[House Report 108-96]
[From the U.S. Government Publishing Office]



108th Congress                                             Rept. 108-96
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     Part 2
======================================================================
 
                HEALTHY FORESTS RESTORATION ACT OF 2003

                                _______
                                

  May 16, 2003.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 1904]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 1904) to improve the capacity of the Secretary of 
Agriculture and the Secretary of the Interior to plan and 
conduct hazardous fuels reduction projects on National Forest 
System lands and Bureau of Land Management lands aimed at 
protecting communities, watersheds, and certain other at-risk 
lands from catastrophic wildfire, to enhance efforts to protect 
watersheds and address threats to forest and rangeland health, 
including catastrophic wildfire, across the landscape, and for 
other purposes, having considered the same, reports favorably 
thereon without amendment and recommends that the bill do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     2
Hearings.........................................................     6
Committee Consideration..........................................     7
Vote of the Committee............................................     7
Committee Oversight Findings.....................................     8
New Budget Authority and Tax Expenditures........................     8
Congressional Budget Office Cost Estimate........................     8
Performance Goals and Objectives.................................    11
Constitutional Authority Statement...............................    11
Section-by-Section Analysis and Discussion.......................    11
Changes in Existing Law Made by the Bill, as Reported............    13
Markup Transcript................................................    15
Dissenting Views.................................................    81

                          Purpose and Summary

    The purpose of H.R. 1904, the ``Healthy Forests Restoration 
Act of 2003,'' is to: (1) empower the Secretary of Agriculture 
and the Secretary of the Interior to implement hazardous fuel 
reduction projects on National Forest System lands that protect 
communities and watersheds from catastrophic wildfire; and (2) 
promote other efforts that safeguard watersheds and address 
threats to forest and range land health, such as wildfire and 
insect infestation. The courts provisions set forth in the 
legislation are designed to expedite legal and administrative 
proceedings regarding governmental responses to forestry 
crises.

                Background and Need for the Legislation

                         PROCEDURAL BACKGROUND

    H.R. 1904 was introduced on May 1, 2003, and referred to 
the Committee on Agriculture and the Committee on Resources on 
that same day. The Committee on Agriculture reported the bill 
by voice vote on May 8 and filed its Committee report (H. Rept. 
108-96, Part I) the following day. The Committee on Resources 
marked up a Committee Print that is identical to H.R. 1904 and 
also discharged the bill on May 9.
    H.R. 1904 was sequentially referred to the Committee on the 
Judiciary on May 9 for a period of time ending not later than 
May 16, 2003, for consideration of those provisions within its 
jurisdiction.

                          NEED FOR LEGISLATION

    Federal land managers estimate that approximately 190 
million acres of Federal forest lands are at unnaturally high 
risk of catastrophic wildfires and large-scale insect and 
disease outbreaks due to unhealthy forest conditions. The 
wildfire seasons in 2000 and 2002 were among the largest and 
most destructive wildfire seasons in the last half century. 
Last summer, Oregon, Arizona, and Colorado experienced the 
largest wildfires in their respective histories, causing 
cataclysmic damage to air quality, water quality, and wildlife 
habitat in each of the states and beyond.
    While America's forest health crisis is often cast as a 
phenomena unique to western forest lands--based largely on the 
high profile of western wildfires--it is not. Massive pest and 
pathogen outbreaks are also degrading forest ecosystems in all 
parts of the country. In Arkansas, for example, a recent 
unprecedented outbreak of Red Oak Borer has infected 800,000 
acres of Federal and non-Federal forest lands. This is not an 
isolated event.
    The Healthy Forests Restoration Act of 2003 is a 
comprehensive plan focused on giving Federal land managers, 
their stakeholders, and their partners the tools to respond to 
this growing forest health crisis. This legislation requires 
the timely implementation of scientifically-supported 
management activities to protect the health and vibrancy of 
Federal forest ecosystems as well as the communities and 
private lands that surround them.

          TITLE I--HAZARDOUS FUELS REDUCTION ON FEDERAL LANDS

    This title's underlying premise is simple and clear: With 
190 million acres at unnaturally high risk of catastrophic 
wildfire, it is unacceptable that it takes Federal land 
managers several years to maneuver forest health projects (like 
thinning and prescribed burns) through various procedural 
requirements. Under this title, forest management projects will 
still be subject to rigorous environmental analysis as well as 
administrative challenges and lawsuits, but these multiple 
processes would be completed in a matter of months, rather than 
years, as is currently the case.
    Geographic Scope. This title establishes streamlined 
procedures that empower local land managers with the tools to 
expeditiously implement hazardous fuels reduction projects on 
Forest Service and BLM lands: (1) near communities in the wild 
land urban interface; (2) on high-risk lands in the proximity 
of municipal water sources; (3) on high-risk lands that 
encompass habitat for threatened and endangered species where 
Federal wildlife officials have identified catastrophic 
wildfire as a threat to the viability of the species; and (4) 
on high-risk landscapes particularly susceptible to disease or 
insect infestation.
    Public Participation. The bill codifies the bipartisan 
Western Governors Association (WGA) 10-Year Strategy's robust 
public input and participation requirements, ensuring that 
interested persons will have numerous opportunities to engage 
decision makers during all phases of a project's development 
and implementation. The WGA strategy was endorsed by many 
government and non-government organizations, including 
environmental groups like the Wilderness Society. The bill also 
requires an additional public meeting for all projects 
implemented under this Act beyond that which is required 
currently.
    Management Priorities. The bill codifies the WGA 
prioritization scheme, placing express priority on the 
reduction of hazardous conditions in the Wildland Urban 
Interface and in proximity to sources of municipal water.
    National Environmental Policy Act (NEPA). The bill would 
give the Forest Service and the Bureau of Land Management (BLM) 
discretionary authority to limit analysis during the NEPA-phase 
to the proposed action only. The agencies would not be required 
to analyze and describe a number of different alternatives to 
the preferred course when implementing a hazardous fuels 
reduction project on lands described above. Agencies typically 
analyze three to five alternatives at present. One NEPA expert 
estimates that each alternative analyzed results in a 20% 
increase in the amount of analysis and documentation for the 
agency. Currently, it often takes multiple years to get fuels 
reduction projects just through the NEPA phase, an unacceptably 
slow pace given the immediacy and size of the wildfire threat. 
This provision would substantially speed that deliberative 
process, while simultaneously ensuring that all of the 
environmental effects of a project have been thoroughly 
analyzed and vetted with the concerned public.
    Administrative Appeals. The Forest Service is the only 
Federal land management agency with an administrative appeals 
process codified in statute--a 1993 appropriation rider called 
the Appeals Reform Act. The Park Service and the Fish and 
Wildlife Service have no formal appeals in any form. The BLM 
does not have an administrative appeals or review process 
codified in Federal statute, but has established a pre-
decisional review process that gives interested parties a venue 
in which to seek administrative redress. The BLM process is 
widely viewed as being more collaborative, and less 
confrontational, than the Appeals Reform Act that governs the 
Forest Service.
    A hazardous fuels reduction project implemented on at-risk 
lands on the Deschutes, White River, or Plumas National Forests 
face a significantly higher administrative appeals bar than the 
exact same project would encounter if implemented in 
Yellowstone National Park (Park Service), the Klamath Basin 
Wildlife Refuge (Fish and Wildlife Service), or the Canyons of 
the Ancients National Monument (BLM). With the National Fire 
Plan's emphasis on inter-agency cooperation, this makes little 
sense.
    Against this backdrop, the legislation would provide a 
limited waiver of the Appeals Reform Act for projects 
implemented under this legislation, instead directing the 
establishment of an alternative review process by which persons 
could seek administrative redress against such projects. The 
Forest Service would have 90 days to draft, take comment on, 
and finalize this new process for administrative review. The 
Appeals Reform Act would continue to be applicable to timber 
and salvage projects as well as all other project level 
activities not implemented under the Act.
    Judicial Review. The bill has three primary provisions 
pertaining to the Federal judiciary's consideration of 
potential actions brought against hazardous fuels reduction 
projects.
    The bill would require preliminary injunctions granted by a 
Federal court against a project implemented under this Act be 
reevaluated every 45 days. In cases where a plaintiff seeks to 
extend a preliminary injunction beyond the 45-day threshold, 
the bill requires the agency to provide an update to the court 
on the status of the conditions of the forest lands at issue, 
including the extent to which disease or insect infestation or 
wildfire risks have grown since the temporary restraining order 
or preliminary injunction were granted. The court could extent 
preliminary injunctions an unlimited number of times at the end 
of each 45-day interval.
    Currently, preliminary stays on fuels reduction projects 
can remain in effect for months before a court finally reaches 
a decision on the overarching merits of the legal challenge. 
These long delays can by themselves defeat the purposes of a 
forest treatment project, particularly if a project is aimed at 
stemming the spread of disease or insect infestation to 
uninfected forest lands. In these cases, judicial delay is just 
as lethal as judicial defeat for the government. Without 
curbing anyone's ability to pursue a full range of judicial 
procedures, this provision would ensure that the court remains 
engaged on the status of a project, including the extent to 
which management inaction is exacerbating wildfire and forest 
health risks.
    The bill admonishes, in non-binding terms, Federal courts 
considering a legal challenge to a hazardous fuels reduction 
project to take all necessary steps required in order to issue 
a decision on the merits of the legal challenge within 100 
days.
    The bill directs Federal courts, when considering a 
challenge to hazardous fuels reduction projects, to weigh the 
potentially devastating environmental consequences associated 
with management inaction, while giving deference to the Forest 
Service and BLM's scientific determinations as to the 
environmental utility of a project in reducing the threat of 
wildfire to forest ecosystems. Without this explicit statutory 
direction, some Federal courts have been loath to consider the 
devastating consequences of doing nothing to address the 
hazardous forest conditions.
    Safeguards. The Forest Service and BLM would NOT be 
authorized to use the expedited analysis procedures in 
wilderness areas, or lands where, by Act of Congress or 
Presidential proclamation, the removal of vegetation is 
prohibited or restricted. Also, the bill's expedited 
authorities would not be available in National Parks or in 
Wildlife Refuges. Projects implemented in these areas would 
have to be done so under existing authorities.
    Additionally, the bill provides that the Forest Service 
will not be allowed to build new permanent roads in Inventoried 
Roadless Areas under the bill's expedited procedures.
    Scope. The Healthy Forests Restoration Act's streamlined 
procedures could be used on up to 20-million acres of Federal 
lands eligible under the bill's provisions, the same number of 
acres authorized for treatment under Representative George 
Miller and Representative Peter Defazio's wildfire legislation 
introduced in the 108th Congress (H.R. 1621).

