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REVIEW RECENT LITIGATION ON FOREST SERVICE FIREFIGHTING AND

FOREST HEALTH EFFORTS

HEARING

BEFORE THE

COMMITTEE ON AGRICULTURE

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

NOVEMBER 15, 2005

Serial No. 109–20

(

Printed for the use of the Committee on Agriculture

www.agriculture.house.gov

COMMITTEE ON AGRICULTURE

BOB GOODLATTE, Virginia, Chairman

JOHN A. BOEHNER, Ohio,

Vice Chairman

RICHARD W. POMBO, California

TERRY EVERETT, Alabama

FRANK D. LUCAS, Oklahoma

JERRY MORAN, Kansas

WILLIAM L. JENKINS, Tennessee

GIL GUTKNECHT, Minnesota

ROBIN HAYES, North Carolina

TIMOTHY V. JOHNSON, Illinois

TOM OSBORNE, Nebraska

MIKE PENCE, Indiana

SAM GRAVES, Missouri

JO BONNER, Alabama

MIKE ROGERS, Alabama

STEVE KING, Iowa

MARILYN N. MUSGRAVE, Colorado

RANDY NEUGEBAUER, Texas

CHARLES W. BOUSTANY, JR., Louisiana

JOHN J.H. ‘‘JOE’’ SCHWARZ, Michigan

JOHN R. ‘‘RANDY’’ KUHL, JR., New York

VIRGINIA FOXX, North Carolina

K. MICHAEL CONAWAY, Texas

JEFF FORTENBERRY, Nebraska

JEAN SCHMIDT, Ohio

COLLIN C. PETERSON, Minnesota,

Ranking Minority Member

TIM HOLDEN, Pennsylvania

MIKE MCINTYRE, North Carolina

BOB ETHERIDGE, North Carolina

JOE BACA, California

ED CASE, Hawaii

DENNIS A. CARDOZA, California

DAVID SCOTT, Georgia

JIM MARSHALL, Georgia

STEPHANIE HERSETH, South Dakota

G.K. BUTTERFIELD, North Carolina

HENRY CUELLAR, Texas

CHARLIE MELANCON, Louisiana

JIM COSTA, California

JOHN T. SALAZAR, Colorado

JOHN BARROW, Georgia

EARL POMEROY, North Dakota

LEONARD L. BOSWELL, Iowa

RICK LARSEN, Washington

LINCOLN DAVIS, Tennessee

BEN CHANDLER, Kentucky

PROFESSIONAL STAFF

WILLIAM E. O’CONNER, JR., Staff Director

KEVIN J. KRAMP, Chief Counsel

JOHN HAUGEN, Communications Director

ROBERT L. LAREW, Minority Staff Director

(II)

(III)

C O N T E N T S

Page

Goodlatte, Hon. Bob, a Representative in Congress from the Commonwealth

of Virginia, opening statement ............................................................................ 1

Peterson, Hon. Collin C., a Representative in Congress from the State of

Minnesota, opening statement ............................................................................ 3

Pombo, Hon. Richard W., a Representative in Congress from the State of

California, prepared statement ........................................................................... 4

Salazar, Hon. John T., a Representative in Congress from the State of Colorado, opening statement ...................................................................................... 4

WITNESSES

Hofmann, John B., director, natural resources, Regional Council of Rural

Counties, Sacramento, CA ................................................................................... 20

Prepared statement .......................................................................................... 37

Mortimer, Michael, professor of forest law and policy, Virginia Tech University, Blacksburg, VA, on behalf of the Society of American Foresters ............ 18

Prepared statement .......................................................................................... 39

O’Hara, Tim, vice president, Minnesota Forest Industries, Duluth, MN, on

behalf of the American Forest & Paper Association ......................................... 22

Prepared statement .......................................................................................... 34

Rey, Mark, Under Secretary, Natural Resources and Environment, U.S. Department of Agriculture ....................................................................................... 5

Prepared statement .......................................................................................... 30

Robinson, M. Brad, president, Gunnison Energy Corporation, Denver, CO ....... 23

Prepared statement .......................................................................................... 33

SUBMITTED MATERIAL

Fleischman, Forrest, policy advocate, Forest Service Employees for Environmental Ethics, statement ....................................................................................

Kenna, Matt, on behalf of the Western Environmental Law Center, Sierra

Club, Heartwood, and the Center for Biological Diversity, statement ............

(1)

REVIEW RECENT LITIGATION ON FOREST

SERVICE FIREFIGHTING AND FOREST

HEALTH EFFORTS

TUESDAY, NOVEMBER 15, 2005

HOUSE OF REPRESENTATIVES,

COMMITTEE ON AGRICULTURE,

Washington, DC.

The committee met, pursuant to call, at 2:00 p.m., in room 1300

of the Longworth House Office Building, Hon. Bob Goodlatte (chairman of the committee) presiding.

Members present: Representatives Gutknecht, Osborne,

Neugebauer, Boustany, Schwarz, Foxx, Conaway, Peterson,

Herseth, Salazar, and Barrow.

Staff present: Bill Imbergamo, Ben Anderson, Brian Knipling,

Callista Gingrich, clerk; Lindsey Correa, and Christy Birdsong.

OPENING STATEMENT OF HON. BOB GOODLATTE, A REPRESENTATIVE IN CONGRESS FROM THE COMMONWEALTH

OF VIRGINIA

The CHAIRMAN. This hearing of the House Committee on Agriculture to review recent litigation on Forest Service firefighting and

forest health efforts will come to order.

Good afternoon. We are here to discuss several instances where

litigation over the complex web of laws that govern our National

Forest System has created havoc for our professional land managers, with potentially devastating delays to needed forest management activities. The issues before us today stem primarily from the

district court case Earth Island Institute v. Ruthenbeck. This case

was filed against a forest-restoration project proposed by the Forest

Service after a wildfire in California in 2002. The legal issues this

case exposed, however, have roots that date back to the passage of

the Appeals Reform Act in 1992, and they have raged inconclusively since that year.

I want to make clear that I support public involvement in the

management of our National Forests. This committee has supported making the public involvement process simpler, shorter, and

more transparent through such things as the Healthy Forests Restoration Act. But what we are dealing with today is the result of

overlapping and conflicting mandates that, if the court in the Earth

Island Institute case is correct, require the following: public notice

and comment on the development of forest plans, which set broad

parameters for land management; public notice, comment, and appeal of significant projects, such as timber sales; public notice, comVerDate 11-SEP-98 15:44 Jan 04, 2006 Jkt 000000 PO 00000 Frm 00004 Fmt 6633 Sfmt 6633 F:\DOCS\109-20 HAGRI PsN: HAGRI
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ment, and appeals of insignificant projects which are severely restricted in terms of where they can be proposed on the National

Forests, and lest we forget, litigation over both forest plans and

projects, whether significant or insignificant.

The Forest Service is the only Federal land management agency

with a statutorily required administrative appeals process. It also

prepares more National Environmental Policy Act documentation

than any other Federal agency. Even after extensive documentation and public involvement, the Forest Service is still routinely

sued by environmental advocacy groups. The result in my mind is,

at what point have we lost sight of environmental results because

of our excessive attention to bureaucratic process?

The ruling in the Earth Island case initially threatened to halt

over 1,500 forest health projects, as well as numerous other minor

activities such as outfitter and guide permits and permits for wellestablished ski areas. It is my understanding that the judge’s recent order reduced the impact of the initial ruling on projects unrelated to resource use and development, but the damage to many

projects has already been done as several of our witnesses will tell

us today.

Even more telling, however, was the initial reaction from certain

environmental advocacy groups. Within days of the judge’s ruling,

environmentalists around the country demanded a halt to everything from minor thinning projects to a proposed bicycle race

through forestland. The Forest Service is clearly a favorite target

of dilatory litigation, and even the proposal to drastically reduce

timber sales has done nothing to abate the problem.

Even with the narrowed ruling, the Forest Service believes that

almost 600,000 acres of fuels treatments will be delayed at least

through the winter, including almost 33,000 acres on the George

Washington-Thomas Jefferson National Forest in Virginia. In all

likelihood, these projects won’t be undertaken until the spring.

Twenty-two salvage logging projects will also be delayed, reducing

the value of the already dead timber by at least 50 percent and denying badly needed economic activity to rural areas. All told, over

800 projects affecting more than 1.2 million projects, 1.2 million

acres will be delayed.

I will note that although today’s hearing is an oversight hearing,

we have introduced a bill, H.R. 4091, that addresses the issue at

hand in this case. The bill clarifies that projects conducted under

the categorical exclusions are not subject to the Appeals Reform

Act.

Under Secretary Rey will also touch briefly on a case filed by an

advocacy group to force the Forest Service to conduct NEPA and

Endangered Species Act consultation on its use of fire retardant.

This case, I believe, illustrates the mindset that regardless of commonsense steps taken to protect the environment, they are not satisfied unless extensive process is undertaken. It is worth nothing

that once the Forest Service engages in the NEPA and ESA consultation processes, there will be numerous chances for opportunistic litigators to file additional motions and even new cases. While

the litigants have thus far not sought an injunction against the use

of fire retardant, that possibility still exists.

3

It is my understanding that both the Sierra Club and the Western Environmental Law Center will submit testimony for the

record. Representatives of these groups were unable to attend today’s hearing. I recommend committee members to avail themselves of their views as soon as they become available.

At this time, it is my pleasure to recognize the ranking member

of the committee, the gentleman from Minnesota, Mr. Peterson.

OPENING STATEMENT OF HON. COLLIN C. PETERSON, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MINNESOTA

Mr. PETERSON. Thank you, Mr. Chairman, and thank you for

calling this hearing today. I also want to thank our witnesses for

sharing their perspectives on the impact of litigation on forest

health and management. I would like to extend a special welcome

to Tim O’Hara, the vice president of Minnesota Forest Industries.

Many of my constituents are employees of the companies represented by Tim, and their lives and jobs depend on responsible

forest management practices, and the continuing health of Minnesota National Forests.

In 2003, the GAO published a report that looked at the number

of Forest Service decisions to implement forest fuels reduction activities and how many of those decisions were appealed or litigated

in fiscal years 2001 and 2002. Out of 762 decisions involving forestfuel-reduction activities, 485 of those decisions were appealed, and

23, or 3 percent of the decisions were litigated. Although the GAO

report suggested that only a small fraction of the cases resulted in

litigation, the number of appeals is disconcerting. We need to find

a way to address concerns raised in the appeals and litigation process during the development of fuel reduction plans, rather than letting those issues come up after the plan is complete. Delaying forest health projects for too long because of appeals will only make

the problem worse.

Earth Island v. Ruthenbeck is just one example of how a complicated case can drag on through several court decisions over 6

years and still yield nothing but confusing edicts for the public and

the Forest Service alike. Between appeals and litigation, the Forest

Service is stretched for resources and distracted from pursuing its

main mission, which is to sustain the health, diversity, and productivity of the Nation’s forest and grasslands to meet the needs of

present and future generations. We must also continue to keep our

domestic forest products industry viable. The industry faces increasing global challenges from countries that have lower environmental standards than we do, and we need to work with the industry to address the growing forest health crisis.

I look to hearing from today’s witnesses regarding the specific

impacts of recent litigation, and suggestions about how we can fix

this system. Thank you, Mr. Chairman.

The CHAIRMAN. I thank the gentleman. Are there other members

of the committee who would like to make an opening statement?

The gentleman from Colorado, Mr. Salazar.

4

OPENING STATEMENT OF HON. JOHN T. SALAZAR, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF COLORADO

Mr. SALAZAR. Thank you, Mr. Chairman and Ranking Member

Peterson for holding this important hearing today. I would like to

recognize Brad Robinson from the Gunnison Energy Corporation,

who will testify on today’s second panel. Thank you for being here

all the way from Colorado.

