[Congressional Record Volume 142, Number 28 (Tuesday, March 5, 1996)]
[Senate]
[Pages S1524-S1526]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mrs. MURRAY (for herself, Mr. Leahy, Mr. Baucus, Mr. Bumpers, 
        and Mrs. Feinstein):
  S. 1590. A bill to repeal the emergency salvage timber sale program, 
and for other purposes; to the Committee on Energy and Natural 
Resources.


         the public participation in timber salvage act of 1996

  Mrs. MURRAY. Mr. President, I rise today to introduce legislation to 
correct serious problems with a law passed by this Congress at the 
beginning of last year. This law was intended to bypass environmental 
safeguards to speed up tree harvesting in national forests.
  Mr. President, this law, commonly known as the salvage rider, has not 
worked. Instead, it has reopened old wounds in the Pacific Northwest, 
and sparked major controversy throughout the region. It has once again 
cast political uncertainty over working families, and blatantly cut 
regular people out of decisions over their own forests.
  In short, what was billed as a commonsense approach to removing dead 
trees has turned out to be another case of legislative overkill on the 
environment.
  Mr. President, it doesn't have to be this way. My bill will defuse a 
tense situation, provide certainty for workers, and restore a role for 
the public in forest management. Let me explain how.
  The salvage rider has three problems: It allows large, old-growth 
timber sales previously declared illegal to be harvested without regard 
to fish and wildlife concerns; it could relegate the Northwest forest 
plan to the trash heap; and it cuts the public completely out of any 
final decision to harvest trees in national forests.
  First, my bill resolves the old-growth issue by suspending timber 
sales commonly referred to as section 318 sales, and requiring the 
Forest Service to provide substitute timber volume or buy these sales 
back from the purchaser. In either case, the purchaser is held 
harmless, and so are the sensitive old-growth areas.
  Second, my bill expedites implementation of the Northwest forest plan 
by making sure resources are available to complete recommended 
watershed analyses. The primary goal of this provision is to protect 
the scientific validity of option 9, so that timber sales can move 
ahead and private land owners can proceed with their habitat 
conservation plans.
  This is a very important point: The State of Washington and every 
major timber land owner in the region are working on comprehensive 
habitat conservation plans. Every single one of these groups assume 
full implementation of option 9 as the basis of fish and wildlife 
protection in their own plans. If option 9 goes belly up, all of these 
habitat plans are worthless.
  Third, my bill establishes a permanent, reasonable salvage program. 
The key work is permanent. I propose moving away from ad hoc forest 
planning by Congress, switching gears with every swing of the political 
pendulum. Instead, we should put a long-term program in place, 
something everyone can plan around, year in and year out.

  Let me be very clear: This is not about salvage logging; this is 
about public input and accountability. Salvage logging is appropriate--
and sometimes necessary--is done right. My bill sets up a program that 
allows the agencies to target salvage logging on an expedited basis 
when needed, under the full scrutiny of the public eye. If the agencies 
can defend their proposals, then they will go forward unimpeded.
  Mr. President, I remember what it was like last spring. There was a 
new feeling in Congress; the people had called for change, so the 
leadership was running through bills left and right in the heat of the 
moment. A lot of things passed that might not have stood up under 
closer scrutiny, and this was one of them.
  The irony here is thick: The salvage rider gave the Federal 
Government more power, and less accountability. As a result, the public 
has no say in how their own national forests are managed. I don't think 
the people wanted that kind of change.
  People say this issue is too controversial to resolve, and that over 
the years it has become too polarized. To watch the debate, you might 
think that's true. Any person's idea is immediately rejected by someone 
else. And that may be the case with my bill. But if we keep rejecting 
everything, we will be left with nothing, except more chaos.
  With all the controversy, people ask me, ``why bother?'' I'll tell 
you why: Because I care deeply about the Northwest. I care deeply about 
what government is saying to people about tough issues; more often than 
not, we're telling people that someone, somewhere, has to lose. That's 
not what I'm about. Most of all, I care deeply about the kind of legacy 
we're leaving for our children in this world.
  We simply cannot continue the way of divide and conquer.
  There are several ideas out there about how to proceed on this issue, 
from doing nothing at all, to repealing the salvage rider outright. My 
bill cuts a middle path. It says to workers: Salvage logging is 
something we should always be able to do. It says to conservationists: 
You will have an opportunity to hold the administration to its word. It 
says to large landowners: Your habitat planning efforts will pay off.
  In my view, people ought to be willing to settle for this as a 
responsible approach.
  Mr. President, I intend to pursue this matter on the continuing 
resolution when it comes before the full Senate. It is my understanding 
that the CR will contain limited language on this issue, but I do not 
believe it will solve the problem. I look forward to working with my 
colleagues.
  Mr. President, I would also like to explain further some of the 
concepts contained in this bill.