                           TITLE II--BIOMASS

    The biomass title would establish grant programs 
(authorized at $25 million combined) to encourage energy-
related utilization of the otherwise valueless wood, chips, 
brush, thinnings, and slash removed in conjunction with 
projects on Federal forests and rangelands focused on reducing 
the threat of catastrophic wildfire and insect infestation and 
disease.
    As the Federal Government wrestles with the wildfire crisis 
in the national forests, the choice is plain: either the 
Federal Government can spend billions of dollars removing these 
unmerchantable materials itself and burning them once removed, 
or it can take steps to develop markets which in the long run 
will encourage non-government entities to help pay the way for 
wildfire management activities, while providing a source of 
renewable energy for the American people. Even though there is 
a price tag to the biomass provisions, they will actually save 
the Federal Government money in the long run by creating market 
incentives for non-governmental entities to remove the 
otherwise valueless forest materials that feed catastrophic 
wildfire.

                TITLE III--WATERSHED FORESTRY ASSISTANCE

    The watershed forestry title would provide financial and 
technical support needed by private forest landowners to manage 
their lands and thereby protect water quality, restore 
watershed conditions, improve municipal drinking water 
supplies, and address threats to forest health, including 
catastrophic wildfire.
    Authorized at $15 million over 5 years, the program would 
support community-based watershed forestry partnerships that 
address critical forest stewardship, watershed protection, and 
restoration needs.

           TITLE IV--INSECT INFESTATION INFORMATION GATHERING

    The insect research title directs the Department to conduct 
an accelerated program to plan, conduct, and promote research 
on bark beetles, the hemlock woolly adelgid, the emerald ash 
borer, the red oak borer, and the white oak borer.
    Hemlock woolly adelgid is destroying streamside forests 
throughout the mid-Atlantic and Appalachian region, threatening 
water quality and sensitive aquatic species, and posing a 
potential threat to valuable commercial timber lands in 
Northern New England. Epidemic populations of Southern pine 
beetle are ravaging forests in Alabama, Florida, Georgia, 
Kentucky, Mississippi, North Carolina, South Carolina, 
Tennessee, and Virginia. In 2001, Florida and Kentucky 
experienced 146% and 111% increases in beetle populations, 
respectively. These epidemic outbreaks of Southern pine beetle 
have forced private landowners to harvest dead and dying trees, 
both in rural areas and in increasingly urbanized settings. The 
presence of the EAB was confirmed in Michigan last year and in 
Ohio early this year. This exotic pest is a threat to the over 
3.8-billion ash trees found on more than 850,000 acres of 
forest land in Ohio alone. It also threatens between 5 and 20 
percent of street trees in the upper Midwest.
    The legislation would categorically exclude silvicultural 
(forestry) assessments of 1,000 acres or less on lands infected 
or at imminent risk of being infected by these insects, in an 
attempt to glean which techniques are most effective in slowing 
their rapid spread. These procedures could not be implemented 
on more than 250,000 acres in the aggregate. The Secretary 
concerned would be required to consider public input before 
implementing these assessments.

            TITLE V--EARLY WARNING PROGRAM FOR DISEASE AND 
                          INSECT INFESTATIONS

    This title would authorize and direct Federal land managers 
to establish early detection programs for insect and disease 
infestations, with an emphasis on hardwood forests, so that 
agencies can isolate and treat adverse conditions before they 
reach epidemic levels.

                    TITLE VI--HEALTHY FOREST RESERVE

    The healthy forests reserve program is a private forest 
land conservation initiative that would support the 
establishment of conservation easements (ranging in length from 
10 years to permanent with a semi-regular buyout option) on one 
million acres of declining forest ecosystem types that are 
critical to, among other things, the recovery of threatened, 
endangered, and other sensitive species. The program, supported 
by such groups as Environmental Defense, will facilitate the 
voluntary protection and restoration of otherwise imperiled 
forest ecosystems, while protecting the rights of private 
landowners once an easement has expired under the Endangered 
Species Act's safe harbor allowances. The program is authorized 
for 5 years at $15 million annually.

                                Hearings

    No hearings were held on H.R. 1904 in the Committee on the 
Judiciary.

                        Committee Consideration

    On May 14, 2003, the Committee met in open session and 
ordered favorably reported the bill H.R. 1904 without amendment 
by a recorded vote of 18 to13, a quorum being present.

                         Vote of the Committee

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee notes that the 
following rollcall votes occurred during the Committee's 
consideration of H.R. 1904:
    Representative Baldwin offered an amendment to strike 
sections 104, 105, 106, and 107 of the bill. The amendment 
failed by a recorded vote of 12 to 17.

                                                   ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................                              X
Mr. Smith.......................................................
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Chabot......................................................                              X
Mr. Jenkins.....................................................                              X
Mr. Cannon......................................................                              X
Mr. Bachus......................................................                              X
Mr. Hostettler..................................................                              X
Mr. Green.......................................................                              X
Mr. Keller......................................................                              X
Ms. Hart........................................................                              X
Mr. Flake.......................................................
Mr. Pence.......................................................                              X
Mr. Forbes......................................................
Mr. King........................................................                              X
Mr. Carter......................................................                              X
Mr. Feeney......................................................                              X
Mrs. Blackburn..................................................                              X
Mr. Conyers.....................................................              X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................
Ms. Waters......................................................              X
Mr. Meehan......................................................              X
Mr. Delahunt....................................................
Mr. Wexler......................................................              X
Ms. Baldwin.....................................................              X
Mr. Weiner......................................................              X
Mr. Schiff......................................................              X
Ms. Sanchez.....................................................              X
Mr. Sensenbrenner, Chairman.....................................                              X
                                                                 -----------------------------------------------
    Total.......................................................             12              17
----------------------------------------------------------------------------------------------------------------

    Chairman Sensenbrenner moved that the bill H.R. 1904 be 
favorably reported to the House. The motion passed by a 
rollcall vote of 18 to 13.

                                                   ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................              X
Mr. Smith.......................................................              X
Mr. Gallegly....................................................              X
Mr. Goodlatte...................................................              X
Mr. Chabot......................................................              X
Mr. Jenkins.....................................................              X
Mr. Cannon......................................................              X
Mr. Bachus......................................................              X
Mr. Hostettler..................................................              X
Mr. Green.......................................................              X
Mr. Keller......................................................              X
Ms. Hart........................................................              X
Mr. Flake.......................................................
Mr. Pence.......................................................              X
Mr. Forbes......................................................
Mr. King........................................................              X
Mr. Carter......................................................              X
Mr. Feeney......................................................              X
Mrs. Blackburn..................................................              X
Mr. Conyers.....................................................                              X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................                              X
Mr. Scott.......................................................                              X
Mr. Watt........................................................                              X
Ms. Lofgren.....................................................                              X
Ms. Jackson Lee.................................................                              X
Ms. Waters......................................................                              X
Mr. Meehan......................................................                              X
Mr. Delahunt....................................................
Mr. Wexler......................................................                              X
Ms. Baldwin.....................................................                              X
Mr. Weiner......................................................                              X
Mr. Schiff......................................................                              X
Ms. Sanchez.....................................................                              X
Mr. Sensenbrenner, Chairman.....................................              X
                                                                 -----------------------------------------------
    Total.......................................................             18              13
----------------------------------------------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee reports that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 1904, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                      Washington, DC, May 15, 2003.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1904, the Healthy 
Forests Restoration Act of 2003.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Megan 
Carroll, who can be reached at 226-2860.
            Sincerely,
                                       Douglas Holtz-Eakin.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member
H.R. 1904--Healthy Forests Restoration Act of 2003.

                                SUMMARY

    CBO estimates that H.R. 1904 would authorize the 
appropriation of $70 million in 2004 and $350 million over the 
2004-2008 period to research and restore forests on Federal, 
State, and private lands. Assuming appropriation of the 
necessary amounts, CBO estimates that implementing the bill 
would cost $12 million in 2004 and $278 million over the next 5 
years. Enacting this legislation could affect offsetting 
receipts (a credit against direct spending), but CBO estimates 
that any such effects would total less than $500,000 a year.
    H.R. 1904 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA) 
and would impose no costs on State, local, or tribal 
governments. CBO assumes that States' participation in the 
watershed forestry assistance programs authorized by this bill 
would be voluntary. Federal funds authorized for those and 
other programs would benefit State, local, and tribal 
governments.

                ESTIMATED COST TO THE FEDERAL GOVERNMENT

    The estimated budgetary impact of H.R. 1904 is shown in the 
following table. The costs of this legislation fall within 
budget function 300 (natural resources and environment).

                 By Fiscal Year, in Millions of Dollars
------------------------------------------------------------------------
                                        2004   2005   2006   2007   2008
------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
  Estimated Authorization Level           70     70     70     70     70
  Estimated Outlays                       12     41     61     80     84
------------------------------------------------------------------------

                           BASIS OF ESTIMATE

    For this estimate, CBO assumes that H.R. 1904 will be 
enacted before the end of fiscal year 2003 and that amounts 
estimated to be necessary to implement the bill will be 
provided each year. Estimates of outlays are based on 
historical spending patterns for similar activities. Provisions 
that would affect spending subject to appropriation and direct 
spending are described below.
Spending Subject to Appropriation
    S. 1904 would specifically authorize the appropriation of 
$60 million in 2004 and $300 million over the 2004-2008 period 
for the Forest Service and the Department of the Interior (DOI) 
to support research and restoration of Federal, State, and 
private forests. The bill would authorize those agencies to 
make grants to eligible entities that use biomass to produce 
energy, provide States with technical and financial assistance 
to support watershed management, purchase conservation 
easements from private landowners, and assess the health of 
Federal and private forests. Based on information from the 
agencies and historical spending patterns for similar 
activities, CBO estimates that these programs would cost $9 
million in 2004 and $230 million over the next 5 years.
    Based on information from the Forest Service and DOI about 
the level of effort required to investigate infestations of 
forests by insects and to develop treatments to reduce the risk 
of infestation, CBO estimates that S. 1904 would authorize the 
appropriation of $10 million a year over the 2004-2008 period. 
We estimate that fully funding these activities would cost $3 
million in 2004 and $48 million over the next 5 years.
Direct Spending (Including Offsetting Receipts)
    Title I would authorize expedited procedures for planning 
and conducting certain projects to reduce the risk of wildfires 
on certain Federal lands managed by the Forest Service or the 
Bureau of Land Management (BLM). Under the bill, those 
expedited procedures would limit some environmental assessment 
requirements and shorten administrative and judicial appeals. 
According to the Forest Service and BLM, the expedited 
procedures could affect the timing of some projects that 
generate offsetting receipts, such as timber harvests, that the 
agencies plan to conduct under current law. Based on 
information from the agencies, however, CBO estimates that any 
subsequent change in offsetting receipts would total less than 
$500,000 annually.