Colorado currently has 37,975 acres that are affected by the

Earth Island decision. Categorical exclusions are important to my

district and the individuals that rely upon them. I know that people have different views of the National Energy Policy Act and any

possible changes to it, including categorical exclusions, but I am

concerned with how the Earth Island decision will impact Colorado’s forest health initiatives. Many residents of Colorado, as well

as myself, are worried that this court decision will stifle community

forest health projects. Over the past couple of years, Colorado has

been plagued with pine beetle infestation that has wreaked havoc

in Colorado’s forests. Many communities are evaluating the best

way to treat these dead trees to limit the fire hazard, and they are

very concerned about what impacts the court decision will have on

the ability to do that.

I know that this issue has become quite contentious, and I am

hoping that it can be resolved along with any other issues that

exist at today’s hearing, and I look forward to hearing the testimony of today’s witnesses. I want to thank the panel participants,

Chairman Goodlatte, and Ranking Member Peterson for bringing

this issue to the committee. Thank you.

The CHAIRMAN. Are there other Members who wish to make an

opening statement?

[The prepared statement of Mr. Pombo follows:]

PREPARED STATEMENT OF HON. RICHARD W. POMBO, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF CALIFORNIA

Good afternoon. I’d like to start by thanking Chairman Goodlatte for holding this

hearing. This issue is so important, that the chairman and I introduced H.R. 4091,

which would address the categorical exclusion decision. Our bill may not be the ultimate solution for resolving this issue, but it serves to open up the issue for discussions so we can better determine what needs to be done.

The recent court rulings on categorical exclusions and fire retardants are obvious

and unfortunate examples of judicial activism. This type of environmental litigation

clearly shows the intent of the environmental litigants: to stop any meaningful work

from being done on national forests. Rather than being part of the solution, these

groups would rather appeal and litigate to get the results they desire. Make no mistake, they are not interested in the sensible management of our public lands—they

are interested in stalling management on our public lands and limiting public access.

Contrary to some claims, I am not opposed to appeals or litigation by anyone or

any group—including environmental groups. It is vital that Americans have the opportunity to sue. But, as it will be clearly demonstrated in today’s hearing, these

decisions have gone too far. Land managers need to get back to what they are

trained so well to do: manage land. Instead Government resources are tied up for

months and even years, fighting frivolous lawsuits—not to mention the millions of

taxpayer dollars that are wasted in the process. Meanwhile, we still have 190 million acres of public land at high risk to catastrophic wildfire. Wouldn’t this time and

money be better spent on projects to actually protect and restore our public lands?

I’d like to thank Under Secretary Rey for being here today and giving us a

glimpse as to what the Forest Service is dealing with. Congress is sometimes too

quick to blame the agencies for inaction. Today, we can hopefully shed some light

5

on what Congress can do to help the land management agencies actually start managing land again.

The CHAIRMAN. We will welcome our first panelist, the Honorable Mark Rey, Under Secretary of Natural Resources and Environment of the U.S. Department of Agriculture. Mr. Secretary, we

are always delighted to have you with us and you are welcome

again today.

STATEMENT OF MARK REY, UNDER SECRETARY, NATURAL RESOURCES AND ENVIRONMENT, U.S. DEPARTMENT OF AGRICULTURE

Mr. REY. Thank you very much. And thank you for the opportunity to appear before you today to provide the Department’s assessment of the impacts of recent court rulings on the Forest Service use of categorical exclusions and fire retardants.

The recent court ruling on the Forest Service use of categorical

exclusions has a significant impact on a range of management activities throughout the country. Thousands of projects that we had

found to have insignificant environmental impacts will now be subject to formal notice, comment, and appeal, lengthening the time to

conduct such activities, increasing their costs, and potentially

greatly increasing the amount of information that will be needed

to document decisions.

Furthermore, the court order is inconsistent with congressional

intent for two categories of projects which Congress specifically legislated in order to expedite agency work, applied silvicultural research projects under the Health Forest Restoration Act, and oil

and gas development under the Energy Policy Act.

Of foremost concern is the effect of the court ruling on the hazardous fuel reduction work that is accomplished with multiple

methods and often with multiple partners. For fiscal year 2006, we

estimate that about half of the annual hazardous fuels treatment

target will be accomplished using categorical exclusions. This

means that all of those projects are now subject to another 32 to

135 days of administrative process prior to implementation on the

ground.

The acreage affected includes about 900,000 acres of hazardous

fuel reduction projects, as part of our National target of 1.8 million

acres for hazardous fuel reduction treatments. This 900,000-acre

estimate includes almost 600,000 acres of prescribed burning in the

southern region. One effect of the increased timeframes is missing

prospective windows of air quality limitations for prescribed burning. Delayed prescribed burning activities increases fuel loading,

leading to higher fire risks and potentially higher smoke emissions.

Moreover, increased fuel loads add to the complexity of the burns,

with the potential for fire escapes and the need for more people

and equipment, thus increasing costs.

An additional potential impact in the regions, that the regions

report, is to neighboring communities. Over 230 neighboring communities would potentially benefit from these hazardous fuel reduction projects if they were not delayed, as they now will be.

We have submitted for the record of the hearing those 230 communities that are now going to be placed at increase risk. My statement for the record also includes a brief description of the evoVerDate 11-SEP-98 15:44 Jan 04, 2006 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 F:\DOCS\109-20 HAGRI PsN: HAGRI
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lution of this litigation, and a detailed description of all of the type

of projects that would be affected.

The recent ruling on project appeal procedures for categorically

excluded activities will have, in short, a far-reaching impact on the

Forest Service’s ability to quickly respond to resource management

needs and partner requests for work of a routine nature with insignificant environmental effects. We know that recent court orders

impact not just our activities, but also our neighboring communities and landowners, permitees, contractors, and other Government agencies. Additionally, this court ruling will apply to any new

categorical exclusions developed in the future for the actions listed

in the October 19 order, thereby potentially expanding the future

impacts of the court ruling.

In the second decision filed on October 24, 2005, the Federal District Court of the District of Montana held that the Forest Service’s

failure to conduct an environmental analysis on the use of longterm chemical fire retardant on National Forest System land violated the National Environmental Policy Act and the Endangered

Species Act. The court left to the Forest Service’s discretion whether to conduct an environmental assessment or a more comprehensive environmental impact statement to comply with NEPA. Preliminary estimates by agency staff indicate that a programmatic

EIS, should we decide to go that route, might take up to 2 years

to complete, at a roughly estimated cost of between $1.5 million

and $2 million. Even prior to this case, the Forest Service worked

with the Fish and Wildlife Service and the National Marine Fisheries Service for some time on the subject of how we might conduct

Endangered Species Act section 7 consultation for firefighting activities. This consultation did not reach a conclusion, and therefore

we are not able to estimate what amount of additional activity or

what additional cost would be required by the court’s order. At this

point, we have not verified that the Fish and Wildlife Service or

the National Marine Fisheries Service will accept a programmatic

consultation of this nature. If they would not, then we face the

prospect of additional difficulty in complying with this order, potentially site-specific consultations each time we elect to use fire retardant.

While the court in this case did not enjoin the use of retardant

while the required NEPA and EIS activities are conducted, there

is still the possibility of an injunction in the future. The judge did

make a decision on the merits of NEPA and EIS claims, so it is

possible that another plaintiff in this or another venue could site

this finding and seek an injunction. So we will be in a state of uncertainty as to the availability of retardant as we begin compliance

with this order and start into the next firefighting season.

In sum, those are the impacts, as we see them today, of both

court decisions. I would be happy to respond to any questions that

the committee has.

[The prepared statement of Mr. Rey appears at the conclusion of

the hearing.]

The CHAIRMAN. Thank you, Mr. Rey. What safeguards does the

agency have in place governing the use the long-term fire retardant?

7

Mr. REY. Today, our use of long-term fire retardant is predicated

on a number of safety evaluations of the retardants that we use.

The testing that we do includes a human health risk assessment,

which is completed through a contract with Labatt-Anderson Laboratories, and specifications for that research are reviewed in conjunction with the Environmental Protection Agency and EPA’s

known carcinogen list, and we continually monitor for compliance

with those EPA requirements.

In addition, 4 years ago, the Forest Service developed guidelines

for aerial delivery of retardants and foams, which requires that

aerial drops not be made within 300 feet of a waterway. So both

on our own initiative as a result of research done by contractors,

and in consultation with EPA, we have done as much as possible

to make sure that the use retardants and foams is as safe as we

can make it.

The CHAIRMAN. So in other words, don’t let me put words in your

mouth, but your opinion is that the processes that you have engaged in over a significant period of time in evaluating the use of

these retardants satisfies you that you are preventing direct exposure to firefighters of any kind of hazard, and you are taking measures to prevent the retardant from getting into watercourses, is

that correct?

Mr. REY. That is correct. In addition to that, we also evaluate the

impacts of the individual retardants on the environment to decide

whether to continue to use them, and we have safety protocols in

those instances where a firefighter is exposed to a retardant drop,

that minimizes the long-term impacts of that exposure.

The CHAIRMAN. Did the judge in this case indicate specific things

that the Department had not investigated, or was it simply a you

haven’t a complied with what I think the procedure is supposed to

be under NEPA and ESA?

Mr. REY. I think it is by and large the latter. I mean, both of

the holdings in this case were procedural holdings associated with

the standard processes that you use under the National Environmental Policy Act or under the Endangered Species Act.

The CHAIRMAN. There wasn’t a gapping area of concern that you

left uncovered that the judge was brining attention to. He was simply requiring the maximum bureaucratic process to be undertaken

here.

Mr. REY. Well, I don’t know that I would express it quite that

way, but he was assuring that we were——

The CHAIRMAN. I don’t have to appear before him.

Mr. REY. I might and I have before. He was chastising us for not

following the procedural requirements of those two statutes, in his

judgment.

The CHAIRMAN. Can you describe in more detail the extraordinary circumstances that prohibit the use of categorical exclusions?

Mr. REY. When we write a categorical exclusion, we define certain circumstances where that exclusion isn’t properly used, and

where the project in question should be accompanied by a more detailed environmental assessment. By and large, when we look extraordinary circumstances, we are looking at the landscape and

looking for the presence of things like threatened or endangered

8

species, floodplain or wetland areas or municipal watersheds, wilderness or wilderness study areas, or other areas of a sensitive environmental nature. And if we make a determination that the

project is likely to have an effect on those values, then the extraordinary circumstances exclusion, or the extraordinary circumstances

requirement kicks in and the categorical exclusion isn’t used.

The CHAIRMAN. Now that is with the Forest Service. What about

a private citizen? If a Forest Service official attempted to use a categorical exclusion, in spite of the presence of one or more of those

circumstances that you just described, what recourse would that

citizen have?

Mr. REY. In virtually all cases, during the scoping process associated with the particular project, the citizen would have the opportunity to tender comments to the agency, saying essentially that

there is an extraordinary circumstance here and the categorical exclusion should not be used. Then, after having brought that to the

agency’s attention, if the agency proceeds anyway, the citizen still

has all their rights before a court to bring the agency to court. In

that case, what the private citizen would be alleging is that the

agency violated the categorical exclusion by using it for a project

for which it wasn’t appropriate.

The CHAIRMAN. So even if at the end of this process, this court

decision is clarified or overturned and you are back to using categorical exclusions as you had been using them, that same individual or group that expressed those concerns would still have their

rights to express those concerns in a process that would still allow

them to take action if they felt the Forest Service was ignoring

their extraordinary circumstance concern?

Mr. REY. That is correct.

The CHAIRMAN. Can you comment on the communications the

agency received from environmental groups after Judge Singleton’s

September 18 ruling? Is it true that concerns were raised on a wide

variety of forest management projects and special use permits?