      replacement volume for section 2001(k) Sales, Section 102(b)

  The Secretary and contract holder/sale purchaser should immediately 
begin negotiations to locate alternative volume agreeable to both 
parties. Because these purchasers have owned these contracts for half a 
decade, the Secretary should make every effort to find and plan 
environmentally sound timber sales or modifications of the existing 
sale. The Secretary should direct agency personnel to make substitute 
volume a priority.
  New sales or modifications of existing sales must comply with all 
applicable law, forest and regional plans, and standards and 
guidelines. Specifically, they must comply with the Northwest forest 
plan and, when developed, the plan--or plans--implementing the Interior 
Columbia Basin ecosystem management project. Furthermore, they must 
comply with Forest Service and BLM standards and guidelines, including 
PACFISH, INFISH, and Eastside screens.


                   bidding rights, section 102(c)(2)

  This bill contains provisions allowing for purchasers holding timber 
sale contracts for sales that do not comply with environmental or 
natural resource laws to exchange the value of those contracts for 
bidding credits. Such a concept has operated for mineral rights in at 
least two other natural resource laws--see Public Law 97-466, 96 Stat. 
2540; and Public Law 96-401, 94 Stat. 1702.
  This bill authorizes monetary credits based on the negotiated value 
of the purchaser's timber sale contract. The bidding credits extend to 
the purchaser and his or her successors and assigns to use in whole or 
part payment for future timber sales on Forest Service sales where the 
credits originated therefrom or on Bureau of Land Management sales, 
where the credits originated therefrom.


        salvage sales initiated under the rider, section 103(a)

  Sales initiated under section 2001 (b) or (d) are all those begun 
since passage of the Emergency Timber Salvage Act, on July 27, 1995. 
Title III of this bill applies to sales where its provisions are 
timely. For example, if a sale has been advertised, this law does not 
require the agency to host an interdisciplinary team meeting with 
public participation. All sales that have not been awarded are subject 
to appeal under the provision of title III.

[[Page S1525]]

            appeal of awarded salvage sales, section 103(b)

  In section 103(b), I address sales that have been awarded to timber 
sale purchasers under the salvage and Northwest forest plan provisions 
of the rescissions bill. I give the public an opportunity to appeal 
immediately and thereby suspend sales that are causing environmental 
damage. The administration insists that it is complying with all 
environmental laws, and I want to give the public an opportunity to 
prove that is the case.
  However, the agencies were required by the law at the time these 
sales were awarded--section 2001 of Public Law 104-19--to take 
procedural short cuts. I do not believe the purchasers should be denied 
their contract rights while the public challenges the agencies for 
obeying the law's procedural timelines. On the other hand, I do not 
want any sales that cause environmental harm to go forward. Thus, I try 
to strike a balance between these competing needs by limiting appeals 
to substantive complaints.
  I understand that often substantive claims are raised in the context 
of procedural laws, such as the National Environmental Policy Act. Some 
courts have suggested that NEPA is a purely procedural statute. The 
term ``procedural'' in this bill is not meant to eliminate claims 
regarding environmental harm, even if they could be characterized as a 
purely procedural challenge. Let me give some examples.
  Where an agency had documentation in which a biologist recommended a 
sale not go forward, but the agency allowed the sale to be awarded to a 
purchaser, then such documentation could be the basis for an appeal and 
would not be considered a procedural challenge. Another example would 
be where the agency went forward with a sale prior to obtaining the 
concurrence from the National Marine Fisheries Service or the U.S. Fish 
and Wildlife Service regarding whether an activity will or will not 
jeopardize a species under the Endangered Species Act. This should not 
be characterized as a procedural challenge. A final example would be 
that section 2001 of Public Law 109-14 required the agencies to, in 
their discretion, file only environmental assessments, not 
environmental impact statements. Because both EA's and EIS's should 
disclose the effects of a sale on the environment, a challenge could 
not be made simply because the agency published such information in an 
EA, rather than an EIS. However, if the documentation, no matter what 
its title, failed to disclose the effects on the environment, it would 
be open to challenge.


              Funding to Implement Title III, Section 304

  In this bill, the agencies are given discretion at the forest 
supervisor's and district manager's levels to combine several funds and 
accounts to implement this bill. The intent is to provide adequate 
funds for such activities as salvage timber sales, stewardship 
programs, watershed restoration, including road decommission, and data 
inventory and collection. This fund may not be used to carry out any 
activities that violate the forest plans, agency standards and 
guidelines, or the intent of this bill. This flexibility of funding 
will allow the agency to address critical salvage situations, correct 
an apparent agencywide problem with inadequate inventory of forest 
resources, and address a backlog of stewardship and restoration 
projects.