              INTERGOVERNMENTAL AND PRIVATE-SECTOR IMPACT

    H.R. 1904 contains no intergovernmental or private-sector 
mandates as defined in UMRA and would impose no costs on State, 
local, or tribal governments. CBO assumes that States 
participation in the watershed forestry assistance programs 
authorized by this bill would be voluntary. Federal funds 
authorized for those and other programs would benefit State, 
local, and tribal governments.

                         PREVIOUS CBO ESTIMATES

    On May 9, 2003, CBO transmitted a cost estimate for H.R. 
1904 as ordered reported by the House Committee on Agriculture 
on May 8, 2003. The two versions of the bill are identical, and 
our cost estimates are the same.
    On May 7, 2003, CBO transmitted a cost estimate for S. 14, 
the Energy Policy Act of 2003, as introduced on April 30, 2003. 
A provision in that bill is substantively similar to a 
provision of H.R. 1904 that would authorize grants to eligible 
entities that use biomass to produce energy, and our estimates 
of the cost of such grants ($25 million a year) are the same 
under both bills.

                         ESTIMATE PREPARED BY:

Federal Costs: Megan Carroll (226-2860)
Impact on State, Local, and Tribal Governments: Marjorie Miller 
    (225-3220)
Impact on the Private Sector: Cecil McPherson (226-2940)

                         ESTIMATE APPROVED BY:

Peter H. Fontaine
Deputy Assistant Director for Budget Analysis

                    Performance Goals and Objectives

    With respect to the requirement of clause 3(c)(4) of rule 
XIII of the Rules of the House of Representatives, the 
performance goals and objectives of H.R. 1904 are to improve 
the capacity of the Secretary of Agriculture and the Secretary 
of the Interior to plan and conduct hazardous fuels reduction 
projects for the National Forest System and the Bureau of Land 
Management. Once implemented, these projects will protect 
communities, watersheds, and certain other at-risk lands from 
catastrophic wildfire and will address additional threats to 
forest and rangeland health, including insect infestation, 
across the landscape.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds the 
Constitutional authority for this legislation in article I, 
section 8, and article III, section 1, of the Constitution.

               Section-by-Section Analysis and Discussion

    The following is a section-by-section analysis of the 
provisions of the bill falling within the Committee on the 
Judiciary's rule X jurisdiction. An analysis of the remaining 
provisions may be found in the Agriculture Committee report (H. 
Rept. No. 108-96, part I).
    Sec. 104. Environmental Analysis. Pursuant to section 
104(a) and (b), the Secretary concerned (either Agriculture or 
Interior) must plan and conduct authorized hazardous fuels 
reduction projects in accordance with the National 
Environmental Policy Act of 1969, but she is not required to 
develop any alternative to the proposed agency action in the 
environmental assessment or impact statement which is otherwise 
required by the Act.
    Subsections (c) through (e) enumerate public notice and 
meeting requirements imposed on the concerned Secretary that 
are designed to encourage public participation and to 
facilitate collaboration among governments and interested 
parties in the development of authorized hazardous fuels 
reduction projects.
    Subsection (f) requires the Secretary concerned to sign a 
decision document for each authorized hazardous fuels reduction 
project while subsection (g) states that she must monitor 
implementation of each project.
    Sec. 105. Special Forest Service Administrative Review 
Process. Subsection (a) states that the Secretary of 
Agriculture, 90 days after the date of enactment, must issue 
final regulations to establish an administrative process that 
will serve as the sole means by which a person can seek 
administrative redress regarding an authorized hazardous fuels 
reduction project. Subsection (b) creates standing for a person 
seeking such redress by requiring that she must have submitted 
substantive and specific written comments during the 
preparation stage of the project.
    Subsection (c) makes clear that the Appeals Reform Act of 
1993 pertaining to Forest Service administrative appeals does 
not apply for those projects contemplated by H.R. 1904.
    Sec. 106. Special Requirements Regarding Judicial Review of 
Authorized Hazardous Fuels Reduction Projects. Subsection (a) 
mandates that any legal challenge to an authorized hazardous 
fuels reduction project must be filed before the end of the 15-
day period beginning on the date on which the Secretary 
concerned publishes in the local paper of record notice of the 
final agency action on the matter. This time limit supersedes 
any other filing deadline under law and may not be waived by a 
district court.
    Subsection (b) states that any preliminary injunction 
granted regarding an authorized hazardous fuels reduction 
project shall be limited to 45 days. Pursuant to subsection 
(c), a court may renew a preliminary injunction, taking into 
account congressional intent that the court expedite, to the 
maximum extent practicable, the ongoing legal proceedings with 
the goal of rendering a final determination on jurisdiction, 
and if jurisdiction exists, a final determination on the 
merits, within 100 days from the date the proceeding is filed.
    Finally, parties are required to submit relevant updates on 
any changes that may have occurred during the period of 
injunction to a court that is considering a request to renew 
the injunction. If the injunction is renewed, the Secretary 
concerned must notify the House Committee on Resources and the 
House Committee on Agriculture as well as the Senate Committee 
on Energy and Natural Resources and the Senate Committee on 
Agriculture, Nutrition, and Forestry.
    Sec. 107. Standard for Injunctive Relief for Agency Action 
to Restore Fire-Adapted Forest or Rangeland Ecosystems. Section 
107 states that when an aggrieved person seeks a prohibitory or 
mandatory injunction against agency action governing 
restoration of a fire-adapted forest or rangeland ecosystem, 
including an authorized fuels reduction project, the court 
reviewing the request must: (1) consider the public interest in 
avoiding long-term harm to the ecosystem; and (2) give 
deference to any agency finding that the balance of harm and 
the public interest in avoiding the short-term effects of the 
agency action is outweighed by the public interest in avoiding 
long-term harm to the ecosystem.
    Sec. 108. Rules of Construction. Unless otherwise indicated 
in title I, and per section 104 of the bill, the planning and 
conducting of authorized hazardous fuels reduction projects 
must be done in accordance with the National Environmental 
Policy Act of 1969. Subsection (a) states that nothing in title 
I shall be construed to affect or bias a Secretary's use of 
other statutory or administrative authorities to plan or 
conduct a hazardous fuels reduction project on Federal land.
    There is ongoing litigation within the 9th Circuit 
regarding the ``Roadless Area Conservation Rule'' and the 
potential prohibition of road construction in approximately 
one-third of the National Forest System. Subsection (b) states 
that nothing in title I of the bill shall prejudice or 
otherwise affect the consideration or disposition of this 
action.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italics and existing law in which no change is 
proposed is shown in roman):

      SECTION 6 OF THE COOPERATIVE FORESTRY ASSISTANCE ACT OF 1978

SEC. 6. WATERSHED FORESTRY ASSISTANCE.

    (a) General Authority and Purpose.--The Secretary, acting 
through the Forest Service, may provide technical, financial, 
and related assistance to State foresters and equivalent State 
officials for the purpose of expanding State forest stewardship 
capacities and activities through State forestry best-
management practices and other means at the State level to 
address watershed issues on non-Federal forested lands and 
potentially forested lands.
    (b) Technical Assistance To Protect Water Quality.--
            (1) In general.--The Secretary, in cooperation with 
        State foresters or equivalent State officials, shall 
        engage interested members of the public, including 
        nonprofit organizations and local watershed councils, 
        to develop a program of technical assistance to protect 
        water quality, as described in paragraph (2).
            (2) Purpose of program.--The program under this 
        subsection shall be designed--
                    (A) to build and strengthen watershed 
                partnerships that focus on forested landscapes 
                at the local, State, and regional levels;
                    (B) to provide State forestry best-
                management practices and water quality 
                technical assistance directly to nonindustrial 
                private forest landowners;
                    (C) to provide technical guidance to land 
                managers and policy makers for water quality 
                protection through forest management;
                    (D) to complement State and local efforts 
                to protect water quality and provide enhanced 
                opportunities for consultation and cooperation 
                among Federal and State agencies charged with 
                responsibility for water and watershed 
                management;
                    (E) to provide enhanced forest resource 
                data and support for improved implementation 
                and monitoring of State forestry best-
                management practices.
            (3) Implementation.--The program of technical 
        assistance shall be implemented by State foresters or 
        equivalent State officials.
    (c) Watershed Forestry Cost-Share Program.--
            (1) In general.--The Secretary shall establish a 
        watershed forestry cost-share program to be 
        administered by the Forest Service and implemented by 
        State foresters or equivalent State officials. Funds or 
        other support provided under such program shall be made 
        available for State forestry best-management practices 
        programs and watershed forestry projects.
            (2) Watershed forestry projects.--The State 
        forester or equivalent State official of a State, in 
        coordination with the State Forest Stewardship 
        Coordinating Committee established under section 19(b) 
        for that State, shall annually make awards to 
        communities, nonprofit groups, and nonindustrial 
        private forest landowners under the program for 
        watershed forestry projects described in paragraph (3).
            (3) Project elements and objectives.--A watershed 
        forestry project shall accomplish critical forest 
        stewardship, watershed protection, and restoration 
        needs within a State by demonstrating the value of 
        trees and forests to watershed health and condition 
        through--
                    (A) the use of trees as solutions to water 
                quality problems in urban and rural areas;
                    (B) community-based planning, involvement, 
                and action through State, local and nonprofit 
                partnerships;
                    (C) application of and dissemination of 
                monitoring information on forestry best-
                management practices relating to watershed 
                forestry;
                    (D) watershed-scale forest management 
                activities and conservation planning; and
                    (E) the restoration of wetland (as defined 
                by the States) and stream-side forests and the 
                establishment of riparian vegetative buffers.
            (4) Cost-sharing.--Funds provided under this 
        subsection for a watershed forestry project may not 
        exceed 75 percent of the cost of the project. Other 
        Federal funding sources may be used to cover a portion 
        of the remaining project costs, but the total Federal 
        share of the costs may not exceed 90 percent. The non-
        Federal share of the costs of a project may be in the 
        form of cash, services, or other in-kind contributions.
            (5) Prioritization.--The State Forest Stewardship 
        Coordinating Committee for a State shall prioritize 
        watersheds in that State to target watershed forestry 
        projects funded under this subsection.
            (6) Watershed forester.--Financial and technical 
        assistance shall be made available to the State 
        Forester or equivalent State official to create a State 
        best-management practice forester to lead statewide 
        programs and coordinate small watershed-level projects.
    (d) Distribution.--
            (1) In general.--The Secretary shall devote at 
        least 75 percent of the funds appropriated for a fiscal 
        year pursuant to the authorization of appropriations in 
        subsection (e) to the cost-share program under 
        subsection (c) and the remainder to the task of 
        delivering technical assistance, education, and 
        planning on the ground through the State Forester or 
        equivalent State official.
            (2) Special considerations.--Distribution of these 
        funds by the Secretary among the States shall be made 
        only after giving appropriate consideration to--
                    (A) the acres of nonindustrial private 
                forestland and highly erodible land in each 
                State;
                    (B) each State's efforts to conserve 
                forests;
                    (C) the acres of forests in each State that 
                have been lost or degraded or where forests can 
                play a role in restoring watersheds; and
                    (D) the number of nonindustrial private 
                forest landowners in each State.
    (e) Authorization of Appropriations.--There is authorized 
to be appropriated to carry out this section $15,000,000 for 
each of the fiscal years 2004 through 2008.