Mr. REY. The nature of the communications between parties is

probably something I shouldn’t go into too much detail on, given

that the litigation is still pending. Suffice it to say that the sequence of events from our perspective sort of went like this: the

judge issued an order; we interpreted it in a fairly standard way,

as applying within his jurisdictional reach; the plaintiffs objected

to that, filing a motion of contempt with the court, asserting that

the order should be applied nationwide and to all activities; the

court, the Government filed a motion for clarification; the court

then issued a second order, saying it did mean to apply it nationwide and it would not hold the Government in contempt at that

time; the plaintiffs then subsequently communicated with us, saying, we now expect you to apply the order nationwide for all activities, which is what we subsequently did. That had a broader reach

than, I think, the plaintiffs envisioned it would, even though, in

our judgment, that is what the order said in fairly straightforward

terms. So the plaintiffs filed a second motion for clarification to

limit the number of kinds of activities that were affected. At the

same time, the Government filed a motion to stay the decision. The

judge issued the motion for clarification, thereby reducing the number of activities that were covered, and we are still waiting for a

9

response to the motion to stay. All the briefing on that motion has

been completed. So I guess, without disclosing any of the protected

or privileged communications, that is the essential who-shot-John’s

of what has transpired to date.

The CHAIRMAN. Thank you. The gentleman from Minnesota.

Mr. PETERSON. Thank you, Mr. Chairman.

There seemed to be a lot of confusion about the nature of public

involvement under these various Forest Service decision-making

processes. Now, how many are there of these decision-making processes for fuel reduction activities, like the regular fuel reduction,

like Health Forest Restoration Act reductions and others? How

many are there of this nature, do you know?

Mr. REY. Not that many. I think I can summarize them for you.

Any time we make a decision, we have obligations under the National Environmental Policy Act to evaluate the environmental impacts of the decision. For certain kinds of projects, where we have

determined after doing the project over and over again and seeing

that there is no significant environmental impact, the environmental documentation is taken care of through the categorical exclusion. For more complicated projects, where there may or may

not be a significant environmental impact, we do an environmental

assessment, and if the end of that analysis finds that there is no

significant impact, proceed. For even larger projects of greater geographic scope or complexity or environmental sensitivity, we do an

environmental impact statement.

Each of those has a somewhat different public participation requirement associated with it. A categorical exclusion, prior to the

Earth Island decision, did not involve formal notice and comment

or a right to administrative appeal, even though there was a comment opportunity, as I indicated to the Chairman, during the

scoping process for projects covered under a categorical exclusion.

For projects covered under the environmental assessment or an environmental impact statement, it has been the Forest Service practice to allow formal public notice and comment. Even though not

all agencies do that for environmental assessments, we do. And

then we do have an appeals process that applies to projects that

are covered by an environmental assessment or an environmental

impact statement.

In all three categories, there is a right of judicial review. The

Healthy Forest Restoration Act modified some of those procedures

for a certain category of fuels reduction projects, not to exceed 28

million acres in total over the life of the authorization of the bill.

But essentially, notwithstanding the changes to the Healthy Forest

Restoration Act, all the fuels reduction projects fit into one of those

three categories.

Mr. PETERSON. Apparently, some of these activities are exempt

from the Appeals Reform Act, am I right?

Mr. REY. It was our judgment, prior to the Earth Island decision,

that projects covered under a categorical exclusion were not subject

to the Appeals Reform Act. That in essence was the central question at issue in the Earth Island decision. Since the enactment of

the Appeals Reform Act in 1992, the Forest Service has consistently maintained that where they cover, where they perform individual projects under the authority of a categorical exclusion, beVerDate 11-SEP-98 15:44 Jan 04, 2006 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 F:\DOCS\109-20 HAGRI PsN: HAGRI
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cause there is no notice and comment and subsequent documentation, administrative appeal is unnecessary and inappropriate.

Where there is an opportunity for appeal is when we formulate the

categorical exclusion itself.

The development of a categorical exclusion is a rulemaking exercise. And the way it proceeds is we look at, over the course of time,

categories of activities where we have been doing environmental

assessments, that medium level of analysis, but where we have

been consistently finding no significant environmental impact. And

when we identify a category of activities that fits that nature, what

we then do is say this is a category of activities where we have

enough experience to know that the outcome is going to be, A, the

same most every time, and B, of an insignificant environmental impact each time. And so therefore it is not doing the environment

or the taxpayer any good to continue to spend the money and time

to do environmental assessments every time we do one of those activities.

So we gather together all of that data, put together a proposed

categorical exclusion for that category of activities, put that out for

public notice and comment, go through a formal notice and comment period and an administrative appeals period on that category,

on that particular categorical exclusion, and then, if at the end of

the day, we still think it is justified, we go forward with it. In the

past, when people, when private citizens or interest groups have

taken issue with either the development of a categorical exclusion

or a specific project operated under the authority of a categorical

exclusion, what they have done is challenged either the project as

not fitting the categorical exclusion, or challenged the categorical

exclusion itself as involving the kinds of projects that are likely, in

some cases at least, to have significant environmental impacts and

therefore should be subject to a greater degree of environmental

analysis. In Earth Island, for the first time, the plaintiffs took a

different path in bringing their challenge, and that was to say that

all projects covered under categorical exclusions are subject to notice and comment and appeal.

Mr. PETERSON. It doesn’t sound very simple to me, but how

does——

Mr. REY. Well, it is as simple as we could make it, given the circumstances.

Mr. PETERSON. You are in big trouble, I guess we all know that,

but how does, I just wanted to follow up.

The CHAIRMAN. Go right ahead.

Mr. PETERSON. How does somebody, an average person, find out

about these categorical exclusions? Is there some way to?

Mr. REY. When we are developing a categorical exclusion to cover

a category of projects, people find out the same way they do any

of our other decisions, because it is a rulemaking action. We publish a notice in the Federal Register. We accept comments on the

way we have written the category.

Mr. PETERSON. Is there a website they go on to find out or what?

Mr. REY. Sure, it would be on our website, the Forest Service

website.

Mr. PETERSON. That lists these exclusions?

Mr. REY. Yes.

11

Mr. PETERSON. How many are there?

Mr. REY. Thirty-some. At the present time, about 20.

Mr. PETERSON. Thank you, Mr. Chairman.

The CHAIRMAN. I thank the gentleman. The gentleman from Minnesota, the chairman of the Forestry Subcommittee, is recognized.

Mr. GUTKNECHT. Thank you, Mr. Chairman. I don’t have so

much a question about the issue of forests, but I do have a comment and I am going to use my opportunity to make it; and that

is that there is a growing feeling, at least in my State of Minnesota, that we are just not, we have the health forest initiative,

but we are still not utilizing the forest resources the way we should

be. And I just want you to know that, from my perspective, I will

to continue not only to monitor the situation, but I do believe that

the squeaky wheel gets the grease and I am going to continue to

squeak. With that I yield back my time. And if you want to respond, you can.

Mr. REY. I understand the concern and I think what I have been

trying to do here today is squeak a little myself.

The CHAIRMAN. I thank the gentleman. The gentlewoman from

South Dakota is recognized.

Ms. HERSETH. Thank you, Mr. Chairman for having this hearing

today. Thank you, Mr. Rey, for your testimony.

I want to just explore with you some hypothetical situations and

how they might be affected by the district court ruling. If we don’t

take a legislative action to respond to it, or if it is not overturned

on appeal, because even though we had the initial decision July 2,

and then in response to the confusion it caused, there was the clarification order that you discussed with us today and that we are

familiar with. There seems to still be some confusion, and I am not

entirely clear on what is covered and what is not now, in terms of

the categorical exclusion regulations. So in your opinion, can electric distribution companies and cooperatives get access to their

right-of-ways in National Forests to do power line maintenance for

fire mitigation purposes?

Mr. REY. I would say that if the maintenance work they need to

do involves any amount of ground disturbing activity, it is questionable whether we have a categorical exclusion that will apply.

If, on the other hand, it is just brush maintenance, then it probably

still is allowed without notice and comment and appeal. Remember,

the judge didn’t disallow categorical exclusions, he simply said that

projects conducted under many of our categorical exclusions require

notice, comment, and appeal right, which will tack on 135 days, as

much as 135 days. So in the question you asked, if there is not substantial ground disturbance, it is just brush maintenance, I think

that the categorical exclusion, to the extent one exists on a particular forest, probably is still able to proceed, projects are still able to

proceed. To the extent that there is a significant amount of grounddisturbing activity, if they are actually blading or maintaining a

road right-of-way along the power line, that probably isn’t going

make it without notice, comment, and a right of appeal.

Ms. HERSETH. How about a smaller post-fire salvage, to the degree that it includes any kind of timber sale?

Mr. REY. That will require notice, comment, and appeal.

12

Ms. HERSETH. Regardless of the size of the post-fire salvage activity?

Mr. REY. Regardless of the size.

Ms. HERSETH. How about using categorical exclusions to deal

with a bug or a disease infestation problems?

Mr. REY. There again, you can use a categorical exclusion, but

if what you are going to deal with the bug or disease infestation

involves either harvesting timber or prescribed fire, that categorical exclusion is going to require notice and comment and appeal.

Ms. HERSETH. And as you described the process by which the

Forest Service develops the categorical exclusion for certain types

of activity, as you described in terms of being subject to that intermediate level of analysis with the EA and that over time there is

just no environmental impact, so you create the categorical exclusion, and then that is subject to the notice and comment period and

the administrative appeal, can you tell me, other than the reference to the 1993 rule in the district court ruling, what was the

basis for the district court identifying these 11 activities?

Mr. REY. I am at a loss to give you a rationale for the judge’s

final clarification. I know of no basis in current law that allowed

him to distinguish some activities covered under the categorical exclusions which would not require notice, comment, and appeal, and

other activities covered by categorical exclusions which would require notice, comment, and appeal. The basis of his holding was essentially a bare-language interpretation of what the 1992 appeals

law required, and there is nothing in that law which would give

the judge any insight to say, require it here, but not here. So I

think, while we appreciate that the clarification reduced the impact

of the decision, I can’t sit here today and tell you how the judge

decided to go that way.

Ms. HERSETH. One final question. I think you responded fairly

extensively to Chairman Goodlatte, but if you could just, again, address it again. After the initial ruling and the Forest Service decision to suspend all categorical exclusions, why did the Forest Service choose to issue such a blanket order, when a less sweeping one

may have sufficed?

Mr. REY. At the point that we issued that order, we did not have

the benefit of the judge’s final clarification. And as I told you a moment ago, I don’t have any idea of how he came up with that distinction. So it didn’t appear to us that there was a basis for making

such a distinction. What we were faced with was the judge who

said, apply this order broadly; a plaintiff who said, apply it to all

projects and said if you don’t, we are going to file a second contempt motion, knowing that in the order that the judge just issued,

he said, I won’t hold you in contempt at this time. The three words,

at this time, suggested to us that if we didn’t apply his order as

broadly as it seemed to be written, that we would likely face a subsequent contempt motion, and maybe a successful one at that. And

in as much as spending time behind bars is not high on my list of

things to do, nor is it the chief’s, we decided to do exactly and expressly what the court order seemed to tell us to do and what the

plaintiffs seemed to be insisting on.

Ms. HERSETH. Thank you. And just one final comment. I would,

for the record, want to express my being at a loss myself in trying

13

to figure out the basis for the district court’s clarification and dismissing the careful system that we have set up through the agency,

through the Forest Service, in developing the categorical exclusions. And a number of the areas that are listed in the clarification

order seem to me as well to trample on some of the work that we

have done since the passage of the Healthy Forest Restoration Act

and the involvement of local communities serving on these advisory

boards, and to be able to dismiss this so out of hand, really, I think

that the district court’s clarification order was simply to push back

on the Forest Service in a way, after you did issue an order, that

you had to do to avoid some of the other litigation. So I appreciate

your testimony and your responses to the questions today, Mr. Rey.

Thank you.

Mr. REY. Thank you.

The CHAIRMAN. I thank the gentlewoman and join her in her

puzzlement. The gentleman from Texas is recognized.

Mr. CONAWAY. Thank you, Mr. Chairman. Dr. Rey, thank you for

being here today.

