Healthy Forests Restoration Act of 2003

HEALTHY FORESTS RESTORATION ACT OF 2003

Mr. CRAPO. Madam President, it is an honor for me to participate in this debate, not only because of the importance of this legislation, which I will talk about in a minute, but because of the process which has brought us here and what the public is now observing.

As for the last little while, they have observed leaders on both sides of the aisle talk in support of a highly contentious issue that we have been trying to bring to resolution in this country for years. Today, we have before the Senate a bipartisan solution, one that is the result of literally years of effort by a number of Senators who I will mention, and the result of a collaborative effort to bring together the Senators from various perspectives and negotiate an outcome that would have the common ground to build positive solutions for the future and much more benefit to all sides than the conflict which has been so much a part of this issue over the last few years.

I hope as this debate proceeds that the public will notice what is happening in the Senate today, as we see strong leadership from both sides of the aisle stepping forward, reaching a compromise that probably none of us would have crafted ourselves but which moves the issue much more further forward than anything we have seen in the past.

I will speak for a minute about how this came about. We have already heard several comments today about those who have worked on this from the past. It just so happens that Idaho-Senator Craig was on the floor and will be back in a moment-has two Senators who happen, just by circumstance, to be the chairmen of the two forestry committees in the Senate. Senator Craig chairs the forestry subcommittee of the Energy Committee. Senator Wyden from Oregon, who just spoke, is his ranking member. I chair the forestry subcommittee of the Agriculture Committee. My ranking member is Blanche Lambert Lincoln, who is a cosponsor of the base legislation, which was initially put forward in the Agriculture Committee and which became the vehicle around which these negotiations centered.

Senator Craig, Senator Wyden, Senator Smith from Oregon, myself, Blanche Lambert Lincoln, Senator Domenici, the chairman of the Energy Committee, Senator Cochran, the chairman of the Agriculture Committee, both of the Senators from Arizona, Mr. Kyl and Mr. McCain, along with Senator Feinstein from California, Senator Baucus from Montana, and other Senators came together and said: We must find a way to get past the intense battles that always bring this legislation down and find a way to build a path forward, one that protects the environment, protects the natural resource-based economy, protects our urban and rural communities, and protects the world from the environmental impacts of the devastation of these forest fires. It is that which we have before us today.

I thank my chairman, Senator Cochran in particular, for the strong leadership he has provided; and Senator Domenici and Senator Craig from the Energy Committee who have provided such strong and consistent leadership on this issue.

Why is it that I say this is such an important and critical issue to America? Everybody in America who is looking at the news right now is watching what is happening in California. In California, fires are raging. The death toll is mounting. The devastation to the environment is obvious. What is happening there now is an example of what has been happening across America for years, as we have fallen into an inability to implement forest management decisions in America on our public lands. I do not have the exact statistic in front of me, but I believe the 10-year average is that we have seen something in the neighborhood of 4 million acres of forest ground burn a year. For the last 4 years the numbers were approximately 3.3 million acres this year, 7 million acres last year, 3.3 or 3.7 million acres the year before, and then another 7-plus million acres the year before that.

These acres burn in devastating ways, destroying wildlife and habitat, destroying our forests, and causing other significant damage to rural and urban communities, to natural resource-based economies in States such as Idaho, where we rely on a timber economy.

Another aspect that is not often noticed is it is delivering to the atmosphere immense amounts of carbon dioxide. In fact, I am looking for some of the statistics on this, but the amount of gas that is put into the atmosphere, in terms of the kinds of debates we are having over greenhouse gases and global warming, is phenomenal. To give one example, the Hayman fire in Colorado recently was analyzed and it was determined that in 1 day of that fire's burning, it put enough CO2 in the atmosphere to equal the amount of CO2 that all of the cars in the United States put into the atmosphere on that day.

If we multiply that times the number of fires we have been having over the years, the load of CO2 or greenhouse gases into the environment that is caused by the forest fires becomes a monumentally large issue in relationship to our efforts to control global warming.

Forest fires go from the broad issues of global warming to the narrow issues of a small community such as the community in Idaho that I recently visited, Elk City, which I at that time said was ground zero for this debate, a little community that is literally at the end of the road, in the middle of a tremendously beautiful forest in which the fuel load has been building year after year and now has a higher fuel load by several factors than the fuel load in Yellowstone when the Yellowstone fire started a few years ago.

This community has only one road in and one road out. They have been crying for support from the Federal system, to have some kind of protection of their community in terms of just what the threat is to loss of life, let alone the threat of the loss to their economy that would be caused by a forest fire. This little city, Elk City, ID, is as much involved and interested in this issue as are those who are battling over global warming issues. It is for that reason this legislation is so critical to our Nation.