                           Markup Transcript


                            BUSINESS MEETING

                        WEDNESDAY, MAY 14, 2003

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:01 a.m., in 
Room 2141, Rayburn House Office Building, Hon. F. James 
Sensenbrenner, Jr. [Chairman of the Committee] presiding.
    Chairman Sensenbrenner. The Committee will be in order. A 
working quorum is present. At the request of the minority, the 
first item on the agenda is H.R. 1904, the ``Healthy Forest 
Restoration Act.''
    I now call up bill H.R. 1904 for purposes of markup, and 
move its favorable recommendation to the full House. Without 
objection, the bill will be considered as read, and open for 
amendment at any point.
    [The bill, H.R. 1904, follows:]
      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


    Chairman Sensenbrenner. I yield to the gentleman from 
Virginia, Mr. Goodlatte, the Chairman of the Committee on 
Agriculture, for an opening statement.
    Mr. Goodlatte. Mr. Chairman, I thank you very much. I thank 
you for taking up this important legislation. It is very 
appropriate that we consider H.R. 1904, the bipartisan 
legislation entitled the Healthy Forest Restoration Act of 
2003, as we are about to face another season with higher than 
average risk of wildfire in many parts of the country.
    The legislation before the Committee today is a carefully 
crafted compromise that has cleared two other Committees. The 
Healthy Forest Restoration Act is intended to save and protect 
our forests from destruction, not the opposite, as some are 
falsely characterizing it.
    H.R. 1904 will allow the sustainable management of forests 
for generations to come by giving Federal, State, and private 
land managers the flexibility and tools needed to ensure 
healthy, sustainable forests. It will do a lot more than just 
protect the health of our forests and ecosystems. It will also 
provide an economic stimulus for the communities so dependent 
on forestland. This bipartisan legislation balances efforts to 
restore, protect, and enhance forests, with efforts to promote 
economic and entrepreneurial opportunities in communities.
    The risks associated with doing nothing are too dangerous. 
Our forests, communities, and citizens deserve better. Today we 
have the opportunity to make a true difference in the health of 
our forests, particularly our communities in and around 
forestland, something very beneficial for the public good that 
both sides of the aisle should rally around.
    H.R. 1904 applies to and helps all regions of the United 
States, including public and private lands. It protects 
forestland, it protects wildlife, it protects watersheds, it 
protects human life, and will positively impact rural 
communities, businesses, and schools.
    The President has made this a high priority. He addressed 
it during his State of the Union address. For these reasons, I 
strongly encourage Members to support the underlying 
legislation and to oppose all amendments.
    Thank you, Mr. Chairman.
    Mr. Cannon. Would the gentleman yield?
    Mr. Goodlatte. I would be happy to yield.
    Mr. Cannon. Thank you, Mr. Goodlatte.
    Let me just point out, as the Chairman of the Western 
Caucus, this is an issue of vital importance to America. We 
have 70 or 75 million acres that are ready to go up. The early 
assessments of fire vulnerability this year were low as of a 
few months ago, but at least in my State and also I believe in 
Idaho and several other States, we have had quite a wet spring. 
That has meant that we filled in a couple of these steps on the 
fire ladder so that if we get any kind of fires this year, they 
can be more devastating than last year. And the last year was 
the most devastating fire year in our recent history.
    This bill is vital that we move it quickly and not amend 
it. I think it is very, very important. Thank you. I yield 
back.
    [The prepared statement of Mr. Cannon follows:]
 Prepared Statement of the Honorable Chris Cannon, a Representative in 
                    Congress From the State of Utah
    Mr. Chairman, having represented Utah for more than three terms and 
serving now as Chairman of the Western Caucus in the House, I am 
particularly attuned to the problems faced by my state and other 
Western states with respect to catastrophic wildfires. I want to thank 
the Chairman for his attention to, and prompt action, on this important 
legislation.
    Mr. Chairman, for the people of Utah the threat of forest 
conflagrations is not a mere hypothetical possibility but rather a 
daily reality. More than 75 per cent of our state is, in fact, federal 
land . . . much of it forested and all of it subjected to the seasonal 
exigencies that make it particularly susceptible to the kind of 
catastrophic wildfires that we witnessed last year.
    Given the fact that man and nature must share this volatile 
landscape, intelligent management is an absolute necessity to preserve 
a beneficial environment for both. Inattention to the buildup of 
hazardous fuels in that environment represents a monumental danger that 
can lead to the destruction of entire communities and, in some cases, 
the loss of forests and watersheds from which it may take a century or 
more to recover. Intelligent management also requires that the agencies 
entrusted with the responsibility to oversee forested environments be 
given the power to act expeditiously to address building dangers.
    H.R. 1904 provides the tools and a proper administrative framework 
for federal land managers to deal with wildfire dangers. Public 
participation in hazardous fuel reduction projects is encouraged and 
administrative and judicial review is accelerated in recognition of the 
inherent danger to public safety.
    One of the principal responsibilities of the Congress is to provide 
for public protection and resource conservation. Mr. Chairman, H.R. 
1904 does just that at a time when recent events have so dramatically 
underscored the dangers to which our Western environment particularly 
is subject.
    I thank you, and commend you again, for your expeditious 
consideration of this legislation and urge its support.

    Mr. Goodlatte. Yield to the gentleman from Arizona.
    Mr. Flake. I just thank the gentleman for bringing this 
forward quickly. We in Arizona lost a half million acres last 
year; we stand to lose a lot more this year unless we do 
something, and in years to come. So this is important. It has 
been, as mentioned, a carefully crafted compromise. We worked 
it through the Resources Committee last week, and hope that we 
can speedily push it on from here. Thank you.
    Mr. Goodlatte. Mr. Chairman, I thank you. And I yield back.
    Chairman Sensenbrenner. Who on the minority side wishes to 
give an opening statement? The gentlewoman from Wisconsin, you 
have an opening statement? Well, if there is none, then, 
without objection, all Members may insert opening statements 
into the record at this point.
    [The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative 
                 in Congress From the State of Michigan
    I first would like to commend the Chairman for exercising the 
Committee's jurisdiction on this legislation. When introduced on May 1, 
the bill was referred only to the Agriculture and Resources Committees. 
This was despite the fact that it contained provisions governing the 
judicial review of cabinet department decisions, which would be in the 
jurisdiction of the Judiciary Committee. Just last week, after a series 
of letters from myself and from the Chairman, the bill was referred to 
this Committee, as well.
    Having said that, I have serious concerns with the provisions that 
are in our jurisdiction, provisions that are unprecedented in federal 
law and strip our judiciary of their independence. The bill imposes 
strict timelines on when decisions by the executive branch can be 
challenged and on when the court must act on such challenges. For 
example, a local community would have only fifteen days, including 
weekends, to challenge an Interior Department decision allowing 
controlled burns. A community would have to learn of the decision, 
review it, and agree to challenge it, and file the lawsuit all in that 
time period. Finally, the bill requires courts to notify congressional 
committees of decisions to extend injunctions that have been imposed on 
the government.
    While the independence of the judiciary is the prize of our 
democracy, restrictions such as these essentially convert the judicial 
branch into an arm of the executive. Alexander Hamilton said that the 
``independent spirit in the judges'' enables them to stand against the 
``ill humors of passing political majorities;'' legislation such as 
this demonstrates that today's passing political majority wants to use 
its ill humors to gut review of the Administration's environmental 
actions.
    I hope these provisions can be removed from the bill before it is 
reported out of the Committee.

    Chairman Sensenbrenner. Only sections 104 through 108 
inclusive are within the jurisdiction of the Judiciary 
Committee. And the Chair will only entertain amendments to 
those sections. Are there any amendments?
    Ms. Baldwin. Mr. Chairman, I have an amendment at the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment to H.R. 1904, offered by Ms. Baldwin.
    [The amendment follows:]
    
