will be effective, in
large part, due to the progress the agencies have already
made to accelerate dramatically the process for complying
with our existing legal responsibilities to protect the
environment. To ensure this effective coordination, I am
directing that you enter into a Memorandum of Agreement by
August 7, 1995, to make explicit the new streamlining
procedures, coordination, and consultation actions that I
have previously directed you to develop and that you have
implemented under existing environmental laws. I expect that
you will continue to adhere to these procedures and actions
as we fulfill the objectives of Public Law 104-19.
William J. Clinton.

The SPEAKER pro tempore (Mr. Metcalf). The Chair would like to thank
the gentlewoman from Idaho [Mrs. Chenoweth] for one of the great
speeches from the House of Representatives.

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