Along the lines that Stephanie was talking about, in applying the

new paradigm to oil and gas exploration and drilling, natural gas

drilling in all likelihood, if I had a five-well project that I wanted

to drill, under these new rules, I would come to you and we would

go through all of this exercise to get the right clearances. And then,

after when I started drilling, I needed to run a flow line that was

not anticipated originally, would that open me up to another 135-

day appeal process, that I would have to stop drilling at that point

in time?

Mr. REY. Yes.

Mr. CONAWAY. And wait on that?

Mr. REY. Yes.

Mr. CONAWAY. So let us go——

Mr. REY. If the flow line wasn’t originally contemplated in the

first decision, yes, that would require a second decision.

Mr. CONAWAY. So we would have to stop the drilling, or figure

out another way to do it?

Mr. REY. Yes.

Mr. CONAWAY. OK. I could see that it would be a real chilling

effect on the exploration for natural gas on Federal lands, or

forestlands, I guess.

Mr. REY. It will delay things, there is no question about that.

Mr. CONAWAY. Yes. In misfit youth, I rode motorcycles, dirt

bikes, and as always, there is tension between folks about whether

or not to use forestlands for off-vehicle, off-highway vehicle use. I

noticed in your testimony that you had an enduro race that got

canceled, I guess, because of this rule. I am maybe one of the few

guys in Congress who has actually raced enduro racing. Is this a

circumstance where they can never do that or they would go

through, or lengthen the time of which to get permission to hold

those races on Forest Service? Which would it be?

Mr. REY. Right. The issue here in this particular race was that

the order applied the notice, comment, and appeal requirements to

the categorical exclusion that was used to justify that race. And the

race was scheduled to begin before the 30-day comment period

ended, so there was no choice but to postpone the race. That is not

14

to say they can’t have a race in the future, they just have to, assuming that the court order stood, we would still use a categorical

exclusion, most likely, for this race and then we would just add the

amount of time necessary. And the people who want to sponsor the

race would have to plan accordingly.

Mr. CONAWAY. Sure. Back on geophysical testing. If you lay out

a grid of how you want to do that test and that grid would then

get approved, and once you then got on the ground, though, and

began to lay out your equipment and everything, and you want to

deviate somewhat from that, would you then have to start over

with the process? And I may be being a little bit redundant, but

I want to be redundant for the record, because if the impact this

is going to have, particularly at a time when people are complaining about high natural gas prices, and one of our problems with

high natural gas prices is a supply, and we have a supply on Federal lands that we are having a very difficult time getting at. So

can you give me some sort of a sense of is there a de minimus

amount of change you can have from your original plan before you

have to go back to the appeals process, or is it just any change

whatsoever?

Mr. REY. Is the change likely to change the environmental effect

of the project as originally designed? And if it is, or is possible,

then you have to go back and reevaluate those changes.

Mr. CONAWAY. OK. The phrase, is possible, is troubling. That is

pretty open-ended.

Mr. REY. Yes, I agree.

Mr. CONAWAY. Mr. Chairman, I yield back. Thank you for this

opportunity to testify, or to question the witness.

The CHAIRMAN. I thank the gentleman. The gentleman from Colorado is recognized.

Mr. SALAZAR. Thank you, Mr. Chairman.

Mr. Under Secretary, in October 18, 2005, Senators Bingaman

and Harkin actually sent a letter to President Bush, asserting that

the agency took an unnecessary and inappropriate response by suspending noncontroversial activities such as firewood cutting permits and simple little things like that. Have you relaxed your position on that, not yet?

Mr. REY. That position changed after the last court order clarifying what the judge believed could go forward and what couldn’t go

forward without notice, comment, and appeal. Remember, in this

case, we have had three different court orders. The middle order,

which was where the judge seemed to suggest that everything

should stop, was the order that we responded to, basically directing

our people to comply with the order. After that order, then Senator

Harkin and Senator Bingaman, who were not in danger of being

held in contempt of court if they missed a judgment on what this

judge wanted, wrote to us and told us we were being way too conservative. Subsequently, the plaintiffs filed a motion for clarification and the judge came up with that third order, where he said

these things can go forward without notice, comment, and appeal,

and these other things can’t. And that is the third order that Congresswoman Herseth and I were talking about earlier. So the short

answer to your question is yes, the issues that Senator Harkin and

Senator Bingaman were concerned about are now going forward

15

without notice and comment and appeal, but they are going forward in that fashion because the judge clarified that he didn’t

mean to sweep them into his holding.

Mr. SALAZAR. Thank you. I yield back.

The CHAIRMAN. I thank the gentleman. The gentleman from Louisiana, Mr. Boustany.

Mr. BOUSTANY. Thank you, Mr. Chairman.

I know we are all interested in sound scientific data to support

the regulatory framework that exists and that we build, and given

that there are many different kinds of chemical compositions of fire

retardants, were there any specific scientific studies that were cited

in regard to fire retardants in that Montana court case that would

back or justify the court decision, and specifically that would have

led the court to deny the use of categorical exclusion for fire

retardants?

Mr. REY. In the case in Montana, it didn’t have anything to do

with a categorical exclusion. The issue there was, we had been

using fire retardant on the basis that we were responding to emergency circumstances, and that therefore the formal NEPA analysis

that normally would attach to that wasn’t appropriate. And my

recollection is, in the Montana case, the plaintiffs did provide evidence of instances where retardant did escape and get into water

bodies and result in environmental impacts. And that is a known

factor. We do have protocols to try to use the retardant as safely

as possible to keep it out of water bodies, knowing that if it is directly applied to a water body, there will be some environmental

implications that would be undesirable.

Mr. BOUSTANY. So you do have pretty good scientific studies to

support the use of categorical exclusion for fire retardants. Is that

a fair statement?

Mr. REY. We don’t use fire retardant under a categorical exclusion. There are different circumstances under the National Environmental Policy Act, which allow you to respond to emergency situations, when human life and property is at risk. And we were

using our fire retardant without an environmental impact statement under that standard. So categorical exclusions didn’t have

anything to do with it.

But the other part of your question is, do we have sound scientific evidence to make us comfortable that using retardant with

the proper protects and in the right way will have a minimal environmental impact? We do and I described for the Chairman some

of the studies that we have done, relative to retardant use. That

having been said, if it is used properly or in circumstances where

the guidelines aren’t followed, we know that there can be some environmental implications associated with that, and those we have

to minimize, given the reality that we are in firefighting environment whenever we are using retardant.

Mr. BOUSTANY. I thank you for the clarification and I yield back.

The CHAIRMAN. I thank the gentleman. The gentleman from

Michigan, Mr. Schwarz, is recognized.

Mr. SCHWARZ. I want to be clear that I understand precisely

what is going on here, and let me preface my remarks with saying

I will reference property that I own in the State that I don’t represent, and I own property in the Flathead Valley of Montana. The

16

fire on the north fork of the Flathead 2 years ago was clearly visible from my home, and we wondered how far down the valley it

would come. And the Bitterroot fire also was one that I was very

aware of because, for days on end, we could not see across Flathead

Lake because of the fire there. So and I have relatives by marriage

who are in the timber industry. So in the spirit of full disclosure,

I wanted to preface my remark with that.

Is it a fair statement to just say, if categorical exclusions are disallowed by a Federal court anywhere, it could be in the northern

part of the State of Michigan, where we have lots of National Forest land, that unequivocally it inhibits the Forest Service and its

initiatives for prudent forest maintenance and management, period, is that clear and unequivocal statement that I could take back

home to the folks and say that is why I am thinking that it is pretty important that H.R. 4091 be moved along, because you are really

being inhibited by this court decision? Is that a fair statement?

Mr. REY. Yes.

Mr. SCHWARZ. I yield back, Mr. Chairman.

Mr. REY. See, I am capable of a brief answer every once in a

while, I guess.

The CHAIRMAN. Mr. Secretary, I have one last question. Would

you summarize the current status of the litigation for us and where

you see it going from here?

Mr. REY. Well, where I see it going from here is anybody’s guess,

but the current status is that the court, at the district court level,

has before it the Government’s motion to stay the impact of decision pending appeal to the circuit court. And we hope that now all

the briefing on that motion is completed, that we should hear from

the judge shortly. What he will do is anybody’s guess. He could

stay the decision, allowing the status quo prior to his decision to

stand, or he may decline to do that. The Government has filed a

notice of appeal to the Ninth Circuit Court of Appeals, and I daresay that is where the next action will take place, before the Ninth

Circuit. There is no briefing schedule set yet for the Ninth Circuit.

As you probably know, the Ninth Circuit has a very heavy case

load relative to the other circuits, and I would guess that we are

unlikely to get a decision on the merits for some considerable

amount of time; certainly, not less than 8 months to a year. So depending on what the district court judge does with respect to the

motion to stay, we could make it into the next season with these

circumstances still pending before us.

The CHAIRMAN. Is there any litigation going on in any other circuit that is related to this same issue that could conflict with the

decision of this judge?

Mr. REY. No, and I would expect we won’t see that litigation

occur. In this case, and I am speculating now, the plaintiffs have

a pretty good decision in the Ninth Circuit. Why not wait and see

what the Ninth Circuit does with that, rather than set up the prospects for a conflict in a different circuit. Certainly, there is other

litigation on fuel reduction projects around the country. There is no

shortage of that. In fact, half of the projects that were initiated

under the Healthy Forest Restoration Act are under appeal today,

so that GAO percentage that was mentioned earlier seems to be

holding true. But if I were to speculate, I would speculate that

17

these identical issues won’t be raised in another circuit, because

that would seem to be strategically not advantageous.

The CHAIRMAN. Well, certainly not by the same type of proponent

of the legislation that we are talking about today, but perhaps by

a community or by another organization or individual or business

that is impacted by the stay that is on one of the projects in another part of the country.

Mr. REY. That is possible. They could challenge the basis for the

delay and try to get a different ruling out of the court. The problem

there, of course, is that by the time they got a ruling, we might be

through the 135-day period, in which case, we would proceed with

the project and the court would probably dismiss their challenge,

as there no longer being a case in conflict.

The CHAIRMAN. I understand. And there is also a question of

whether they would have standing as opposed to the Forest Service.

Mr. REY. That is correct.

The CHAIRMAN. The Forest Service, has the Government looked

at the possibility of bringing action to other places to allow that

local jurisdiction to allow them to go forward with an action?

Mr. REY. I don’t know how we would organize to do that. In the

case, in this instance, we are the decisionmakers, so somebody has

to sue us. Now, if somebody sued us using the Earth Island case

as precedent, then we would argue against that in that other jurisdiction, and perhaps another judge might take a different view of

it.

The CHAIRMAN. Very good. Thank you very much. We appreciate

your contribution today.

Mr. REY. I have been informed by staff that I need to clarify two

points here, so let me do that. In response to the question of how

many CEs we have, I was closer to being right with my first guess.

The total number is 32. And in response to Congresswoman

Herseth’s question about maintenance activities along utility lines,

I was generally correct. If there is ground-disturbing activity associated with it, notice, comment, and an opportunity for appeal

would be required. But if it was just routine maintenance that

didn’t involve disturbing the soil, then probably that would fit

under one of our existing categorical exclusions. And under the

judge’s clarification, notice, comment, and appeal wouldn’t be required.

One other thing that I would like to clarify is what I think the

long-term impact of this kind of decision will be. As I said earlier,

this decision didn’t disallow categorical exclusions, it simply said

that for many categories of activities covered there under, notice,

comment, and an opportunity for appeal are required. And that

adds, at the bottom line, 135 days to the project. But more broadly

and over time, I think the effect of this decision, if it is left standing, will be that more and more of our line managers will look at

their vulnerability in the face of likely appeal and decide that instead of using a categorical exclusion in the first instance, they

might as well go ahead and do an environmental assessment so

they have got a more robust record that is easier to defend during

the appeals process. Certainly, over the years, we have found our

environmental assessments growing longer and longer and longer

18

as a consequence of the reality and the fear of administrative appeals and litigation; continued to lengthen those documents, because line officers wanted to make sure that they had thought of

everything possible to put in the record to be able withstand an administrative appeal. I think, over time, that same dynamic is going

to occur here, and what you will see is less and less use of categorical exclusion, more and more environmental assessments, as line

managers to try to bulletproof their records. And the cost impacts

of those are going to be to increase the cost of conducting these activities anywhere from 3- to 5-fold, as well as, of course, increasing

the time beyond the mere 135-day limit. That is something I didn’t

mention but I wanted to elaborate on before I leave. Thank you.