    
    Chairman Sensenbrenner. Point of order is reserved.
    The Clerk. Strike sections 104, 105, 106, and 107.
    Chairman Sensenbrenner. Does the gentleman persist in his 
point of order?
    Mr. Goodlatte. No, Mr. Chairman.
    Chairman Sensenbrenner. The gentleman withdraws his 
reservation. The gentlewoman from Wisconsin is recognized for 5 
minutes.
    Ms. Baldwin. Thank you, Mr. Chairman.
    While the bill's intent to reduce forest fires is laudable, 
I believe that this is the wrong approach. It contains 
provisions that are not only unnecessary but also unwise and 
unprecedented. Section 104 of this bill would effectively scrap 
the National Environmental Policy Act, or NEPA, which was 
landmark legislation. NEPA is the American public's guarantee 
of informed participation in Federal Government decisions that 
have an impact on public lands. NEPA operates not by requiring 
agencies adopt a particular course of action, but helps them 
combat tunnel vision by making them consider alternative 
approaches that could cause less environmental harm or produce 
greater environmental benefits.
    I understand that there is a need to act quickly in some 
high-priority fuel reduction projects, but section 104 simply 
goes too far by allowing the Forest Service to conduct large-
scale logging projects in areas of little risk without 
considering other options.
    Section 105 also gives the Forest Service a blank check in 
designing an appeals process. Conceivably, the agency could 
give citizens only a few days to participate in the appeals 
process, impose substantial filing fees, or allow projects to 
proceed before completion of the process. This section creates 
a completely undefined process. The American public deserves to 
know how their voice will be heard when it comes to projects 
that may be in their own communities.
    Sections 106 and 107 seek to restrict a core principle of 
our democracy, the right of Americans to seek redress in court 
for grievances involving the Federal Government. Section 106 
attempts to limit the amount of time the public has to file a 
legal challenge to a mere 15 days, and this time limit which 
counts weekend days and holidays, is not long enough for the 
public to grasp how projects will affect the land they live on, 
the water they drink, and the air they breathe. This 15-day 
deadline could also create a perverse incentive to file a 
lawsuit against projects, since failing to do so closes the 
courthouse door thereafter.
    Section 106 also attempts to place limitations on the time 
judges have to review cases and mandates they inform 
congressional Committees whenever they extend jurisdictions 
beyond 45 days. These new provisions should not be overlooked 
by those who say our court system is already overworked and 
overburdened.
    And, finally, section 107 seeks a change in American legal 
standards by requiring courts give deference to agency findings 
regarding the balance of harms in deciding whether to enter a 
temporary restraining order, preliminary injunction, or 
permanent injunction in any court challenge. The standard is 
unprecedented in any prior law and seems designed to allow 
Federal agencies to determine if its actions are in the public 
interest and, in effect, have the determination to be presumed 
valid in court.
    Based on my background of the Constitution's separation-of-
powers doctrine, this may well intrude upon the equitable 
powers of the judiciary. It is my understanding that the bill 
sponsor, Mr. McInnis, has agreed to modify this language to 
direct Federal judges to give only special weight to agency 
claims instead of deference. This would still be unacceptable. 
Judges should not be prohibited from exercising their own 
judgments in matters that affect the public health and our 
natural resources.
    So I urge my colleagues to accept this amendment to strike 
sections 104 through 107 from this bill, and yield back.
    Mr. Goodlatte. Mr. Chairman.
    Chairman Sensenbrenner. The gentleman from Virginia.
    Mr. Goodlatte. Thank you, Mr. Chairman. I move to strike 
the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Goodlatte. I thank the Chairman, And I speak in strong 
opposition to this amendment. The provisions that the 
gentlewoman would strike are absolutely critically important to 
this legislation. As the gentleman from Utah noted, we are 
heading into the fire season. And one of the things that needs 
to be done is to make sure that sensitive areas in our forests 
are properly treated, thinned and other things done, to make 
sure that we have natural fires that occur on the ground and 
not these catastrophic wildfires that you have seen on the news 
for the last few years that consume entire forests and 
thousands of acres.
    While the difference between the one and the other is the 
ability to proceed administratively in a reasonable and timely 
fashion, this legislation creates a reasonable process under 
which the Forest Service can go forward with public comment, 
with administrative appeal, with the right to bring the action 
into court, but in a more timely fashion. It does some very 
commonsense things, like requiring that an individual who 
objects to a forest plan--and believe me, there are individuals 
who object to any kind of ground-disturbing activity of any 
kind by the Forest Service--they can file an appeal and not 
raise the key issues in the process until late in the process 
when it goes to court. That is not the normal judicial legal 
procedure, where, if you are engaged in a trial, you have to 
put all your evidence and all your law on the table in the 
trial; and, if you want to appeal it, you have to appeal based 
upon the record of the trial. Right now, in a Forest Service 
appeal, you don't need to do that. You can wait until you get 
to court to raise de novo issues, brand-new issues in what is 
effectively the appellate process.
    What this has done is turned the management of our forests 
away from the forest professionals and toward the management of 
the forests by our courts, a very, very bad thing; has caused 
tremendous problems, particularly in the West but it has spread 
to include errant judicial decisions in other parts of the 
country as well. Let's present to the courts a judicial 
foundation, a record on which they can make their decision.
    In addition, what this does is it makes the process more 
compact. And that is important, because if you are trying to 
get in to deal with a disease or insect infestation, a 
particularly severe problem in the eastern and southern United 
States, by the time you have been through the current process--
and, by the way, this does not eliminate NEPA by any means. But 
by the time you get through current process, it is too late.
    This bill only applies to 250,000 acres out of the hundreds 
of millions of acres owned by the Forest Service with regard to 
the insect and disease infestation issue. And with regard to 
fighting forest fires, it only applies to 20 million of those 
hundreds of millions of acres. So, in effect, it is a good way 
to get at the most severe places, and also a good way to show 
that this is a better process than the one that we have been 
using in the past that can grind on for years, leaving these 
forests untended and continuing to allow these catastrophic 
wildfires.
    So I urge my colleagues to oppose this amendment.
    Mr. Cannon. Would the gentleman yield?
    Mr. Goodlatte. I would be happy to yield.
    Mr. Cannon. Thank you. I may ask for my own time later on, 
but let me just point out that what we are doing in this bill 
is quite limited and very thoughtful. This is not like the 
elimination of judicial review that happened as to the Black 
Forest in legislation that was inserted last year in 
appropriations language that actually totally denied the NEPA 
process. Many of us think that something like that would be 
appropriate because of the magnitude of the problem that we are 
faced with right now. But what we are doing here is actually 
maintaining a process and maintaining much of what we have 
learned that is good in the NEPA and other bills. But the 
limitations are significant in that it allows the Federal 
Government to do something this year while we have a crisis, 
and hopefully prevent that, and get back to a different kind of 
process.
    But the key thing here is that we are not doing a draconian 
thing like prohibiting judicial review of these kinds of 
decisions. That has happened, there is precedent for that, 
there is good reason for that, and we may need to come back and 
take a look at that kind of approach. Thank you.
    Mr. Goodlatte. I yield back, Mr. Chairman.
    Mr. Watt. Mr. Chairman.
    Chairman Sensenbrenner. The gentleman from North Carolina.
    Mr. Watt. I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Watt. Can I just ask Mr. Goodlatte a question about the 
language on page 17, lines 6 through 14; if he might be able to 
tell me what that means and why we would be putting such a 
provision as that into statute?
    Mr. Goodlatte. Well, as I mentioned in my remarks just a 
few minutes ago, one of the purposes of this legislation is to 
make sure that because of the emergency nature of treating 
these acres, the acres most subject to catastrophic wildfire, 
if you can't get to them quickly, then the wildfires occur, the 
devastation occurs, and the legislation doesn't do any good. So 
this is simply a directive to our courts to expeditiously 
handle the appeals process.
    Mr. Watt. I think I could understand a directive, but I 
don't read this to be a directive. It says Congress intends and 
encourages any court in which is filed a lawsuit or appeal to 
do certain things and to dispose of it timely, within 100 days. 
But I don't see any directive there. And I guess the question I 
am raising is whether we are just leaving--I mean, without a 
directive or something--without a directive, if a directive is 
appropriate, it just seems to me that we are leaving pretty 
much the state of law as it is. And I don't know, I don't think 
I have seen a statute that encourages the courts to do 
something. I mean, if we think it is so important, why wouldn't 
we direct it?
    Mr. Goodlatte. Would the gentleman yield?
    Mr. Watt. I yield, yeah.
    Mr. Goodlatte. I thank the gentleman for yielding. The 
gentleman is quite correct that this is different than a number 
of other provisions in the bill that do direct the courts to a 
different process. This one gives the courts some more 
flexibility. There might be some circumstances in which they 
might need to exceed the 100 days. Therefore, without trying to 
tie them too closely and trying to define a circumstance that 
in some instances might be unworkable, we strongly encourage 
them to get these done within 100 days. But we do not require 
it.
    Mr. Watt. Well, just reclaiming my time. I guess I am 
ambivalent about this. I mean, obviously every lawsuit that 
gets into court, you would like for the court to expedite it. 
And there are some cases where we direct the courts to 
expedite. But I confess, I have not seen a provision quite like 
this one that says we would like for you to do it but we are 
not going to direct you to do it, which basically says nothing.
    Mr. Goodlatte. Would the gentleman yield further on that 
point?
    Mr. Watt. Yes. I would be happy to yield.
    Mr. Goodlatte. If the gentleman would turn his attention to 
the preceding page, page 16.
    Mr. Watt. You mean you did it again and I missed it?
    Mr. Goodlatte. No, no. Not at all. And I think this will 
help clarify the situation. Section 106(b)(1) makes a 45-day 
action on injunctions a requirement. The court must act within 
that time. The reason is that, with an injunction, that is a 
complete holdup on taking any action on treating the land.
    Mr. Watt. And I take it that provision is contrary to other 
provisions in the law related to injunctions?
    Mr. Goodlatte. That provision is a specific directive.
    Mr. Watt. But it is different than other general injunctive 
law in terms of its time frames.
    Mr. Goodlatte. I am sure there are different provisions in 
other sections of the law. This is 45 days to get at the issue 
of whether one can proceed. The court has 45 days to make that 
determination. We would like to get to the underlying final 
decision expeditiously as well, but that is not as critical. 
Therefore, we ask them to do it in 100 days but we don't 
require it. The 45 days, the initial finding on whether action 
is emergent in nature and therefore needs to take place 
expeditiously, that is mandated in this bill.
    Mr. Watt. Can I ask one other question? Has there been any 
hearings about this part of the bill that is under the 
Judiciary Committee's jurisdiction?
    Mr. Goodlatte. There have been numerous hearings on this 
legislation in both the Resources Committee and in the 
Agriculture Committee.
    Mr. Watt. I want to know whether there have been any 
hearings on the part of the bill that is under the jurisdiction 
of the Judiciary Committee.
    Chairman Sensenbrenner. Will the gentleman from North 
Carolina yield?
    Mr. Watt. Yes, I will yield.
    Chairman Sensenbrenner. We got this bill last Friday when 
the other Committee filed its report. The sequential that was 
given to us by the Speaker expires on Friday of this week. 
There really hasn't been time for a hearing. And if we don't do 
a markup, then we lose jurisdiction and the bill goes out on 
the floor. The gentleman's time has expired.
    Mr. Watt. Can I ask unanimous consent for just 30 
additional seconds?
    Chairman Sensenbrenner. Without objection.
    Mr. Watt. And I think the problem I am having here, Mr. 
Chairman, is the tail seems to be wagging the dog here. 
Whenever we get a directive from the Speaker to do something 
that is inconsistent with our responsibilities as Members of 
this Committee, it just seems we go running around and doing 
things that have not been well thought out.
    Chairman Sensenbrenner. If the gentleman will yield. The 
Chair fought to get a sequential to this Committee. The Speaker 
and the other Committees did not want this Committee to have a 
sequential at all.
    Mr. Watt. And, Mr. Chairman, I have----
    Chairman Sensenbrenner. I got us a week, and we are doing 
what we can in the time that is available.
    Mr. Watt. I am not blaming the Chair, Mr. Chairman. I am 
sure you did whatever you could, but all you did was get us 
time to go through an irrational process that legitimizes 
irrationality. And we don't have any idea whether these 
timetables are consistent with what is reasonable under the 
law. And without some kind of hearings to hear the arguments on 
both sides or another, I honestly don't know whether I side 
with Ms. Baldwin or Mr. Goodlatte.
    Chairman Sensenbrenner. Well, if the gentleman will yield 
further. If we delay, as of Friday this bill floats away from 
us and goes out on the floor. You know, that is what the rules 
are. The gentleman's time has expired again.
    Ms. Lofgren. Mr. Chairman.
    Chairman Sensenbrenner. The gentlewoman from California.
    Ms. Lofgren. I move to strike the last word.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Lofgren. I support the amendment, and I would like to 
go beyond the issues raised by my colleague from North 
Carolina, which is into the structure of the bill that is not 
specifically before us but that does relate to us, because it 
relates to the type of judicial review. You know, we learned 
that Smoky the Bear actually didn't do America any favors 
because we built up a tremendous amount of dead wood in 
America's forests. I have forests near my district, and we all 
are aware that this is an issue that needs to be dealt with. 
But all of the good science indicates that the way to address 
that is to remove the undergrowth and the small trees in a plan 
that should be vigorously funded and accomplished, and not to 
go after the older trees; and that older trees that rot should 
be allowed to rot into the forest for the health of the forest.
    And, unfortunately, if you take a look at the other parts 
of the bill--you know, why didn't I think of that? We are 
against forest fires, so let us cut down all the trees. I mean, 
what a solution. That is basically what the Interior Department 
is prepared to do. I think it is very clear that they are in 
the pocket of the logging companies. And the only--the way this 
is crafted, the only protection that Americans are going to get 
from the logging companies that have captured the 
Administration and the Interior Department is in the judiciary. 
And what this part of the bill does is eliminate even that 
protection for the American people and the forests for the 
future of this country.
    So I think this is pretty outrageous. I hope that all 
Members will vote no. And I would yield to the gentleman from 
North Carolina.
    Mr. Watt. I thank the gentlelady for yielding.
    The point I want to make is much, much narrower than the 
one she is making. I would agree that maybe other Committees 
ought to be the Committees that make these decisions about how 
you control forest fires and the public policy considerations. 
But when it comes to our Committee--and then they say let us 
prostitute the courts to achieve whatever our objectives are or 
prostitute the process to achieve whatever our objectives are--
then I think it is our Committee's responsibility to look at 
whether the process is rational, the timing is rational. And I 
don't think we can do that in good faith to the American people 
and say that we as the Judiciary Committee have done our job 
appropriately, regardless of how we come out on those issues, 
without having the time to do it.
    And so I think we end up appearing that we are just 
engaging in a charade that--and that is not an indictment of 
the Chairman--the Chairman probably got what he could--but it 
is an indictment of the way we are running this place around 
here that says that whatever the bottom line the leadership 
decides is important is more important than the democratic and 
legislative process under which we are operating.
    And I yield back. And for that reason, I am going to vote 
for Ms. Baldwin's amendment just because I don't think that--
she takes these provisions out, and it seems to me that that is 
a better alternative than going through a charade of a process 
to change the process by which the court considers all of these 
things.
    I will yield back to the gentlewoman.
    Ms. Lofgren. I thank the gentleman. I would just note 
that--and I do appreciate the Chairman's fight for our 
jurisdiction. I think all Members appreciate the fact that he 
has been aggressive in protecting our jurisdiction. But when 
you look at the scope of the review in addition to now the 
constraint of time, this is just a carte blanche to logging 
companies to wipe out forests. And I hope that Members will 
vote no.
    And I yield back the balance of my time.
    Mr. Conyers. Mr. Chairman.
    Chairman Sensenbrenner. The gentleman from Michigan.
    Mr. Conyers. I rise to strike the last.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Conyers. This is troublesome legislation. I commend the 
Chairman for fully exercising the Chair's ability for us to 
even be considered in this log-rolling process.
    Now, so what are we to do this Monday morning? And that is 
the question. And the question is that if we don't act now, 
what little license we have been granted will be removed. And 
so with all due respect, Mr. Chairman, I would like to 
recommend that we both hold hearings and have a markup all 
between now and Thursday afternoon when we depart from this 
place. It may crowd our schedules, but that is what the 
majority leader has foisted on us.
    Mr. Watt. Would the gentleman yield just for a question?
    Mr. Conyers. Of course.
    Mr. Watt. Would just as acceptable an alternative not be to 
accept Ms. Baldwin's amendment and consider those parts of the 
bill separately in a time frame that we could act on? If the 
bill doesn't have the provisions in the bill, then they are not 
going to go to the floor for consideration. So it seems to me 
that that would be an alternative, too, although I am not--I am 
just thinking as we go along here.
    Mr. Conyers. No, I appreciate that, Mr. Watt, and I think 
that is perfectly acceptable. What we have to do to give 
additional support to the Chair of Judiciary is that they can't 
keep running this crap on us. You know, once we do this, what 
will it be next week or whenever?
    So all I am suggesting is that somehow we craft a way--what 
I am proposing, that the Chair--and if we need a few minutes on 
this, I would be happy to accede to a recess. But between my 
proposal and the gentleman from North Carolina's proposal, at 
least we will retain as much integrity for the Committee as is 
possible under this circumstance. I have no reason not to want 
to accept the Baldwin amendment, but of course that is giving 
people about as much notice as the leadership gave us.
    So, what do you think, Mr. Chairman? I yield to you.
    Chairman Sensenbrenner. Sensenbrenner's law says this: When 
one puts snout in trough too far, one runs the risk of getting 
head chopped off.
    My fear is--first of all, it is a given that there will be 
no extensions given on this sequential referral. I think that 
we are doing what we can in the time that we have available to 
us, and everybody will have a chance to put their views into a 
Committee report and that will be available to the Members when 
the bill comes to the floor next week.
    Also, the Rules Committee, I am sure, will entertain 
amendments to make either the Baldwin amendment or something 
similar to that in order when the bill comes up.
    Mr. Conyers. Unfortunately, my experience with the Rules 
Committee runs exactly counter to that proposal. But maybe you 
know something that I don't.
    Now, back to the Conyers proposal, which is this: Is that 
we hold hearings tomorrow; that we hold a markup either later 
that day, and we--and then we report the bill. I don't see why 
we can't do that. But to do this without a single witness--and, 
by the way, I have counted the makeup of the Committee. So, I 
mean, this is almost like a double whammy. I mean, first the 
leadership does it to us, and then in a Committee that is made 
up of 21/16, we act like we are trying, really trying to figure 
out how this is going to work out, when most of the votes in 
this Committee normally run in a very partisan----
    Chairman Sensenbrenner. The gentleman's time has expired. 
The gentleman from Virginia.
    Mr. Scott. Mr. Chairman, move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Scott. Mr. Chairman, I want the record to be clear that 
this Member, and I assume a lot of others, want to express our 
appreciation for you fighting for the little bit of 
jurisdiction that we got. But as the gentleman from Michigan 
indicated, it is very difficult under these constraints to do 
the kind of work that we need to do. So I would hope that we 
adopt the suggestion from the gentleman from Michigan, and I 
yield to him for any comments that he might have.
    Mr. Conyers. Thank you, Mr. Scott.
    Well, this bill was introduced on May 1, referred to the 
Agriculture Committee, despite the fact that it contained 
provisions governing the judicial review of Cabinet department 
decisions, which are within the jurisdiction of the Committee 
on Judiciary. Last week, after communications back and forth 
from the Chairman and myself, the bill was referred to this 
Committee as well.
    Now, there are serious concerns with the provisions that 
are in our jurisdiction, provisions unprecedented in law, and 
that in effect strip the judiciary of its independence by 
imposing time lines on decisions by the executive branch which 
can be challenged when the court must act on such challenges.
    An example: A local community has 15 days, including 
weekends, to challenge an Interior Department decision allowing 
controlled burns. They may not be able to even get into court 
in that short length of time, much less be prepared. A 
community would have to learn of these decisions, review it, 
agree to challenge it, get a lawyer, file a lawsuit, all within 
that time period.
    Now, this should insult the integrity of every lawyer on 
this Committee and everyone that is not a lawyer. And then it 
requires courts to notify the congressional Committees of 
decisions to extend injunctions that have been imposed on the 
Government.
    Mr. Cannon. Would the gentleman yield?
    Mr. Conyers. Of course.
    Mr. Cannon. I thank my friend. Two points that are, I 
think, important. In the first place, let me just remind the 
gentleman that we have a crisis coming. We are now----
    Mr. Conyers. Which crisis?
    Mr. Cannon. We have a particular fire crisis coming, and we 
also have a concern about the probity of what we do in this 
Committee. But we have, and now in Utah, grass that is a couple 
feet high. We are in the middle of May.
    Mr. Conyers. But are you saying that that means that we 
can't hold a hearing?
    Mr. Cannon. It is----
    Mr. Conyers. Between today and tomorrow? If it is so 
urgent, my friend, if it is so urgent, why don't we all adjust 
our schedules accordingly? I mean, what are you talking about? 
It is urgent, but yet we shouldn't have a hearing.
    Mr. Cannon. My point, sir, is that the bill needs to move. 
And the second part----
    Mr. Conyers. And that is my point, too. Wait a minute. I am 
for the bill moving. I am not trying to delay the bill. I am 
talking about today and tomorrow. What are you doing? It is 
your State. It is your fire disaster. Don't you think the rest 
of your colleagues ought to have a hearing and listen to 
somebody tell us about this? You don't. And I retake my time. 
That is it. Thank you.
    I also have a statement in support of the Baldwin amendment 
that I would like to introduce into the record.
    Chairman Sensenbrenner. Without objection.
    [The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative 
                 in Congress From the State of Michigan
    I support this amendment, which strikes out the provisions of the 
bill that, with one hand, give the executive branch unchecked 
administrative power and, with the other, take away the rights of 
citizens and the independence of our judiciary.
    Sections 104 and 105 of the bill give the executive branch 
virtually unchecked authority to establish administrative review and 
appeals procedures. For example, section 105 gives the Agriculture 
Secretary a blank check for streamlining the process for administrative 
appeals of agency determinations. The Secretary would not even be 
required to read any comments that might be filed with the Department.
    Sections 106 and 107 intrude on the rights of litigants and the 
courts by imposing rigid deadlines for filing court challenges to and 
ruling upon agency decisions. Section 106 says any lawsuit to challenge 
a decision by an agency must be filed within 15 days of the issuance of 
that decision. If the government issues a rule allowing a controlled 
burn of trees, a local community near that area would have 15 days, 
including weekends and holidays, to hear of the decision, review it, 
and file a lawsuit challenging it.
    Moreover, these provisions could have ramifications far beyond this 
bill. First, to comply with the rigid deadlines of the legislation, 
courts would have to put on hold any cases dealing with civil rights, 
workers' rights, civil liberties, etc. Second, such egregious and anti-
plaintiff proposals set a dangerous precedent for giving undue 
deference to agency decisions on civil rights matters.
    I urge my colleagues to support this amendment.