I want to go over a little bit about the compromise, because the compromise we have reached today is a very broad-based critical compromise. It brings together a number of important pieces of the debate that have been counterpoints in conflict in the past and have now come together as part of a commonsense solution.

First, resources are provided in this bill for forest management at a significant level and in a significant way. One of the things we know is that prevention is critical. Madam President, $760 million in annual funding for fuels reduction on Federal lands has been provided in this legislation and that can be used also in related grants for State and private forestry programs. Fifty percent of these resources are required to be used in the wildland/urban interface, one of the critical areas we are now watching as the fires burn in California.

This critical wildland/urban interface is defined by local communities. We implement and follow the recommendations of the Western Governors Association as they talk about the collaborative process that needs to be put into place so citizen involvement can be enhanced in defining and implementing the protection plans for protecting our forests and the related communities, both rural and urban.

Second, this legislation for the first time in legislation proposes specific protection for old growth in the forests. Where there are old-growth stands in the forest, this legislation provides those who are implementing fuel reduction programs must protect those old-growth stands to the maximum extent they can. Conversely, it also provides that hazardous fuel reduction projects are intended to focus on small-diameter trees, thinning, and strategic fuel breaks, and should retain the large trees as appropriate for resilient stands. The point is the focus on small-diameter timber in these fuel reduction programs is going to provide opportunities for some of the communities that have been hit so hard by the reduction of logging and timber activities to find alternative sources for their economy to grow.

In Cascade, ID, we have a company that is trying to get started now, which is providing unique new ways of utilizing small-diameter timber to help in restoring and protecting our environment after fires have gone through, using the very small-diameter timber we are talking about in these forest fire prevention plans.

I should make clear, the focus on small-diameter timber is not to turn our back on the need to reform and solve the problems with regard to timber activity and logging activity. We can and should have a strong, healthy, natural-resource-based environment as well as strong, healthy forests. We can achieve those objectives. This bill is going to help us implement a number of the important provisions that will achieve those objectives.

Next, as the Senator from Oregon has already indicated, it protects public involvement. One of the things it does is it limits the number of alternatives the Forest Service must consider. Our minority leader, Senator Daschle, already indicated the expense and the time delay that is caused by the drive, under our current system, to force endless analysis but delaying getting to the implementation part of forest management decisions. This bill requires that in addition to the proposed fuel reduction program that is adopted by the Forest Service, the Forest Service must also consider the "no action" alternative, and at least one other alternative, if it becomes appropriate under the collaborative process that is moving forward, allowing for citizens to propose alternatives and have the Forest Service consider those alternatives as the process moves forward, but providing some relief so the Forest Service can get on with the decisionmaking.

In addition, what I have called litigation paralysis is addressed. One of the problems we face in forest management decisions today, possibly the biggest one, is that under our current system, no matter how much evaluation and study is put in, no matter how many alternatives are considered, at the end of the day the proposal that is adopted is litigated and we end up in paralysis through continuous litigation that simply stops the process from moving forward.

Let me give an example. A couple of years ago I went to a forest in Idaho. I was taken there by the Forest Service employees who had proposed a thinning project to address an insect infestation problem. They explained to me why this forest, both in terms of forest fire and in terms of its health and safety against insect infestation, needed to have this thinning project proceed.

I was impressed with what they taught me. I went away thinking this forest is going to have some improvement. I went back to the same forest several years later. No thinning activity had taken place. I was there with the same people. I asked them what had happened. They advised me they had their decision challenged in court and, although they had ultimately prevailed in the litigation, it was now 2 years later and it was too late. The insect infestation had gone too far; there was no point in doing the thinning project. The forest for that purpose had been lost. It is now a fire hazard, not to mention the fact the health of the forest itself has been sacrificed.

The Forest Service won the litigation, but the delay of the litigation stopped the ability to implement the management decision. That is just one example of the kind of thing we are talking about.

By the way, in that case I said, What was the issue? They explained to me the issue that was litigated.

I said, Why didn't you just concede that. It was not that big of an issue.

They said, The way we won the litigation is to basically concede that point and then ask permission from the court to go on because it really wasn't central to our efforts.

The response they gave me was: This issue was never raised as we were putting together the alternatives, going through the NEPA project. We didn't know we were going to get challenged on this or we could have accommodated it as we were moving along.

My point is that an entity, a group that wanted to stop this thinning project, sat back and let the entire process proceed without ever raising their concerns in the citizen involvement process. They waited until that entire process had come to a conclusion and then filed a lawsuit. The first time the Forest Service found out about this issue was then.

