[Congressional Record Volume 148, Number 119 (Thursday, September 19, 2002)]
[Senate]
[Pages S8894-S8897]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           FOREST MANAGEMENT

  Mrs. FEINSTEIN. Madam President, for some time now, Senator Wyden and 
I have been working together to try to put forward a compromise 
amendment on two amendments which are on the Interior appropriations 
bill. One amendment is by Senator Bingaman; the other by Senator Craig.
  At present, both amendments need 60 votes. Neither amendment has 60 
votes. Both amendments deal with a very real emergency in American 
forests today. It would be a tragedy if we could not use this 
appropriations bill as an opportunity to move a plan forward to do

[[Page S8895]]

the emergency work we need to do to protect our people, our property, 
our forests, and our endangered species from the risk of catastrophic 
fire.
  Right now, 190 million acres of public lands are at high risk of 
catastrophic fire. That is 190 million acres, and 73 million of these 
are in the highest fire risk category, called class III. Of that class 
III, 23 million acres have been designated by both the Forest Service 
and the Department of Interior as in vital need of emergency treatment. 
Those are the strategic areas that need hazardous fuels taken out of 
the forests to avoid catastrophic fire.
  Today in America, moderate to severe drought covers 45 percent of the 
Continental United States. It is predicted that El Nino is returning, 
which means we can expect volatile weather patterns, more pronounced 
rainfall, more pronounced drought. All of this will only exacerbate the 
risk of catastrophic fire.
  It is estimated that this is the third hottest summer on record in 
the United States. To this fact, we are adding that 2002 looks as if it 
is going to turn out to be the worst fire season on record in the 
United States.
  This year, 6 million acres of land has burned. That includes nearly a 
half a million acres in California, and because we have an Indian 
summer, we are not out of the forest fire season yet.
  More property will be lost, more vital habitat for endangered species 
will be destroyed, and more people will be in greater danger if we do 
not do something. We have firefighters laying down their lives on these 
fire lines in some of the worst fires we have ever experienced.
  Today, fires burn hotter, faster, and more intensely than ever, and 
there is a reason for this. The reason is because of forest policy 
which is what has been called fire suppression. That means you go in 
and suppress the fires as soon as they begin. Of course, that takes a 
lot of money, and we have used over $1 billion just fighting these 
fires. It does not prevent a future fire from happening, but I believe 
fire suppression has to become the policy of the past rather than the 
policy of the future because what is happening in our forests is that 
we have an unprecedented buildup of materials on the ground, so-called 
biomass, fuels in plants and bushes.
  We have a lot of nonnative species now springing up where certain 
ancient trees are fire resistant, such as the giant sequoias, for 
example. If other trees grow up among them, they become fire ladders so 
that when a fire starts, it has the fuel on the ground. It has the new 
young trees to use as ladders, and the fire whooshes up, hits the 
canopies of the old trees which are, for the most part, the habitat of 
endangered species and the greatness of our ancient forests.
  The question comes up: How do we work at this? Senator Wyden and I 
have chosen to see if we can put together a compromise between the 
Craig amendment and the Bingaman amendment which will allow us to move 
for the 1 year that is the life of the fiscal year 2003 Interior 
appropriations bill vigorously to treat some of those areas.