    Mr. Conyers. And I return my time.
    Chairman Sensenbrenner. The question is on the Baldwin 
amendment. Those in favor will say aye.
    Mr. Conyers. Record vote.
    Chairman Sensenbrenner. Opposed, vote no.
    The noes appear to have it.
    Ms. Baldwin. rollcall.
    Chairman Sensenbrenner. rollcall will be ordered.
    Those in favor of the amendment by the gentlewoman from 
Wisconsin will, as your names are called, answer aye.
    Those opposed, no.
    And the clerk will call the roll.
    The Clerk. Mr. Hyde.
    [No response.]
    The Clerk. Mr. Coble.
    Mr. Coble. No.
    The Clerk. Mr. Coble votes no.
    Mr. Smith.
    [No response.]
    The Clerk. Mr. Gallegly.
    Mr. Gallegly. No.
    The Clerk. Mr. Gallegly, no.
    Mr. Goodlatte.
    Mr. Goodlatte. No.
    The Clerk. Mr. Goodlatte, no.
    Mr. Chabot.
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no.
    Mr. Jenkins.
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no.
    Mr. Cannon.
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no.
    Mr. Bachus.
    Mr. Bachus. No.
    The Clerk. Mr. Bachus, no.
    Mr. Hostettler.
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no.
    Mr. Green.
    Mr. Green. No.
    The Clerk. Mr. Green, no.
    Mr. Keller.
    Mr. Keller. No.
    The Clerk. Mr. Keller, no.
    Ms. Hart.
    Ms. Hart. No.
    The Clerk. Ms. Hart, no.
    Mr. Flake.
    [No response.]
    The Clerk. Mr. Pence.
    Mr. Pence. No.
    The Clerk. Mr. Pence, no.
    Mr. Forbes.
    [No response.]
    The Clerk. Mr. King.
    Mr. King. No.
    The Clerk. Mr. King, no.
    Mr. Carter.
    Mr. Carter. No.
    The Clerk. Mr. Carter, no.
    Mr. Feeney.
    Mr. Feeney. No.
    The Clerk. Mr. Feeney, no.
    Mrs. Blackburn.
    Mrs. Blackburn. No.
    The Clerk. Mrs. Blackburn, no.
    Mr. Conyers.
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers, aye.
    Mr. Berman.
    [No response.]
    The Clerk. Mr. Boucher.
    [No response.]
    The Clerk. Mr. Nadler.
    [No response.]
    The Clerk. Mr. Scott.
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye.
    Mr. Watt.
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye.
    Ms. Lofgren.
    Ms. Lofgren. Aye.
    The Clerk. Ms. Lofgren, aye.
    Ms. Jackson Lee.
    [No response.]
    The Clerk. Ms. Waters.
    Ms. Waters. Aye.
    The Clerk. Ms. Waters, aye.
    Mr. Meehan.
    Mr. Meehan. Aye.
    The Clerk. Mr. Meehan, aye.
    Mr. Wexler.
    Mr. Wexler. Aye.
    The Clerk. Mr. Wexler, aye.
    Ms. Baldwin.
    Ms. Baldwin. Aye.
    The Clerk. Ms. Baldwin, aye.
    Mr. Weiner.
    Mr. Weiner. Aye.
    The Clerk. Mr. Weiner, aye.
    Mr. Schiff.
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye.
    Ms. Sanchez.
    Ms. Sanchez. Aye.
    The Clerk. Ms. Sanchez, aye.
    Mr. Chairman.
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. Are there additional Members who 
wish to cast or change their votes? The gentleman from New 
York, Mr. Nadler.
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler, aye.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their votes? If not, the clerk will report.
    The Clerk. Mr. Chairman, there are 12 ayes and 17 noes.
    Chairman Sensenbrenner. The amendment is not agreed to.
    Are there further amendments? If there are no further 
amendments, a reporting quorum is present.
    The question occurs on the motion to report the bill, H.R. 
1904, favorably.
    Those in favor will say aye.
    Opposed, no.
    The ayes appear to have it.
    Mr. Conyers. Record vote.
    Chairman Sensenbrenner. A rollcall will be ordered.
    Those in favor of reporting H.R. 1904 favorably will, as 
your names are called, answer aye.
    Those opposed, no.
    And the clerk will call the roll.
    The Clerk. Mr. Hyde.
    [No response.]
    The Clerk. Mr. Coble.
    Mr. Coble. Aye.
    The Clerk. Mr. Coble, aye.
    Mr. Smith.
    [No response.]
    The Clerk. Mr. Gallegly.
    Mr. Gallegly. Aye.
    The Clerk. Mr. Gallegly, aye.
    Mr. Goodlatte.
    Mr. Goodlatte. Aye.
    The Clerk. Mr. Goodlatte, aye.
    Mr. Chabot.
    Mr. Chabot. Aye.
    The Clerk. Mr. Chabot, aye.
    Mr. Jenkins.
    Mr. Jenkins. Aye.
    The Clerk. Mr. Jenkins, aye.
    Mr. Cannon.
    Mr. Cannon. Aye.
    The Clerk. Mr. Cannon, aye.
    Mr. Jenkins. Aye.
    The Clerk. Mr. Jenkins, aye.
    Mr. Bachus.
    [No response.]
    The Clerk. Mr. Hostettler.
    Mr. Hostettler. Aye.
    The Clerk. Mr. Hostettler, aye.
    Mr. Green.
    Mr. Green. Aye.
    The Clerk. Mr. Green, aye.
    Mr. Keller.
    Mr. Keller. Aye.
    The Clerk. Mr. Keller, aye.
    Ms. Hart.
    Ms. Hart. Aye.
    The Clerk. Ms. Hart, aye.
    Mr. Flake.
    [No response.]
    The Clerk. Mr. Pence.
    Mr. Pence. Aye.
    The Clerk. Mr. Pence, aye.
    Mr. Forbes.
    [No response.]
    The Clerk. Mr. King.
    Mr. King. Aye.
    The Clerk. Mr. King, aye.
    Mr. Carter.
    Mr. Carter. Aye.
    The Clerk. Mr. Carter, aye.
    Mr. Feeney.
    Mr. Feeney. Aye.
    The Clerk. Mr. Feeney, aye.
    Mrs. Blackburn.
    Mrs. Blackburn. Aye.
    The Clerk. Mrs. Blackburn, aye.
    Mr. Conyers.
    Mr. Conyers. No.
    The Clerk. Mr. Conyers, no.
    Mr. Berman.
    [No response.]
    The Clerk. Mr. Boucher.
    [No response.]
    The Clerk. Mr. Nadler.
    Mr. Nadler. No.
    The Clerk. Mr. Nadler, no.
    Mr. Scott.
    Mr. Scott. No.
    The Clerk. Mr. Scott, no.
    Mr. Watt.
    Mr. Watt. No.
    The Clerk. Mr. Watt, no.
    Ms. Lofgren.
    Ms. Lofgren. No.
    The Clerk. Ms. Lofgren, no.
    Ms. Jackson Lee.
    Ms. Jackson Lee. No.
    The Clerk. Ms. Jackson Lee, no.
    Ms. Waters.
    Ms. Waters. No.
    The Clerk. Ms. Waters, no.
    Mr. Meehan.
    Mr. Meehan. No.
    The Clerk. Mr. Meehan, no.
    Mr. Delahunt.
    [No response.]
    The Clerk. Mr. Wexler.
    Mr. Wexler. No.
    The Clerk. Mr. Wexler, no.
    Ms. Baldwin.
    Ms. Baldwin. No.
    The Clerk. Ms. Baldwin, no.
    Mr. Weiner.
    Mr. Weiner. No.
    The Clerk. Mr. Weiner, no.
    Mr. Schiff.
    Mr. Schiff. No.
    The Clerk. Mr. Schiff, no.
    Ms. Sanchez.
    Ms. Sanchez. No.
    The Clerk. Ms. Sanchez, no.
    Mr. Chairman.
    Chairman Sensenbrenner. Aye.
    The Clerk. Mr. Chairman, aye.
    Chairman Sensenbrenner. Additional Members who wish to cast 
or change their vote? The gentleman from Texas, Mr. Smith.
    Mr. Smith. Vote aye.
    The Clerk. Mr. Smith, aye.
    Chairman Sensenbrenner. The gentleman from Alabama, Mr. 
Bachus.
    Mr. Bachus. Aye.
    The Clerk. Mr. Bachus, aye.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their vote? If not, the clerk will report.
    The Clerk. Mr. Chairman, there are 18 ayes and 13 nays.
    Chairman Sensenbrenner. And the motion to report favorably 
is agreed to. Without objection, the Chairman is authorized to 
move to go to conference pursuant to House rules. Without 
objection, the staff is directed to make any technical and 
conforming changes, and all Members will be given 2 days, as 
provided by House rules, in which to submit dissenting 
supplemental or minority views.
                            Dissenting Views