The CHAIRMAN. Thank you, Mr. Secretary, and we will stay in

touch with you about this litigation. It concerns us greatly and we

are interested of what contribution we may make to a solution to.

Obviously, that will depend upon the outcome of the court case, but

as was noted earlier, we have also legislation that will help to clarify some of these questions.

Mr. REY. Let us know if there is anything you need from us.

The CHAIRMAN. Thank you.

I would now like to invite our second panel to the table; Dr. Michael Mortimer, professor of forest law and policy of Virginia Tech

from Blacksburg, Virginia, and on behalf of the Society of American

Foresters; Mr. John Hofmann, director of natural resources with

the Regional Council of Rural Counties from Sacramento, California; Mr. Time O’Hara, vice president of Minnesota Forest Industries from Duluth, Minnesota, on behalf of the American Forest

and Paper Association; and Mr. M. Brad Robinson, president of

Gunnison Energy Corporation from Denver, Colorado.

Dr. Mortimer, welcome. You are from my neck of the woods, and

we are delighted to have you with us today.

STATEMENT OF MICHAEL MORTIMER, PROFESSOR, FOREST

LAW AND POLICY, VIRGINIA TECH UNIVERSITY,

BLACKSBURG, VA

Mr. MORTIMER. Thank you, Mr. Chairman. Members of the committee, I am pleased to have the opportunity to appear before you

today to discuss a pressing National Forest management issue. I

wish to make my comments today on behalf of the Society of American Foresters and its 15,000 forestry professionals.

The National Environmental Policy Act, or the NEPA, has been

in effect for nearly 40 years. Its dual requirement to involve the

public and to analyze the potential environmental impacts of major

Federal actions have provided safeguards against careless development and unforeseen consequences.

In enacting NEPA, Congress provided a useful mechanism for

categorically excluding from repeated environmental analysis

smaller projects that afford very little risk in the way of environmental impacts and those projects that are also considered emergency actions. These types of actions, or these categories of actions,

should be expeditiously implemented and warrant exemption from

administrative appeals. The SAF supports the recently introduced

legislation, H.R. 4091, which would respond to a recent court deciVerDate 11-SEP-98 15:44 Jan 04, 2006 Jkt 000000 PO 00000 Frm 00021 Fmt 6633 Sfmt 6633 F:\DOCS\109-20 HAGRI PsN: HAGRI
19

sion hindering timely implementation of actions that have insignificant environmental impact.

The Forest Service currently has several categorical exclusions as

allowed under the NEPA, including those that are components of

the Health Forest Initiative and the Healthy Forest Restoration

Act. The exclusions aid in reducing hazardous fuels, addressing insect and disease outbreaks, and rehabilitating forests after catastrophic events. It is important to note that these forest health-related categorical exclusions require full compliance with applicable

environmental laws. Additionally, projects implemented under

these exclusions must still be consistent with the forest management plans required under the National Forest Management Act,

and those plans are developed with significant public involvement

and environmental analysis.

The categorical exclusions that we have spoken about today can

provide the Forest Service with the means to accelerate accomplishment of urgent projects on the ground. However, the agency

cannot take full advantage of the efficiencies offered by these exclusions without relief from the current statutory appeals process.

Judge Singleton’s recent ruling in the Earth Island Institute case

has unfortunately clouded the relationship between categorical exclusions and the appeals process. While the court clearly recognized

that the Appeals Reform Act ‘‘certainly permits exclusion of environmentally insignificant projects from the appeals process,’’ the

court does not seem to understand that what it is describing are

in fact categorically excluded projects.

The court then compounds this problem by creating an artificial

distinction where none exists. The court held that while the Forest

Service is clearly not required to make every minor project it undertakes subject to the appeals process, it is required to delineate

between major and minor projects. The court’s apparent logic here

is that minor insignificant projects do not require an appeals process, whereas major insignificant projects do.

There is no such distinction between major and minor in the definition of categorical exclusion. The critical question in NEPA is instead whether actions will significantly impact the human environment. The size or scope of the project is largely irrelevant. Only the

environmental impacts are of concern. What Judge Singleton has

done is create a new test to determine whether a categorical exclusion is appealable based on whether it is a major or minor action.

Since this major versus minor distinction is not currently defined,

only another judge, on a case-by-case basis, can decide that question conclusively, unless Congress acts to remedy the situation. The

Earth Island Institute case has inappropriately blended the NEPA

process with the appeals process. The consequence is uncertainty

for the agency and undoubtedly additional lawsuits challenging the

use of categorical exclusions in the future.

Recent research on Virginia’s National Forests has shown that

the appeals process inevitably slows down implementation of categorically excluded projects. In the cases we examined, the public

comment and appeals process added an average of 4 months, essentially doubling the implementation time for what should have been

quickly completed, low impact projects.

20

It is worthwhile noting that in none of the appealed categorical

exclusion projects we studied, did the information raised on appeal

lead to the reversal of the original Forest Service decision. It was

in fact troubling that so many concerns were raised during the

post-decisional period that could have been raised prior to the land

manager’s decision, had the appellants wanted to contribute to improving the projects and the agency decisions.

In closing, as I was helping to coordinate the State of Montana’s

post-fire efforts on its forestlands in the Bitterroot Valley following

the catastrophic fire season in the year 2000. It was indeed painful

to watch the NEPA and appeals processes grind down the Forest

Service’s ability to respond promptly to the crisis. Categorical exclusions can restore commonsense to how the NEPA is applied. Mr.

Chairman, it is undeniably important that efforts with H.R. 4091

move forward. The recent decision by Judge Singleton in the California district court is unfortunate, and demands that Congress

clarify how categorical exclusions and the Forest Service appeals

process fit together. The Society of American Foresters supports

your initiative and supports efforts to restore the ability of the Forest Service to act in a timely fashion to address forest health and

other land and resource management needs. Thank you.

[The prepared statement of Mr. Mortimer appears at the conclusion of the hearing.]

The CHAIRMAN. Thank you, Dr. Mortimer. Mr. Hofmann, welcome.

STATEMENT OF JOHN B. HOFMANN, DIRECTOR, NATURAL

RESOURCES, REGIONAL COUNCIL OF RURAL COUNTIES

Mr. HOFMANN. Thank you, Mr. Chairman and members of the

committee for the invitation to address the impacts of the application of the Appeals Reform Act on projects agreed to within Community Wildfire Protection Plans. At this time, we are aware of 57

Community Wildfire Protection Plans within 29 California counties, 15 of which include all or most of the at-risk communities

within the county.

At the cornerstone of a Community Wildfire Protection Plan are

four basic requirements: first, it must identify and prioritize areas

for hazardous fuel reduction treatments with recommendations for

the type and method of treatment; second, it must recommend the

measures that reduce structural ignitability; third, it must accomplish those criteria within the context of collaborative agreements;

and four, it must be agreed to by the local Government, local fire

department, and State forest management agency, in consultation

with Federal agencies and interested parties.

The areas and treatments recommended by the plans are developed collaboratively with all interested parties. This collaborative

process invites debate, science, emotion, and eventually compromise, balance, and acceptance. The debate continues until the

community participants satisfy locally elected Government leaders

that the plan is socially acceptable, and that local and State fire

experts, that the plan will protect the at-risk communities. Categorical exclusions provide communities an incentive to collaboratively meet standards proven to not have a significant effect on

the environment and be noncontroversial

21

The application of the Appeals Reform Act to categorical exclusions impacts the implementation of a Community Wildfire Protection Plan in a number of ways. First, the scoping required under

the Appeals Reform Act would duplicate hazardous fuel reduction

requirements. The categorical exclusion most likely to be used to

implement, excuse me, a Community Wildfire Protection Plan is

the hazardous fuels reduction categorical exclusion that was spoken of earlier. The rule specifies that fuels reduction activity shall

be identified through the same collaborative framework required

for the development of the treatments in a Community Wildfire

Protection Plan. The three-tier collaborative framework invites participation at the local, State, and national level. The Federal Register notice for the hazardous fuel reduction category adds, this collaboration will, where appropriate, seek to address conflicts concerning alternative uses of resources. A second scoping period

would be duplicative of the required collaborative process.

Second, scoping and appeals would jeopardize community collaboration and support. Application of the Appeals Reform Act would

require scoping after a community had already collaboratively developed a recommendation, or in essence, open a second scoping period. This second scoping provides opportunities for those not satisfied with a Community Wildfire Protection Plan process to modify

projects or even override the community collaboration to the extent

that the community might no longer support the project. The second scoping period has the power to override the required community collaboration. Scoping and appeals for a categorical exemption

thereby reduces the incentive for a community to collaboratively

develop a Community Wildfire Protection Plan, only to subsequently modify and delay by those outside the Community Wildfire

Protection Plan planning process.

Third, scoping and appeals will reduce the incentive for environmentally simplified treatments. For projects that require environmental assessment or an environmental impact statement, Federal

agencies must evaluate, at a minimum, the community-recommended treatments. If, during the scoping or agency review, a

different alternative is recommended, the agency must still evaluate the community recommendation along with the scoping or the

agency recommendation. However, Federal agencies are not obligated to evaluate community recommendations, in addition to their

own, for projects that meet the categorical exclusion standards.

Therefore, communities that want to ensure their recommendations

are evaluated, would be discouraged from meeting the environmentally benign categorical exclusion standards.

Fourth, the scoping and appeals will increase the projected implementation costs. Communities must stretch existing funds to

implement wildfire protection plans. Last year, California communities requested $33.5 million in grant assistance to implement 366

projects agreed to in Community Wildfire Protection Plans. The

combination of State and Federal funding totaled only $8.7 million,

which funded 127 community projects. Where Federal funds are

used to reduce fuels on private lands, the private projects must also

be NEPA compliant. Conducting a second scoping period with its

accompanying analysis will further aggravate the funding scarcity

on both Federal and private lands.

22

The fifth, scoping and appeals will jeopardize the Community

Wildfire Protection Plan strategy. A Community Wildfire Protection Plan is a strategy, not a project. The effectiveness of the strategy is dependent on the collective integration of all projects. With

significant modifications to individual projects, the strategic plan

my no longer be effective in protecting communities. The hope of

a Community Wildfire Protection Plan was to bring peace to the

forest wars through collaboratively resolving differences in communities. Adding a second scoping and appeals requirement to collaboratively develop environmental insignificant projects undermines

the cornerstones of a Community Wildfire Protection Plan.

Thank you, Mr. Chairman and members of the committee. I will

be happy to answer questions that you may have.

[The prepared statement of Mr. Hofmann appears at the conclusion of the hearing.]

The CHAIRMAN. Thank you, Mr. Hofmann. Mr. O’Hara, welcome.

STATEMENT OF TIM O’HARA, VICE PRESIDENT, MINNESOTA

FOREST INDUSTRIES

Mr. O’HARA. Good afternoon, Mr. Chairman and committee members. My name is Tim O’Hara and I am vice president of forest policy with Minnesota Forest Industries. My testimony today is also

on behalf of the American Forest and Paper Association. AF and

PA is a National trade association I represent. It is forest landowners, manufacturers of forest products, and producers of pulp

and paper products. In 2004, the U.S. forest products industry had

sales of over $230 billion and employed 1.1 million people and accounted for 7 percent of U.S. manufacturing.

We are interested in this issue, because many forest products

companies and their 1.1 million employees have a direct interest in

the management of U.S. forestlands, both public and private. Insect

and disease outbreaks and wildfires do not respect property boundaries. It is important that Federal agencies recognize significant

threats that Federal non-action poses to adjacent communities and

non-Federal forestland owners.