  The areas that we would treat really is very small. Our 
recommendation would be up to 7 million acres out of the 24 million 
acres. We know the forest departments are going to try to do at least 2 
million acres. What we are saying to them is: This next year triple 
your activity, move rapidly. Then we try to set the parameters of that 
emergency movement.
  For a moment, I wish to share some of those parameters.
  We make a number of findings in our amendment that document and 
reflect the emerging conditions we find in our forests, and I will talk 
about that in a moment. But the amendment establishes a 1-year pilot 
project to enable the Bureau of Land Management and the Forest Service 
to move rapidly to treat up to 7 million of the 24 million acres in 
those strategic areas.
  Our amendment would have directed all of the work to be only on those 
lands at the highest danger level of catastrophic fire. It would 
stipulate that 70 percent of hazardous fuels reduction projects be done 
either within one-half mile of a community--that is what is called 
urban wildland interface--or within municipal watersheds. Those are the 
watersheds where the fire risk to the ecosystem is the greatest. So 70 
percent of the program would be concentrated in the areas where we know 
there is the greatest risk. The urban interface has been broadly agreed 
to. There is some question on the watershed areas.
  Having said that, for many States, rural States in particular, the 
only way they are going to get any emergency treatment is if we include 
these watershed areas because this is where they generate the big 
fires. These are, obviously, the more rural States. California can 
certainly use all of its funds just within urban interface, but that is 
not true for more rural States.
  Our amendment would also allow the administrative appeals process to 
be truncated for these areas. What we are trying to do is speed things 
along, and we estimate this would save at least 135 days. Any fuels 
reduction projects, such as thinning or brush removal, within a half 
mile of any community would be excluded from what is called NEPA, the 
National Environmental Policy Act, thus preventing these projects from 
being stalled indefinitely. I think there is broad agreement about 
that.
  I think the environmental community understands the need to work 
quickly in areas very close to communities and very close to property.
  Additionally, any temporary injunctive relief, whether it is a TRO, 
which is limited in days, we know, or a preliminary injunction, which 
can go on for a substantial period of time--this is a big give on our 
part. This is, I think, for Senator Wyden--and he will speak for 
himself--but certainly for me this is the last best offer to try to get 
an accommodation with the other side of the aisle. What we did was say 
that any temporary injunctive relief, preliminary injunction, or TRO, 
would be limited to 60 days with the authority to renew each temporary 
injunction without limitation.

  What we believe it would do is cause the judge to reflect on our 
findings in the legislation, on the emergency situation, and on the 
problems directly on the ground at the time.
  I understand my time is up. I ask unanimous consent for an additional 
5 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. FEINSTEIN. This means in situations where the risk of fire is 
absolutely the greatest and projects are being held up in the courts, a 
judge must consider changing circumstances and whether to renew a 
preliminary injunction. Anybody filing an administrative appeal to a 
hazardous reduction project would be required also to raise the issue 
before the close of notice and comment; in other words, to have some 
standing to bring an appeal, not just to be able to jump in after all 
the periods have closed and go to court.
  These were two of our biggest gives in the interest of trying to gain 
60 votes. I truly do not think there is anything else we can do. These 
are very big concessions, at least as far as I am concerned, and I 
think that is echoed by Senator Wyden as well.
  I will quickly outline some of the additional safeguards in our 
amendment. There would be no road construction in any inventoried 
roadless area. An ecologically sufficient number of old and large trees 
would be maintained for each ecosystem; and for fuels reduction 
projects, agencies would be required to do all thinning from ground 
level up. This means that thinning would start with small trees and 
brush at ground level and act as a safeguard against the cutting of 
larger trees. And in special, or what is called extraordinary 
circumstances, such as areas with endangered species or tribal issues 
or where archeological findings may lie, the exclusions from the normal 
process do not apply.
  Additionally, I will speak for one moment about the four findings in 
our amendment because they underlie the problems we are facing.
  Firstly, in 2002, we find that approximately 6.5 million acres of 
forest land have burned, 21 people have died, and 3,079 structures have 
been destroyed. We find the Forest Service and Bureau of Land 
Management have spent a billion dollars fighting these fires. We find 
73 million acres of public lands are classified in the highest risk of 
catastrophic fire. We find that forest management policy of fire 
suppression has resulted in an accumulation of fuel