    We support initiatives to protect our communities from the 
threat of wildfires. We dissent from H.R. 1904, the ``Healthy 
Forests Restoration Act of 2003,'' because that is not what 
this legislation would do. The bill, in the guise of limiting 
an alleged boom in dilatory challenges of government measures 
to reduce wildfire threats,\1\ instead gives the executive 
branch unfettered administrative discretion to implement land 
management decisions, deters administrative and Federal court 
reviews of such actions, harms plaintiffs' rights, and intrudes 
on the independence of our courts.\2\
---------------------------------------------------------------------------
    \1\ The White House, Healthy Forests: An Initiative for Wildfire 
Prevention and Stronger Communities (Aug. 22, 2002). Available at: 
http://www.whitehouse.gov/infocus/healthyforests/Healthy--Forests--
v2.pdf.
    \2\ See H.R. 1904, Sec. Sec. 104-107. At the full Committee markup 
on the bill, Rep. Tammy Baldwin (D-WI) offered an amendment that would 
have struck the objectionable sections, but the Majority unfortunately 
rejected it. See Markup of H.R. 1904, House Comm. on the Judiciary, 
108th Cong., 2d Sess. (May 14, 2003) [hereinafter H.R. 1904 Markup].
---------------------------------------------------------------------------
    Such provisions are even more egregious considering that 
the General Accounting Office has found few, if any, delays in 
the implementation of projects to reduce wildfire threats.\3\ 
As stated earlier, the alleged existence of such delays was the 
rationale for these provisions. It is for these reasons that 
H.R. 1904 is opposed by numerous organizations concerned with:
---------------------------------------------------------------------------
    \3\ See, e.g., Few Wildfire Project Delays, GAO Finds, Wash. Post, 
May 15, 2003, at A27 (``The conclusion [of the General Accounting 
Office report] runs counter to the case the Bush administration and 
Republicans in Congress have made for scaling back studies and 
appeals.'').