The forestlands administered by the Forest Service are facing a

forest health crisis. 72 million acres of forestlands are at high risk

of catastrophic wildfire, and an additional 26 million acres are at

risk from insects and disease epidemics. Categorical exclusions

were developed to address these issues. The Forest Service desperately needs these types of tools to simplify the excessively complicated documentation process, and to move forward with the critical on-the-ground activities in a timely manner.

There are several examples of forest health problems from all

over the country which highlight the urgent need for these categorical exclusions. The southern pine beetle outbreak in the Ocala National Forest in Florida in 2001 is an example of this. According

to Forest Service documents, the outbreak was approximately 150

acres. The agency prepared environmental assessment and proposed harvest of the infected trees. By the time the agency completed the public review and appeal process, 9 months had passed.

Over this 9-month period, the infestation had grown from 150 to

1,500 acres, 10 times the size of the original infestation. In California, forestlands within the Angeles, Cleveland, and San Bernardino

23

National Forests are suffering from the largest bark beetle infestation in the last 50 years. Categorical exclusions are being used to

remove diseased trees that are threatening to fall on homes, power

lines, and the emergency evacuation routes. In Colorado and North

Dakota, categorical exclusions have been used to control the spread

pine beetle and to salvage infested trees and salvage prior to them

losing their value as lumber.

We now face a situation where professional land managers within the Forest Service are not able to undertake needed activities in

a timely fashion. A U.S. district court’s recent decision has removed

a much-needed tool from the forest manager’s toolbox, a tool that

was created to address serious forest health issues, where time unfortunately is not an asset. But not only will critical forest management actions not take place on the ground in a time frame needed

to control insects, disease, or reduce the risk of fire, the Forest

Service’s good faith and credibility may also be held at question. An

example of this is in Minnesota on the Superior National Forest,

where Community Wildfire Protection Plans were completed for

Cook and Lake Counties. These plans were developed from a community collaborative-based process that involved local Governments and the Federal Government. Without the use of the categorical exclusions, the ability of the Forest Service to implement

their portion of the projects will be significantly delayed. Let us

hope these communities are patient enough to continue with this

very worthwhile effort.

Congress has provided the Forest Service the wide range of tools

to manage the forest health crises facing our National Forests. The

Healthy Forest Restoration Act of 2003 is an example of this. These

tools allow Forest Service professional managers to move forward

with certainty on activities that will help restore the health of our

National Forests. And similar action is now needed from Congress

to allow categorically excluded projects to move forward in a timely

manner.

AF and PA looks forward to working with this committee and

others to help develop solutions to address the burdensome process

requirements that delay needed action on our National Forests.

Thank you for the opportunity to testify. Mr. Chairman, I would be

happy to answer questions from the committee.

[The prepared statement of Mr. O’Hara appears at the conclusion

of the hearing.]

The CHAIRMAN. Thank you, Mr. O’Hara. Mr. Robinson, we are

pleased to have you with as well today.

STATEMENT OF M. BRAD ROBINSON, PRESIDENT, GUNNISON

ENERGY CORPORATION

Mr. ROBINSON. Thank you. Gunnison Energy Corporation has

been exploring for natural gas in and around the Grand Mesa,

Uncompahgre, and Gunnison National Forests on the western slope

of Colorado for the last 4 years. What I wanted to talk about today

was the direct impact on our company of this recent court ruling

out of the Eastern District Court in California.

Gunnison Energy and a partner, SG Interests, acquired a natural gas pipeline system and a natural gas field that have been in

existence for about 20 years. We did that at the first of the sumVerDate 11-SEP-98 15:44 Jan 04, 2006 Jkt 000000 PO 00000 Frm 00026 Fmt 6633 Sfmt 6633 F:\DOCS\109-20 HAGRI PsN: HAGRI
24

mer. This gas field is located in western Colorado between 8,000

and 10,000 feet of elevation. Because of that, we can only do work

in the summer and fall months. The wells, most of the wells in the

field are owned by Gunnison Energy and its partners, but there are

also third-party producers who own wells in the area. We were in

communication with the Forest Service for months prior to this acquisition, to be sure we understood the types of permits that would

be required to operate the pipeline system, as well as to do certain

modifications to the system, which were done for safety purposes

and operational efficiencies. Some of this work involved moving a

pipe that was exposed in a creek and is in danger of rupturing during the next spring runoff, snow runoff. Some of it involved merely

moving some equipment around on the pipeline, and also changing

some piping at a compressor station so that it would meet current

operating codes. So basically, we are talking about safety work and

just minor modifications.

The Forest Service approved this work via categorical exclusion

because we weren’t building any new roads or disturbing any new

ground. But before we could complete the work, the Forest Service

was forced to rescind both our operating permit for the pipeline, as

well as the permits that were issued to do these improvements. In

addition to that, our partner, SG Interests, was trying to build a

line down to some wells they had just drilled, trying to get their

gas to the market this winter. They were forced to terminate their

work as were other third-party producers. The Forest Service has

now come back and reauthorized that work, but the problem is, is

that the contractors who were doing it have now moved on to other

projects and can’t immediately restart our work. And again, since

this pipeline system is at elevation in the mountains, it is virtually

assured we won’t be able to do this work before the snow stops us

this winter. And normally, you cannot recommence that work until

June or July of the following year.

So at this point, we have at least three and as many as five gas

producers who are unable to get their gas to the market this winter

at significant cost to them. We also have three companies that

went ahead and started work and invested significant funds of

money to get gas to the market only to have that work stopped in

spite of our efforts and the Forest Service’s efforts.

We also have a court ruling that, in my opinion, in spite of the

two clarifications, is far from clear. I believe it is item No. 10 of

the clarification that presumably says that if you are clearing vegetation for the purpose of doing seismic exploration work, you need

notice and a comment period. But it also talks to minerals and energy work and facilities, so it is really not clear what it is talking

about, and I can promise you that there will be environmental

groups that will go back to court to stop other work being done

under categorical exclusions. And again, in a company like our

case, those sorts of delays, waiting for the appeal periods and stuff

to lapse, can mean 6 to 12 months delay in our work because of

the winter conditions. So I also urge this committee to try to adopt

H.R. 4091, which would exempt categorical exclusions from the Appeals Reform Act.

And I also just wanted to add two other comments. I believe Mr.

Rey talked about the difference between a categorical exclusion, an

25

environmental assessment, and an environmental impact statement. We were just completing an environmental assessment to

drill only 18 gas wells in an area where we already have existing

production. And the document that we produced to do that is about

this thick. We have been working on it for 18 months. It has probably 6 months to go before it will be final. We have expended in

excess of $250,000 on that study. So the distinction between allowing minor work for a via categorical exclusion and pushing something into an EA can mean 2 years and hundreds of thousands of

dollars. And I guess the final thing, I would like to agree with a

couple of the other panel people that, by and large, the Forest Service has excellent line managers. They need discretion to do their

jobs. So anything you can do to facilitate that, I think is good.

Thank you.

[The prepared statement of Mr. Robinson appears at the conclusion of the hearing.]

The CHAIRMAN. Thank you, Mr. Robinson.

Dr. Mortimer, would exempting categorically excluded projects

from administrative appeals take away public participation in the

decisionmaking?

Mr. MORTIMER. No, there is still a number of entry points for the

public to participate in the process. Of course the categorical exclusions themselves, when they are developed, as Under Secretary

Rey mentioned, they are already part of the NEPA process, which

entails public participation. They are also part of an administrative

rulemaking process which has its own variation on public participation. They are also integrated into the forest management plans

that each National Forest has in place and is required to have in

place, and so there is public participation that occurs throughout

that process. And final, for better or for worse, there is also the

remedy of litigation which, in a very strict sense, could be considered a form of public participation and decision making.

The CHAIRMAN. You mentioned that the precipitous decline in

Forest Service timber sales in the last 15 years has not been accompanied by a decline in formal challenges to Forest Service proposals. Am I to take this to mean that environmental groups are

challenging fuel reduction and forest restoration projects?

Mr. MORTIMER. It would be difficult to break that out without

taking a look at the data more closely, but the trend that is appearing is that even though the volume of timber that is being sold and

harvested from the National Forest is in decline and has been in

decline for the last 15 years or so, litigation has not followed that

trend. The number of lawsuits has remained steady and shows

some increase actually, so it is becoming more intense for National

Forest managers to face litigation, even though they are not cutting

nearly the amount of timber that they once were.

The CHAIRMAN. Mr. Hofmann, how do you see the function of the

Community Wildfire Protection Plan changing with the application

of scoping and appeals to categorically excluded projects?

Mr. HOFMANN. The main advantage of a Community Wildfire

Protection Plan is that the community comes together that involves

all of the same individuals that would typically be involved in a

scoping process. But instead of and responding to the Forest Service with their comments individually, the respond to each other and

26

they work those things out. That is sometimes a painful process,

to negotiate across the table and then go to the Forest Service and

say here is what we all want, we as a public, pretty unanimously

would like you to do. I see that under this appeals process or under

the scoping process would go forward and apply to the categorical

exclusions, that would be not an incentive for the communities to

come together under that aspect, because you can always go

around the community and come into the second scoping process.

So why be engaged in the first scoping process and that heart

wrenching giving up things that you would rather not give up in

order to have a community compromise? So I think that is one area

that you would see the community compromises disappear.

I think that you would also see the community, to the extent that

they would continue on that process, they would not want to do a

categorical exclusion; therefore they would want to make sure that

their recommendations were not so environmentally friendly, if you

will, not so many environmentally benign, that they would require

an EA. That way the Forest Service would have to assess their recommendation, and not modify it later on down the process. So I see

that you would have more significant projects involved with that.

And then, of course, with the combination of those two, then you

would have to start asking, is it really worth it for us to sit down

at the table? Many of these projects, the Community Wildfire Protection Plans, have been in the process now for 2 years developing,

and the incentive to sit down for that 2-year period would disappear, if all can be changed later on down the road. So I see that

Community Wildfire Protection Plans may not solve the problem

that we had originally hoped that they would.

The CHAIRMAN. Mr. O’Hara, can you describe for me the impact

of delays on projects, such as the Devil’s Track fuel reduction

project and the Kawishiwi timber sale, on local communities in

Minnesota?

Mr. O’HARA. Mr. Chairman, the Kawishiwi timber sale and the

Devil Track fuel reduction projects are projects that plan to use the

categorical exclusions under the Healthy Forest Restoration Act.

And what I see the problem is, kind of a rippling effect. The Forest

Service has limited staff budget dollars to spend, so the opportunity

costs of going back and looking at those projects a second time, providing the public review, comment, appeal process will delay actions that the Forest Service kind of had in the pipeline to prepare

for meeting their forest plans’ objectives. And what happens there

is to the communities, the timber sales or timber or volume coming

out of those projects, and the economic activity associated with

those projects, just won’t take place. And to exacerbate the problem, the projects that were going to take place the following year

or the year after will also be delayed.

The CHAIRMAN. In your estimation, is the quality of forest habitats improved by these kind of delays?

Mr. O’HARA. No. If you look at our State and much of the Lake

States, the Forest Service land is intermingled with other ownerships. So you have State land, county land, private land,

intermixed with Forest Service lands. And the projects or forest

management activities on either one of these ownerships, if you

were to walk across them and look at what is happening in the forVerDate 11-SEP-98 15:44 Jan 04, 2006 Jkt 000000 PO 00000 Frm 00029 Fmt 6633 Sfmt 6633 F:\DOCS\109-20 HAGRI PsN: HAGRI
27

est, you won’t be able to say I am on county land, I am on Forest

Service land, I am on private land. So the activities that take place

in forest management do not change, but the delays could be catastrophic by not sanitizing areas that have insects or disease outbreaks.

The CHAIRMAN. Thank you. Mr. Robinson, on projects where the

agency was not using categorical exclusions, what portion of the

delays that you have experienced are attributable to the development of NEPA documentation and resolution of administrative appeal?