[[Page S8896]]

load, dead and dying trees, infested trees, nonnative species, creating 
fuel ladders that allow fires to reach the crowns of large old trees 
and cause catastrophic fires. Fourthly, we find the U.S. Forest Service 
and the Department of the Interior should immediately undertake an 
emergency program to reduce the risk of catastrophic fire. Obviously, 
the emergency program is confined to those areas I spoke about.
  In closing, I thank, first, Senator Wyden. I also thank Senator 
Bingaman, Senator Daschle, Senator Craig, Senator Domenici, Senator 
Kyl, and Senator Burns, all of whom have spent an inordinate amount of 
time trying to reach some agreement.
  I restate my belief that the forest fires raging throughout the 
Western United States represent one of the most severe crises facing 
our Nation. The devastation has and will continue to be immense. It is 
the greatest human and ecological threat now facing virtually every 
Western State. This is a crisis that transcends the issue of party 
politics, and I deeply regret our inability to reach a meaningful 
compromise, at least at this time. Because the Interior appropriations 
bill will be on the floor at least for the next few days, I urge my 
colleagues on both sides of the aisle to continue to seek a consensus 
and I, for one, remain open to one.
  I am sorry we do not have an agreement to report, but I want to end 
by thanking Senator Wyden for his leadership. He has a State that has 
glorious forests, as do I. He has been wonderful, and I hope there is a 
change and we may be able to work something out together.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. WYDEN. Madam President, let me begin by expressing my thanks to 
Senator Feinstein. I still hope the Feinstein wisdom will prevail upon 
the Senate and we can get to common ground on this contentious issue. I 
want my colleague to know how much I appreciate the many hours and 
nights we have been at this, shuttling back and forth between our 
offices and the offices of Senator Craig and Senator Bingaman.
  I share the Senator's commitment that, despite the news we have to 
deliver that there is no compromise today, we are not going to give up 
and we expect to revisit this issue in the Senate again soon. I thank 
my colleague for all her leadership, and particularly for her passion 
on this issue.
  When I came to the Senate, I never felt very comfortable when the 
news media said I was elected to fill the seat of Senator Morse or 
Senator Packwood. That is because I do not think the people of Oregon 
send someone to the U.S. Senate just to fill a seat. The people of 
Oregon send someone to the Senate to work for what is right. That is 
what they expect of their Senators: to do what is right and take your 
lumps. They can live with that.
  With that in mind, Senator Feinstein and I have now spent certainly 6 
or 7 weeks trying to help find the common ground in the Senate for a 
balanced, narrowly focused bill to address the fire threat in our 
forests. We knew it would be a difficult task when we took it on, and 
it has certainly lived down to that promise.
  This is what the Senate faced, as Senator Feinstein and I tried to 
move forward. On the one hand, there is one camp of considerable 
passion that, unfortunately, would be willing to use this summer's 
horrendous fires to deny citizens the right to seek justice in a court 
of law or to severely limit those rights. In another camp, there have 
been many who have said we will accept no changes in these laws 
whatsoever, even changes that will benefit the environment. Their 
position, as far as I can tell, is that there is practically a 
constitutional right to a 5-year delay on forest management decisions.
  Given these two camps, Senator Feinstein and I, optimists by nature, 
said we know there are Senators who want to try to come together to 
find the common ground. We set out to do it. Unfortunately, as of this 
afternoon, it seems the Senate is not willing to seize the common 
ground which Senator Feinstein and I believe is within the Senate's 
grasp.
  Today, in a front page article of the Oregonian newspaper it was 
suggested that the Bush administration does not think it needs 
congressional authorization to pursue a solution to the forest health 
problem. My sense is they agree with Senator Feinstein and myself that 
the use of, for example, what are called categorical exclusions offers 
a way to expedite the process required to reduce fire threats and 
restore diseased and damaged forests. The administration plans to 
pursue categorical exclusions though history shows there have been 
successful court challenges to administratively created categorical 
exclusions in the past. We believe the American people and the forests 
would have been better served with narrow specific congressional 
authorization of categorical exclusions--but, due to the lack of a 
compromise, that congressional action, as of this afternoon, will not 
happen on this bill.
  Though, as we worked over the last few weeks, it seemed a core group 
Senator Feinstein, Senator Craig, Senator Bingaman, Senator Domenici, 
and others--were very close to a compromise, we did not get there.
  Instead, the result has been so many pieces of stray paper floating 
around Washington, the country, and the internet, as well as a whole 
host of poorly informed rumors. So much misinformation is out there 
that I have posted our joint Feinstein/Wyden proposal on my Web site so 
that people will see what it is we have sought to do to try to bring 
the Senate and our constituents together. I will touch on that proposal 
just briefly.
  First, we allow the use of broad categorical exclusions to thin and 
salvage in the most fire-prone areas within the urban-wildland 
interface and allow the use of somewhat narrower categorical exclusions 
to manage fire-prone lands in other areas.
  Second, we require people who may want to file an administrative 
appeal on a project at a later date to participate in the public 
comment process on that project.
  Third, we require judges to periodically review temporary injunctive 
relief granted and to review those injunctions with updated information 
every time a project is brought before the court.
  My sense is the administration could have accepted the proposal 
Senator Feinstein and I have pursued--but not enough Senators could see 
their way there.
  If Members want to get something done, they are going to have to take 
some political risk. I am not here to blame anyone. Senators have 
worked in good faith. However, I do not think it is too much to ask 
Senators to take a political risk to solve this critical problem so 
that families and forests are not facing the ultimate risk of 
devastating fires summer after summer.
  There should be no confusion on this point. Unless there is some 
willingness on the part of the Senate to take the kind of political 
risk necessary to find common ground, we will see these devastating 
unnatural fires summer after summer after summer, as sure as night 
follows day.
  There were a host of obstacles to a compromise today, though in the 
past we have been able to find common ground. Senator Craig and I, for 
example, led an effort in this body to write the county payments law, a 
critical law that is used to offer billions of dollars for rural 
communities to pay for services and schools. People said that could not 
be done. The Forest Service now calls it the most important law for 
that agency in 30 years. Senator Craig and I came together more 
recently to try to advance an old growth protection proposal for the 
Pacific Northwest, though we have a lot more work to do in that arena. 
My point is, it is possible to find common ground.
  I am going to try again, probably a lot sooner than some people think 
or may want, on this issue. But I do know that two Democrats, despite 
all the pushing and pulling, do not make a winning hand in the Senate.
  Senator Feinstein and I faced some big challenges. I opposed those 
who hold out for a major overhaul of the judicial process on this bill, 
though, due to its controversial nature, that approach is not going to 
allow us, any time soon, to address the risk of fire. We opposed others 
who may want to grant very broad forest management exemptions for 
projects conducted within municipal watersheds. That will also make it 
impossible to find common ground and a compromise.