           Pilot Program for Harvest Contracting, Section 306

  The legislation authorizes a pilot program to change the way salvage 
timber sales are undertaken on Forest Service and BLM lands. The Forest 
Service currently sells timber by planning and preparing the sale, 
offering the sale to bidders, and administering the timber harvest. 
Harvest contracting or stewardship contracting is an alternative to the 
current method, entailing a two-step process: A timber harvest contract 
or contracts to cut and remove wood, and log sales from the collected 
and sorted wood.
  There are several advantages to harvest contracting, including 
allowing the agencies to better implement ecosystem management, 
providing an opportunity to improve tree health without a large 
component of merchandise timber, eliminating below-cost timber sales, 
and reducing timber theft.
  Specifically, harvest contracting would improve ecosystem management 
by basing contracts on the work performed and the resulting conditions 
of the forest. This would eliminate incentives for purchasers to 
inappropriately harvest large, lucrative trees. This pilot project 
encourages harvest so smaller, less valuable trees that have 
proliferated in many years of the West due to fire suppression and 
historic timber practices, such as highgrading. These young, dense 
stands are expensive to harvest, but many scientists believe it is 
important to remove them in order to restore health to timber stands.
  The primary financial benefit is that gross timber sale revenues 
would be substantially higher because purchasers would not have road 
construction or logging costs--they would simply buy the wood from the 
log yard. Because the agencies may not be as efficient as a private 
enterprise, the agencies should consider contracting the log marketing 
business to a private business.
  A secondary financial benefit would be the elimination of many 
opportunities for timber sale fraud and theft. Under harvest 
contracting, the scaling system would be eliminated and the contractor 
would not benefit from cutting trees designated to be left standing 
because of the fixed contract price and, in fact, might be penalized 
for not performing to contract specifications. That is why the bill 
contains a provision limiting the ability of the contractor who 
performs the contract from also selling the harvested wood.
  Finally, this pilot project should benefit timber workers in several 
ways. First, salvage timber sales or thinning sales that were 
previously uneconomical to harvest would be offered, providing jobs for 
loggers and other resource experts. Second, timber companies would be 
purchasing wood after seeing its quality and knowing the exact board 
footage, rather than hypothesizing about the quantity of wood contained 
in a standing timber sale and not knowing how weather or timber markets 
might affect the ability to harvest or make a profit from the wood. 
Third, companies would not be subject to changes or delays in ability 
to harvest based on legal or political changes as they held long-term 
timber sale contracts; they would simply purchase wood.

  While harvest contracting appears to offer many benefits from many 
different aspects, it remains untested on a large scale. This bill 
requires the Forest Service and BLM to establish pilot programs. This 
should provide guidance as to the feasibility, benefits, and drawbacks 
of the concept.
  In addition, Senator Max Baucus has introduced a bill, S. 1259, that 
also establishes a demonstration program to use stewardship 
contracting. The concepts contained in this bill were developed by a 
group of conservationists, forest product industry representatives, and 
community leaders. This should also offer guidance as how to implement 
this pilot program.


                   Forest Timber Stand Study Title IV

  The Forest Service has initiated a similar study to that required in 
this bill. The Western Forest Health Initiative should be used as a 
foundation for the requirements of this bill. There is no need for the 
agencies to be duplicative, rather this bill's provisions should be 
supplemental to the work done in the WFHI.


                      Collaborative Decisionmaking

  Early drafts of this bill included use of collaborative 
decisionmaking. The concept was dropped from the bill because it was 
too difficult to described in legislative language. However, this 
decisionmaking process was very effective when it was used to plan and 
develop timber salvage sales after the wildfires of 1994 on the 
Wenatchee National Forest. The process was developed by Steve Daniels 
and Gregg Walker, of Oregon State University, as a tool to support 
ecosystem-based management of forest.
  Collaborative learning is a framework designed for natural resource 
management situations that have the following features: Multiple 
parties and issues, deeply held values and cultural difference, 
scientific and technical uncertainty, and legal and jurisdictional 
constraints. The key notions that define collaborative learning are: 
Redefining the task away from solving a problem to one of improving a 
situation; viewing the situation as a set of interrelated systems; 
defining improvement as desirable and feasible change;

[[Page S1526]]

recognizing that considerable learning about science, issues and value 
differences--will have to occur before implementable improvements are 
possible; and promoting working through the issues and perspectives of 
the situation.
  Because of its success on the Wenatchee National Forest, I recommend 
the agencies consider use of collaborative decisionmaking procedures to 
increase valuable and productive participation by various interest 
parties.
                                 ______