Mr. ROBINSON. In the area of oil and gas, virtually every single

environmental assessment or environmental impact study is appealed by some environmental group. At minimum, with an environmental assessment, you have got 105-plus days of notice, comment, and appeal built in. And I think I would agree with, I think

it was Mr. Rey that commented that because the forests, the people

in the forests doing these things believe they are going to be appealed, they tend to have an extremely onerous review process and

a reticence to issue them before they have double-checked every

word on every page. And so I think that the chance to have to appeal everything adds a significant delay to almost any project.

The CHAIRMAN. How much gas will be shut in this winter as a

result of the delays and confusion caused by Judge Singleton’s ruling?

Mr. ROBINSON. Well, I can’t say precisely, but somewhere between 2,500 and 5,000 MCF per day, which is enough gas to heat

hundreds of, if not a thousand, homes.

The CHAIRMAN. All right, thank you very much. The gentleman

from Colorado is recognized.

Mr. SALAZAR. Thank you, Mr. Chairman.

I just wanted to clarify something that you had in your statement that I don’t think you talked about, Mr. Robinson, but you

talked about a pipeline that was basically in jeopardy of being

damaged with the spring runoff. Not being able to fix that because

winter has set in, and if it does get damaged early in the spring,

what is the process? Do you have to go through the appeals process? Do you have to go through hearings, or can you actually go

in there and repair that immediately?

Mr. ROBINSON. Well, the fortunate thing that happened was

when the Forest Service re-approved some of or work. As you may

know, I don’t know if you were lucky enough to be home recently,

but we had about a week and a half of really pretty weather out

there and we were able to get that pipe repaired, so it has been

buried. But it was being hit by boulders, by boulders that were

coming down the creek this spring before we acquired it. Had that

pipeline ruptured, you obviously have a safety issue, but more importantly, there would have been natural gas liquids that would

have gone into the creek and polluted the creek. So had we not had

the clarification to the judge’s ruling, and had the Forest Service

not immediately approved our work, we would have been in danger

for that happening next year. Now, we have not been able to complete all of the other work to the pipeline, and it snowed last night.

There was a significant amount of snow in western Colorado last

night. I do not know if we will be able to complete the other work.

28

Mr. SALAZAR. Thank you. And, Mr. O’Hara, how much time does

it take to actually render lumber or timber useless after it has been

devastated by pine beetle or by other things such as fire?

Mr. O’HARA. Of course, that is going to differ by regions. The

southern region probably would be—I am guessing—3 months. Up

where I am from, Minnesota, after the blow-down that we had,

blue stain sets in rather quickly, probably 3 to 6 months, depending if the roots are still in tact or not. For pulp wood production,

you get a little longer window, maybe another 2 or 3 months before

the window deteriorates to such a point that you cannot make

pulp.

Mr. SALAZAR. Thank you, Mr. Chairman. I have nothing further.

The CHAIRMAN. I thank the gentleman. The gentleman from Minnesota.

Mr. GUTKNECHT. Thank you, Mr. Chairman.

Mr. O’Hara, I suspect you are more familiar than even I am with

the blow-down, but could you share with the committee what potentially could happen in northern Minnesota with all the trees

that are on the ground?

Mr. O’HARA. The blow-down Congressman Gutknecht is referencing occurred July 4, 1999. Most of the blow-down was in the boundary waters wilderness area, in the wilderness area. We had about

half million acres inside there blow down, and outside, I think,

110,000 acres blew down. So what we have is a lot of trees still

today that are kind of like piled up upon each other. So they are

getting very dry. There is some greening up, of course, a natural

regeneration. The risk of fire there is still real. They had one back

in August, the Alpine Lake fire, which burned, I believe, upwards

of around 2,000 acres, but cost $7 million to contain. And they were

very fortunate on that fire, that the containment was 75-percent

lake, so three-quarters of the fire was already surrounded by lakes.

But the threat of fire is still there, and to clean it up, it is virtually

impossible within the boundary lines.

Mr. GUTKNECHT. Well, not just in terms of cleaning up, but if

that did get out of control, how much fuel have we got on the

ground up there, and what kind of a fire would we have?

Mr. O’HARA. I can’t remember the exact tonnage, but it would be

a large conflagration. The fire, depending which way the winds are

blowing, could blow. Typically, we get a northwest wind, is our typical wind. So if you have a fire starting up in that area, you have

Tofte, Grand Marais, Lutsen, those cities and towns and communities that would be in the path of that fire.

Mr. GUTKNECHT. But it could literally burn all the way to Lake

Superior.

Mr. O’HARA. It literally could, yes.

Mr. GUTKNECHT. Thank you.

Mr. O’HARA. Yes.

The CHAIRMAN. The gentleman from Louisiana.

Mr. BOUSTANY. I have nothing.

The CHAIRMAN. I thank the gentleman. The gentleman from

Michigan is recognized.

Mr. SCHWARZ. One brief observation, if I could. Mr. Robinson,

there is a good deal of natural gas in western Colorado, where

Gunnison Energy is located, and also in the State of Wyoming. Is

29

the holdup, the environmental assessment problem, localized to

forestlands in Colorado, or would you say that this is a problem in

the entire gas producing, natural gas producing area? And do you

think western Colorado, actually, western Colorado, parts of western South Dakota and North Dakota, eastern Montana, Wyoming,

is it generalized or is it Colorado-specific?

Mr. ROBINSON. It is definitely a generalized problem. Anywhere

in the country that you are trying to do work on the forestlands,

the permitting process is arduously slow. Even being allowed past

standards that they apply that are different and more expeditious

than the Forest Service and that is another area. But if we could

ever get the Forest Service timelines and rules to coincide, we

would be a lot better off.

Mr. SCHWARZ. Would moving this legislation through and getting

the president’s signature on it ameliorate your situation to a greater or lesser degree?

Mr. ROBINSON. It would, yes. Yes, it would, to a greater degree.

Mr. SCHWARZ. OK, thank you very much. And just an observation to Dr. Mortimer, again, about there in Montana where you obviously spent some time down in the Bitterroots, which is 90 miles

south of, or it is directly west of where my place is. That was a horrendous fire, and Montanans are still, and my relatives in Montana

are still shaking their head and hoping and praying that something

like that doesn’t happen again. And to slow up steps that need to

be taken, cleanups especially in that area, which haven’t been

done, as you know, in years and years and years and years, to me

is unconscionable. So I thank you very much for your comments

today, and I will bring them back to the folks out in western Montana and tell them that at least there is some folks back in the

eastern part of the United States, as you know, that are looking

out for their interest. Thank you very much. Thank you, Mr. Chairman. I yield back.

The CHAIRMAN. I thank the gentleman, and I thank all of the

panelists for their contribution today. Today’s hearing has cast the

spotlight once again on the complexity of the maze of laws governing the Forest Service. While I do not question for a moment the

good intentions behind them, the fact is, they are open to novel

construction by the courts in ways that work the will of Congress,

and we are seeing that very plainly right now. Public involvement,

including the right to challenge forest management decisions, is intended to improve forest management decisions, not to stymie them

until they are meaningless. At this point, the courts will continue

to hear this case, even though the fire that led to the present dispute burned out almost 6 years ago. But we as a committee will

continue to evaluate this set of overlapping and conflicting laws

with an eye towards simplification and efficiency. And I want to

thank all of our participants today.

Without objection, the record of today’s hearing will remain open

for 10 days to receive additional material and supplementary written responses from witnesses to any questions posed by a member

of the panel, and we may submit several additional questions to

the members of this panel. This hearing of the House Committee

on Agriculture is adjourned.

[Whereupon, at 3:45 p.m., the committee was adjourned.]

30

[Material submitted for inclusion in the record follows:]

STATEMENT OF MARK REY

Mr. Chairman: Thank you for the opportunity to appear before you today to provide the Department’s assessment of the impacts of recent court rulings on the Forest Service use of categorical exclusions and fire retardants. For the litigation involving the use of categorical exclusions both parties have filed notices of appeal of

the ruling, and the Government has filed a motion for stay pending appeal. Due to

the on-going litigation in these cases, I am obliged to limit my testimony to the impacts of these court rulings on the Forest Service, and not the merits of the cases.

USE OF CATEGORICAL EXCLUSIONS

The recent court ruling on the Forest Service use of categorical exclusions has a

significant impact on a range of management activities throughout the country.

Thousands of projects that we had found to have insignificant environmental impacts will now be subject to formal notice, comment and appeal, lengthening the

time to conduct such activities, increasing their costs, and potentially increasing the

amount of information that will be needed to document decisions.

Furthermore, the ruling is inconsistent with congressional intent as we understand it for two categories of projects which Congress specifically legislated in order

to expedite agency work—applied silvicultural treatment projects under the Healthy

Forest Restoration Act and oil and gas development in the Energy Policy Act. In

both instances, Congress legislated categorical exclusions with the expectation that

the effects would be reduced process, cost and time to complete the high-priority

work. That expectation will be largely nullified by this ruling.

Of foremost concern is the effect of the court ruling on the hazardous fuels reduction work that is accomplished with multiple methods and often with multiple partners. For fiscal year 2006, we estimate that about half of the annual hazardous fuels

treatment target will be accomplished using categorical exclusions. This means that

all those projects are now subject to another 30 to 135 days of administrative process prior to implementation on the ground.

Categorical exclusions, as defined by the NEPA regulations of the Council on Environmental Quality (40 CFR 1508.4), are categories of actions that do not have a

significant effect on the human environment (individually or cumulatively) and have

been found to have no such effect by a Federal agency in the agency NEPA procedures. These categories of actions were established through public notice and comment for actions that were found to be minor in nature and to have individually

and cumulatively insignificant environmental effects. We have developed categories

of excluded activities through a public process supported by a record of analysis of

documented environmental effects of over 2,400 projects. The Forest Service used

this NEPA category—categorical exclusions—to identify projects and activities that

are excluded from the notice, comment, and appeal provisions of the Appeals Reform

Act. The Forest Service project appeal regulations (36 CFR 215), issued in 2003, provide that projects and activities which are categorically excluded from further analysis and documentation in an environmental impact statement (EIS) or environmental assessment (EA) are not subject to notice, comment and appeal.

The Earth Island Institute v. Ruthenbeck case (formerly Earth Island Institute

v. Pengilly) was filed in October 2003 by five non-profit groups alleging that the Forest Service’s authorization of the Burnt Ridge Restoration Project, on the Sequoia

National Forest violated the National Environmental Policy Act (NEPA), the National Forest Management Act (NFMA), the Appeals Reform Act (ARA) and the Administrative Procedures Act (APA). The original project analysis was categorically

excluded from additional documentation. A decision was made and documented in

a Decision Memo. This decision was withdrawn in March 2004 after the district

court for the Eastern District of California issued a preliminary injunction against

the project in December 2003.

The court nevertheless ruled on the plaintiffs’ facial challenge to the validity of

the appeal regulations (36 CFR 215) including the exemption of categorically excluded projects and activities projects from the notice, comment and appeal regulations. The court has since issued three decisions regarding the Forest Service project

appeal regulations at 36 CFR 215. First, on July 7, 2005, Judge Singleton filed a

ruling invalidating certain provisions of the project appeal regulations (36 CFR 215),

including the provision of the appeal regulation that exempted categorically excluded projects and activities from notice, comment and appeal. The judge stated,

The ARA certainly permits exclusion of environmentally insignificant projects

from the appeals process. For example, actions such as maintaining Forest Service

31

buildings or mowing ranger station lawns need not be subject to the notice, comment and appeal procedures. Actions that concern ‘‘land and resource management

plans,’’ however, ‘‘shall’’ be subject to notice, comment and appeal procedures.

On July 22, 2005, an attorney for the plaintiffs sent a letter to the Department

of Justice stating that he would move for contempt if he did not receive a letter by

July 26 stating the agency was immediately suspending all categorically excluded

actions implementing forest plans which have not been made subject to comment

and appeal. On July 28, 2005, plaintiffs filed a motion to hold the Forest Service

and Chief Dale Bosworth in contempt of court.