        (1) Lthe enforcement of our environmental laws 
        (including the Natural Resources Defense Council 
        (NRDC), The Wilderness Society, Friends of the Earth, 
        the Endangered Species Coalition, the National Audobon 
        Society, the World Wildlife Fund (WWF), American Lands 
        Alliance, Defenders of Wildlife, EarthJustice, the 
        Center for Biological Diversity, the National 
        Environmental Trust, the Sierra Club, the National 
        Forest Protection Alliance, and the U.S. Public 
        Interest Research Group).\4\
---------------------------------------------------------------------------
    \4\ Letter from Natural Resources Defense Council et al., to U.S. 
Representatives (May 8, 2003) [hereinafter NRDC Letter].

        (2) Lthe fair administration of justice and the 
        enforcement of our civil rights laws (including ADA 
        Watch/National Coalition for Disability Rights, 
        Alliance for Justice, Americans for Democratic Action, 
        the Bazelon Center for Mental Health Law, the Mexican 
        American Legal Defense and Educational Fund (MALDEF), 
        the National Association for the Advancement of Colored 
        People (NAACP), National Alliance of Postal and Federal 
        Employees, the National Organization for Women (NOW), 
        People for the American Way, Planned Parenthood 
        Federation of America, and the Religious Coalition for 
        Reproductive Choice); \5\ and
---------------------------------------------------------------------------
    \5\ Letter from ADA Watch et al., to U.S. Representatives (May 13, 
2003) [hereinafter ADA Watch Letter].
---------------------------------------------------------------------------

A. THE LEGISLATION WOULD GIVE UNCHECKED ADMINISTRATIVE AUTHORITY TO THE 
                            EXECUTIVE BRANCH

    A primary concern with H.R. 1904 is that it proposes to 
give the executive branch virtually unchecked authority to 
implement decisions and to consider administrative appeals of 
such decisions. For instance, the bill empowers the relevant 
cabinet department by stating it would no longer be required to 
consider any alternatives to an original proposal when issuing 
forest-related decisions.\6\ The heart of the environmental 
analysis process is for the agency to consider alternatives to 
its plans so that the best plan can be chosen; \7\ this bill 
essentially turns that concept on its head and says that an 
agency's first idea is the best idea.
---------------------------------------------------------------------------
    \6\ H.R. 1904, Sec. 104(b).
    \7\ NRDC Letter. See also Letter from Lois Schiffer, Adjunct Prof. 
of Environmental Law, Georgetown University Law Center, et al., to the 
Honorable James Hansen, Chairman, House Comm. on Resources, & the 
Honorable Scott McInnis, Chairman, House Subcomm. on Forests & Forest 
Health (Oct. 7, 2002) (analyzing similar provision in earlier, yet 
similar, legislation).
---------------------------------------------------------------------------
    The legislation goes further and gives agencies additional 
power in quashing administrative appeals of their decisions. 
Current law, in the form of the Appeals Reform Act, imposes 
strict requirements on the process for administrative appeals 
of U.S. Forest Service decisions, such as letting public 
participants submit written or oral comments, requiring Forest 
Service employees to offer to meet with any individual who 
files an appeal, and the triggering of an automatic 45-day stay 
of Forest Service decisions.\8\ The bill explicitly vitiates 
these protections, such that the Forest Service would be 
empowered not only to dismiss certain public comments and the 
individuals who submit them but also to proceed with its plans 
immediately.\9\
---------------------------------------------------------------------------
    \8\ 16 U.S.C. 1612 note.
    \9\ See H.R. 1904, Sec. 105(c).
---------------------------------------------------------------------------

       B. THE LEGISLATION WOULD HARM PLAINTIFFS' RIGHTS AND TIE 
                        THE HANDS OF THE COURTS

    In addition, the legislation would restrict the rights of 
all Federal court plaintiffs and subject Federal courts to 
rigid deadlines. The bill's requirement that any actions filed 
against the United States to challenge hazardous fuels 
reduction projects be filed within fifteen days (including 
weekends and holidays) of the final notice of such projects 
would make it impossible to seek redress for improper or 
illegal agency decisions.\10\ Moreover, the bill expressly 
provides that neither the government nor a court could waive 
the filing deadline under any circumstance.\11\ As a result, if 
the government issues a decision authorizing an entity to 
conduct a controlled burn or cut timber in a certain wooded 
area, a community living near that wooded area would have 
fifteen days to learn of the decision, determine what it does, 
determine whether it affects the community's residents, decide 
whether to file a legal action, retain an attorney, prepare the 
legal documents, and file the action against the entity that is 
exercising the decision. The fifteen-day deadline would apply 
regardless of weekends, holidays, or even in the event the 
residents of the community were evacuated from their homes 
because of some emergency.
---------------------------------------------------------------------------
    \10\ H.R. 1904, Sec. 106(a).
    \11\ Id.
---------------------------------------------------------------------------
    Moreover, the fifteen-day limitation would apply to every 
other Federal law. More specifically, it would supercede any 
other provision in any law that pertains to notices of intent 
to file suit or to filing deadlines.\12\ For example, at least 
sixty days before filing a citizen suit against an entity for 
non-compliance with the Clean Water Act, notice must be given 
to the government and the potential defendant.\13\ Under this 
bill, if a community determined that a hazardous fuels 
reduction project violated the Clean Water Act, it would have 
only fifteen days to file suit instead of the minimum sixty 
days it has under current law.
---------------------------------------------------------------------------
    \12\ Id.
    \13\ 33 U.S.C. Sec. 1365(b). Such notice requirements also apply to 
citizen suits under the Safe Drinking Water Act (42 U.S.C. 300j-8(b)); 
the Clean Air Act (42 U.S.C. 7604(b)); the Resource Conservation and 
Recovery Act (42 U.S.C. 6972(b)); and the Comprehensive Environmental 
Response, Compensation and Liability Act (42 U.S.C. 9659(d)).
---------------------------------------------------------------------------
    The bill also seeks to impose unprecedented deadlines that 
would tie the hands of the courts and relegate unrelated, yet 
important, cases to the bottom of the pile. In suggesting that 
courts issue rulings on lawsuits and appeals on cases arising 
under the bill within 100 days of the initial filing date, 
section 106(c) virtually holds courts hostage to agency timing. 
Such a deadline also would place hazardous fuels reduction 
project lawsuits above all other Federal cases on the dockets, 
as the reduction project lawsuits would be considered first. 
This means that all other Federal cases, including those 
pertaining to terrorism, criminal violations, civil rights law, 
worker rights, and employment discrimination, would be delayed 
in favor of cases arising under this legislation.\14\ It is not 
surprising, then, that the courts have noted that ``individual 
actions within a category of cases inevitably have different 
needs of priority treatment, which are best determined on a 
case-by-case basis.'' \15\
---------------------------------------------------------------------------
    \14\ See ADA Watch Letter.
    \15\ S. 220, the ``Bankruptcy Reform Act,'' 2001: Hearings on S. 
220 Before the Senate Comm. on the Judiciary, 107th Cong., 1st Sess. 
(2001) (statement of the Honorable Edward R. Becker, Chief Judge of the 
U.S. Court of Appeals for the Third Circuit, on behalf of the Judicial 
Conference of the United States).
---------------------------------------------------------------------------
    Finally, the bill would politicize and threaten the 
independence of our judiciary. When reviewing decisions of 
Federal agencies, the courts would have to give unprecedented 
deference to the issuing agencies.\16\ It has been noted that 
``this is an attempt to force courts to defer to agencies to 
allow projects to go forward even after the court has ruled 
that the agency actions are illegal.'' \17\
---------------------------------------------------------------------------
    \16\ See ADA Watch Letter.
    \17\ NRDC Letter.
---------------------------------------------------------------------------
    By making courts submit reports to congressional committees 
on decisions to extend injunctions,\18\ the bill would subject 
the courts and even individual judges to the constant scrutiny 
of politicians and thus violate separation of power principles. 
Furthermore, while various Federal laws do require the courts 
to submit reports to Congress, there are two major distinctions 
between those laws and this bill: (1) currently, reports are 
filed on an annual, semi-annual, or other periodic basis and 
not on the basis of specific decisions; and (2) currently, 
reports are filed by the administrative arm of the courts and 
not by individual judges.
---------------------------------------------------------------------------
    \18\ H.R. 1904, Sec. 106(b).
---------------------------------------------------------------------------

       C. THE LEGISLATION WAS NOT PROPERLY REVIEWED IN COMMITTEE

    Finally, we note that the legislation did not receive a 
thorough review by the Committee on the Judiciary. Despite 
containing provisions regarding administrative and Federal 
court procedures, H.R. 1904 was referred initially only to the 
Committee on Agriculture and the Committee on Resources. We are 
pleased the Judiciary Committee not only sought and received a 
referral of the bill for those provisions within its 
jurisdiction but also held a markup before letting the bill 
proceed to the floor. Unfortunately, the Judiciary Committee 
held no hearings on these far-reaching provisions; in fact, the 
Majority objected to Democratic requests for a hearing on the 
same or next day, before the expiration of the referral, so 
that Members of Congress and of the public could understand the 
full impact of the proposed changes.\19\
---------------------------------------------------------------------------
    \19\ See H.R. 1904 Markup. Moreover, despite the Majority's 
assertions to the contrary, H.R. 1904 was not subject to hearings in 
either the Agriculture or Resources Committees.
---------------------------------------------------------------------------
    In conclusion, proper administrative and judicial review of 
executive decisions and regulations are among the cornerstones 
of our system of government, which counts checks and balances 
as a basic tenet. This legislation attempts to eviserate these 
checks and balances to give cabinet and Federal agency 
officials virtually unchecked decisionmaking authority, seeks 
to subject plaintiffs and courts to rigid deadlines, and 
endeavors to place every Federal lawsuit except those 
pertaining to this legislation on the back burner. For these 
reasons, we respectfully dissent.

                                   John Conyers, Jr.
                                   Jerrold Nadler.
                                   Robert C. Scott.
                                   Melvin L. Watt.
                                   Zoe Lofgren.
                                   Sheila Jackson Lee.
                                   Maxine Waters.
                                   Martin T. Meehan.
                                   William D. Delahunt.
                                   Robert Wexler.
                                   Tammy Baldwin.
                                   Anthony D. Weiner.
                                   Adam B. Schiff.
                                   Linda T. Sanchez.

                                