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  But like I said earlier, I don't want to blame anyone today. 
Certainly, with all the misinformation out there about what I have done 
and supposedly not done or said during the last few weeks--and I am 
sure other Senators feel the same--this is not a time to offer a litany 
of charges with respect to any Member of this body.
  My bottom line is this: I hope these efforts, laborious though they 
have been, can someday soon yield fruit. Toward that end, I thank a 
number of colleagues. Senator Craig has worked in good faith, and 
certainly closely with me. I hold him in the highest regard. Senator 
Feinstein, as I have already mentioned, was there night and day working 
on this issue and I appreciate her efforts. Senator Daschle and Senator 
Bingaman went out of their ways to try to accommodate Senator Feinstein 
and me. For their efforts, I am appreciative, as well.
  I chair the Subcommittee on Forests and Public Land Management. In 
Oregon, we have had tragic fires. I have been consumed by this day 
after day after day. I wish we were in the Senate today saying we had 
found the common ground. I think it is possible to do it. The Senate 
cannot leave this subject for too long and will return to it after this 
bill is done in some form or another. Too many lives and too many 
communities will be devastated if the Senate washes its hands of this 
issue. I am committed to working with all my colleagues, on a 
bipartisan basis, day after day after day, until this gets done.
  I hope one day soon I will be able to come to the floor of the Senate 
and participate with my colleagues on something that all Members can 
believe is a positive step forward to make sure these treasures, our 
forests and lands across this country, are managed properly.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Alaska.

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