These kinds of issues are addressed in this bill. For example, we are requiring the Forest Service to develop a new appeals process that is similar to the predecisional appeals process the Department of Interior now uses. This is important, because it gives those who are concerned about good decisionmaking at the Forest Service, and who are already involved in the public process, the ability to challenge that through an appeal before the final decision is made, a predecisional appeal process. Then if they still do not like the outcome, nothing stops them from filing a lawsuit at the end of the process. We are expanding and enhancing the ability of involvement here by the public.

However, we are saying to individuals and groups who want to challenge these decisions you must get involved at the beginning. Those who want to challenge these decisions must show they have been involved in the process and participated in the public involvement process from the beginning. They also must show they have exhausted their administrative efforts, their administrative remedies. If they have a remedy with the Forest Service, they should go to the Forest Service through its appeals process, and exhaust that process first before simply filing a lawsuit and moving the whole process into litigation paralysis. With the enhanced citizen involvement we have provided, once a decision gets made, if there are those who are still unhappy, they have a right to file a lawsuit under this legislation.

What the courts must do at that point is expeditiously move the litigation. In the legislation the courts are encouraged to expedite these cases.

Second, this legislation limits the injunction that the court can issue to 60 days and allows continuous unlimited 60-day renewals but requires those who would come into court to simply stop anything from happening to show the court at 60-day intervals updated information that the grounds for stopping the action still exist and they haven't been resolved in some way.

Finally, it requires the court to balance the harms of what would happen if we don't do the thinning project or the proposed fuel reduction project, future harms that could come as a result of that against the current harm of what the injunction is proposed to stop. It simply requires a court to balance those harms as they evaluate whether to issue an injunction.

There are those who say the injunction should be issued no matter what because once a tree is thinned or cut it can never be put back. The response to that is, as true as that is, if you look to the future and to the future harms, once the insects take the forest, you can't bring it back easily, and those trees are dead, too. Once the forest burns, you can't then rebuild a healthy forest that you would have been able to do had you implemented these decisions.

All we are saying in this legislation is that the court must balance the harms from inaction against the harms of the proposed action in terms of issuing the injunction.

These are important factors that will help us break the litigation paralysis but still provide significant public input and significant public support and the rights of the public to challenge the decisions made by the Forest Service.

There are a number of other important parts of this legislation. There are critics of this legislation, and I assume that at some point throughout the debate today and tomorrow-as long as it goes-there will be an opportunity and a need to respond to some of the charges about this legislation. I will not go into all of that now.

I will simply conclude by saying again what we have before us today is a bill that is probably different than any one of the Senators who came together from both sides of the aisle would have drafted if they had drafted it on their own. But it represents a bill that goes to every issue that has been the cause for stalling which has stopped us from being able to get the legislation through, and it has resulted in compromising to move us forward in every one of those areas. We provide the resources. We provide protection for old growth. We provide protection for public and citizen involvement. We assure that the process for litigation is streamlined but is still meaningful. And, most importantly, we make it so that once our forest managers-those who have studied, the scientists who know what our forests need-have come up with a plan and have made it through the public process and through litigation they will actually have a real meaningful opportunity to implement forest management decisions.

This legislation is critical for Americans. It is unfortunate that we have to be debating it while we are watching California burn. But nevertheless the pressure from the forest fires over the last few years has shown us across America that it is time for us to come together as we have on this legislation and take this important step to protect our forests, to protect our natural resource base economy, to protect our communities, and to protect the world.

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Mrs. MURRAY. Madam President, I heard the objection from my colleague on the other side, and I would like to have him respond, if he would, as to when the Senate will consider this important piece of legislation.

As I said in my remarks, I know we are dealing with an issue that is important to many States, but we have to provide some financial relief to millions of Americans as we approach the holiday season.

I know my colleague understands the current extension ends on December 31. We are all working quickly to go home. I want to know if we can get a commitment that we will go to this bill so we can provide for these workers so they can be at home paying for their food and shelter that is so important to them. Can my colleague tell me when the Senate will consider this legislation?

The PRESIDING OFFICER. The Senator from Idaho.

Mr. CRAPO. Madam President, I would be glad to respond.

As the Senator from Washington knows, all of us have very critical issues that are very important to us, that we are trying to get time on this floor to consider. The way we handle that is we work with our respective leadership in scheduling these matters. I am not in a position right now to speak for either the leadership on the other side or my own leadership with regard to what kind of an agenda they intend to put forward with regard to the floor. What I do know is we have waited our time for this Healthy Forests legislation to come forward. We now have been given floor time, and we cannot relinquish it. Therefore, I will just encourage the Senator from Washington to work with her leadership and our leadership to see when the scheduling issue she wants to address can be brought forward.

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Mr. CRAPO. Madam President, we are getting close to a vote on this amendment. I wanted to take this opportunity to respond to a couple of the issues that have been raised by those in opposition to it.

First, it is notable that very little in opposition to this amendment has been said. There are a few things I will get into, but the fact is, as we said at the outset, a broad group of bipartisan Senators have come together to address the issues from all perspectives and build a common ground forward. I believe the relative lack of attack and concern that has been raised with regard to this amendment is indicative of the success which those Senators have achieved.

There have been a few criticisms made though. I want to respond to some of them.

First, with regard to the allocation of the resources, it has been argued that only 50 percent of the resources have been allocated to the wildland/urban interface. Remember, we have $760 million worth of resources allocated in this bill. The point, however, needs to be made that in addition to the fact that our wildland/urban interface needs to be addressed, much of the problem exists out in the forests away from that wildland/urban interface. In fact, when the forests get hot and get burning, when you get winds such as we are seeing in California right now, it is very important to have protection more than just 100 yards or a couple hundred yards away from the wildland/urban interface.

We are seeing in California right now what high winds and geography can mean with regard to a forest fire, and we must have the flexibility in our forest managers to make the decisions about where the best management should occur.

We also have heard that there is apparently a disagreement between the proponents and opponents of this legislation with regard to what the real problem is. Those who oppose this amendment say that the real problem is that we are not putting enough resources into fuel management and fuel reduction issues. Those of us who are proposing the legislation are said to be focused more on trying to reduce litigation.

The fact is, this is an indication of the fact that there are different points of view as to what we ought to be doing. It is what this bipartisan group of Senators did to address the issue. There are some who believe we need to solve the problem by putting more resources on the ground and getting those resources out there in forest management. That is why this bill authorizes $760 million of resources to go into the management of our forests.

We do, however, recognize that there is a large problem in the litigation arena. It is that litigation problem that the bill also addresses.

There have been arguments made that as a result of our efforts to address the litigation paralysis, public involvement has been limited. That is simply not true. No public involvement under NEPA has been eliminated. In fact, the predecisional appeals process we are proposing to create in this legislation will create a new avenue of public involvement. What we are saying, however, is that the litigation has to be brought in the State or the district where the fire is, where the proposed project is. Those who want to get involved have to exhaust their remedies, a very standard legal procedure that is required in many areas. Before you are going to file a lawsuit, go through the administrative procedures that are provided to try to achieve your objectives. And then, finally, if that doesn't work, there still is the route of litigation allowed. We simply encourage the courts to act expeditiously and require the courts to look at it every 60 days to see if the circumstances have changed.

I believe these are reasonable and fair protections that are built into place.

There has been discussion that even though we have $760 million allocated for forest fuel reduction projects and management in this bill, that the bill doesn't guarantee that that money will go there because it is not an appropriations bill. That is the same thing that is true about every authorization bill. The fact is, when we authorize these moneys, under the way the Congress works, it is still necessary for the Appropriations Committee to then appropriate the moneys. We will be working with the Appropriations Committee to take that next step. But to criticize this amendment because it is not an appropriations bill is simply to put up a false attack and to create a false impression that this is not a meaningful authorization of $760 million, subject, as all bills are except for entitlement programs, to the appropriations process.

One final point: There has been an argument that litigation really isn't the problem because a recent GAO report showed that the vast number of forest management decisions were not appealed. That study and the way people use it shows how you can use numbers to achieve different results depending on the outcome you want to address. The fact is, categorical exclusions represented a significant number of the actions of the agency. These are actions which the current law-not this law, but current NEPA law-does not require or allow to be appealed.

The reason is because they are basically the kinds of actions that have negligible or have no impact on the environment. It is things such as cutting firewood and mowing lawns and other types of categorical exclusion activities. There is more than that that is in that category. But the point is, these are categorical exclusions for things that have no significant environmental impact.

That is a current part of the existing law. When you look at the proposed treatments that have been more than a categorical exclusion, that require further NEPA analysis, then the level of appeals goes up dramatically. In fact, 59 percent of them are actually appealed. Of those that were appealed, it is interesting to note that most are found to be without merit; 19 out of 180 were reversed.

My point is, as I said earlier today, even though these appeals may be lost, what they do is cost the time, sometimes a full year or more, for the implementation of the management decision, which in many cases makes it moot at that point because the insect infestation has gone beyond the proposal, or because a fire has occurred or something else has made it so that the Forest Service simply can't proceed.

We are facing litigation paralysis. We do need additional resources on the forests. This is the first legislation in the history of the country that has provided statutory protection for old growth. This is a bipartisan compromise that will help us move significantly forward in these efforts to address this critical problem in our country.

I yield back the remainder of my time.