The Department of Justice, in its response, refuted the contempt claim and asked

the court to clarify that its ruling was effective only in the Eastern District of California and should apply only to decisions issues after July 7th.

The second order, on September 20, 2005, made by Judge Singleton clarified that

his July order applies nationally and prospectively from July 7, 2005. The Judge denied the plaintiffs’ motion for contempt, but warned that ’the Court fully intends

to enforce its orders.

On September 21, 2005, plaintiffs wrote another letter to Department of Justice

threatening a second motion to hold the Forest Service in contempt if the Forest

Service refused to immediately comply with the order.

In response to the judge’s order and faced with an aggressive plaintiff sending letters threatening contempt motions, the Chief of the Forest Service issued direction

to the field to immediately suspend all categorically excluded proposed actions and

ensure that all such projects are subject to the notice, comment and appeal provisions.

On October 19, 2005, the court issued a third order in response to the plaintiff’s

motion to clarify. Judge Singleton clarified what categorically excluded decisions are

not subject to notice, comment and appeal under the court’s order.

Based on the court’s order, the following actions are now expressly subject to notice, comment and appeal.

• timber sales;

• prescribed burning;

• cutting trees for thinning or wildlife purposes over 5 contiguous acres; (Thinning

is a critical activity for ecosystem restoration. Timber sales, prescribed burning, and

thinning are conducted to reduce hazardous fuels.)

• creating or maintaining wildlife openings; (This activity is a key wildlife habitat

improvement for creating habitat diversity, edges and hiding cover.)

• designating Off Highway Vehicles (OHV) routes;

• constructing new OHV routes and facilities;

• upgrading, widening, or modifying OHV routes;

• special use permits for OHV activities;

• gathering geophysical data using certain techniques;

• trenching for data gathering on mineralization; and,

• clearing vegetation for sight paths for minerals, energy, or geophysical investigation or support facilities. (Inclusion of these last 3 activities imposes new procedural

delays for virtually all oil and gas exploration activities.)

IMPACTS OF ORDERS ON FOREST SERVICE ACTIONS

For the kinds of projects that include actions not exempted by the October 19

order, the Forest Service will now have to provide notice and opportunity to comment and appeal. The notice, comment and appeal process could add up to 135 days

to the timeline before a project can be approved and implemented. The level of public interest and comment on a project determines if an appeal period, with a potential 105 day period for filing and reviewing appeals, is required for a project decision. Additionally, this court ruling would apply to any new categorical exclusions

developed in the future for the actions listed in the October 19 order, thereby potentially expanding future impacts of this court ruling.

I have some data to share with the Committee on the impacts of these court orders on Forest Service activities. We asked each of the nine Forest Service Regions

to provide estimates of categorically excluded projects with activities listed in the

October 19 order that are now subject to notice, comment and appeal. All of these

projects would have been prepared with our previous public involvement and environmental analysis procedures, but would have been exempt from notice, comment

and appeal.

The Regions report that as a result of the October 19 clarifying order, over 800

projects are now subject to notice, comment and appeal. This figure includes projects

in fiscal years 2005 and 2006. The Regions report the following number of projects

for each of the activities listed in the October order:

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• about 260 small timber sales, each of which may include up to 1,000 acres of

hazardous fuels treatments by thinning, up to 70 acres of live tree harvesting, salvaging of dead or dying trees up to 250 acres, or sanitation harvest to control insects

or disease of up to 250 acres;

• about 210 prescribed burning projects for hazardous fuels reduction treatments

on up to 4,500 acres;

• over 30 wildlife opening projects;

• about 7 OHV route designations;

• over 9 new OHV route and facility construction;

• about 14 OHV route modifications;

• over 6 special use permits for OHV activities or events;

• over 215 projects for cutting trees for thinning or wildlife habitat improvement

in an area greater than 5 acres;

• over 20 geophysical data gathering projects;

• about 7 trenching projects for mineralization evidence; and

• about 20 projects for clearing vegetation for sight paths for minerals, energy,

or geophysical investigation or support facilities.

The Regions estimated the acreage of these projects now subject to notice, comment and appeal to be over 1.2 million acres. This acreage figure includes about

900,000 acres of hazardous fuels reduction projects as part of the national FY 2006

target of 1.8 million acres for hazardous fuels reduction treatments. This 900,000

acre estimate includes almost 600,000 acres of prescribed burning in the Southern

Region. One effect of the increased timeframes is missing prescriptive windows of

air quality limitations for prescribed burning. Delaying prescribed burning activities

increases fuel loading, creating higher risks and potentially higher smoke emissions.

Moreover, increased fuel loads add to the complexity of the burns with the potential

for fire escapes and need for more people and equipment, thus increasing costs.

Higher fuel loads increase fire intensities and behavior putting project crews at risk.

An additional potential impact the Regions report is to neighboring communities.

Over 230 neighboring communities would potentially benefit from these hazardous

fuels reduction projects if they were not delayed.

As was previously stated, the categories of excluded activities were developed

through a public rulemaking process supported by a record of documented environmental effects which concluded that these activities have insignificant environmental effects.

The procedural changes brought on by rulings in the Earth Island Institute case

will have an important consequence on our ability to conduct routine operations

where there are no adverse effects on extraordinary circumstances. Being able to

move swiftly to accomplish project work is essential to people whose livelihood is

dependent upon time-sensitive decision making. In fact, the risk of not taking action

may often exceed the environmental effects of project implementation.

Our inability to promptly handle routine matters has an effect on the public, our

customers and partners. Hazardous fuel treatment operations that are coordinated

across land ownerships will become more complicated, time consuming and potentially less effective due to procedural delays that affect National Forest System

lands that adjoin other Federal, state and private lands to be treated in the same

proposal. An overarching goal in the President’s Healthy Forest Initiative (HFI) and

the Congressionally-enacted Hazardous Fuels Reduction Act (HFRA) was to reduce

the amount of time and cost associated with the forest restoration and hazardous

fuels reduction treatments where the scope of effects was well understood and the

Forest Service’s experience had concluded there were no significant environmental

effects. Achieving this goal is now that much more challenging.

But the impacts of the ruling go beyond fuels reduction projects. In the recently

enacted Energy Policy Act, (P.L. 109–58) Congress directed Federal agencies to respond to energy-related activities more quickly. Many of the routine and minor proposals we deal with involve coordination of those proposals and activities on BLM

lands. The difference of time in terms of our ability to respond to proposals versus

those of the BLM creates unnecessary procedural challenges when responding to energy-related proposals.

Our off-highway vehicle program provides enjoyment for thousands of motorcycle,

ATV, jeep and snowmobile enthusiasts. Special events on National Forest System

lands are a popular activity for many clubs, an activity that requires a special use

permit. Because clubs often do short-term event planning, in the past we have been

able to respond within a few weeks to meet their schedule. Now, we will need up

to 7-months lead time for notice, comment, analysis, and appeal opportunity to issue

a special use permit for an OHV activity. For example, a motorcycle club had

planned an enduro ride on the Eldorado National Forest in California. The event

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had to be cancelled because the Forest Service couldn’t comply with the court order

and issue the special use permit in time.

The recent ruling on project appeal procedures for categorically excluded activities

will have a far-reaching impact on the Forest Service’s ability to quickly respond

to resource management needs and partner requests for work of a routine nature

with insignificant environmental effects. We know the recent court orders impact

not just our activities, but also our neighboring communities and land owners, permittees, contractors, and other government agencies. Moreover, the court’s ruling

has resulted in some loss of efficiency gained and we have, therefore, lost some of

the efficiencies gained in the last few years with the President’s Healthy Forest Initiative and your Healthy Forest Restoration Act for ecosystem restoration and hazardous fuels reduction.

USE OF FIRE RETARDANT

In a decision filed on October 24, 2005, the Federal district court for the District

of Montana held that the Forest Service’s failure to conduct an environmental analysis on the use of long-term chemical fire retardant on National Forest System land

violated the National Environmental Policy Act (NEPA), and that the agency’s failure to engage in formal consultation on this activity similarly violated the Endangered Species Act (ESA).

Regarding NEPA, the court concluded, ‘‘The USFS decision to allow the use of

chemical fire retardant on national forests has a direct immediate effect on the environment.’’ Additionally, the court stated, ‘‘...the USFS decision not to consult NEPA

in the annual dumping of millions of gallons of chemical fire retardant on the national forests is unreasonable.’’

Regarding ESA, the Court held that the Forest Service’s reliance on emergency

consultations for long-term retardant dropped in waters inhabited by listed species

did not excuse the lack of formal consultation with the Fish and Wildlife Service

and the National Marine Fisheries Service. The Court ruled that ‘‘The use of longterm fire retardant is not unexpected but guaranteed; the only question is when and

where it will be used. There is no reason why the USFS cannot conduct formal consultation with FWS and no reason to find that the ESA requires anything else.’’

In its order, the court stated that while Plaintiffs had requested ‘‘additional injunctive relief’’, they had not specifically requested that the court enjoin the Forest

Service from using the fire retardants, and so no injunction was issued. The court

ordered the Forest Service to comply with NEPA and to begin formal consultation

with the Fish and Wildlife Service under ESA.

The court left to the Forest Service’s discretion whether to conduct an environmental assessment (EA) or a more comprehensive environmental impact statement

(EIS) to comply with NEPA. Preliminary estimates by agency staff indicate that a

programmatic EIS, should we decide to go that route, might take up to 2 years to

complete.

Even prior to this case, the Forest Service worked with FWS and NMFS for some

time on the subject of how we might conduct ESA section 7 consultations for firefighting activities, and did not reach a conclusion. Therefore we are not able to estimate what amount of additional activity, or what additional cost, would be required

by the court’s order. At this point, we have not verified that FWS and NMFS will

accept a programmatic consultation of this nature. If they would not, then we face

the prospect of additional difficulty in complying with this order.

We note that, while the court in this case did not enjoin the use of the retardant

while the required NEPA and ESA activities are conducted, there is still the possibility of an injunction in the future. The judge did make a decision on the merits

of the NEPA and ESA claims, so it is possible that another plaintiff, in this or another venue, could cite this finding and seek an injunction, which a court could

grant. So we will be in a state of uncertainty as to the availability of this firefighting tool even as we begin compliance with this order.

This concludes my statement, I would be happy to answer any questions that you

may have.

STATEMENT OF BRAD ROBINSON

I am Brad Robinson, president of Gunnison Energy Corporation. Gunnison Energy

has been exploring for natural gas in and around the Grand Mesa, Uncompahgre

and Gunnison National Forests on the Western Slope of Colorado for 4 years. Gunnison Energy has invested ten of millions of dollars in these exploration efforts but

has yet to earn any income from these investments. One of the reasons for this is

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the high cost and time delays associated with exploring for and developing minerals

on Forest Service and BLM lands.

I would like to relate to you today how the recent court ruling relating to Categorical Exclusions (CEs) out of the Ninth Circuit Court and the resulting confusion

with regard to the Forest Service’s ability to issue Categorical Exclusions has impacted our company. Before I start, let me emphasis two things: First, Gunnison Energy strongly supports reasonable protections to the environment. Secondly, Gunnison Energy has an excellent working relationship with the Forest Service and in no

way blames them for these recent problems.

Gunnison Energy and a partner, SG Interests, recently purchased a natural gas

pipeline system and a natural gas field which have been in existence for nearly 20

years. Some of the gas wells are owned by Gunnison Energy and its partner, some

are owned by third parties. Gunnison Energy was in communication with the Forest

Service months prior to this acquisition to determine what permits would be required to operate the pipeline and to do certain minor modifications to the pipeline

system to improve its safety and operational efficiency. The Forest Service advised

us that this work could be approved via a CE since no new roads were being built

nor was any new surface disturbance taking place. And, in fact, the Forest Service

approved our work via a CE once acquisition of the pipeline system was finalized.

However, before our work could be completed, the Forest Service was forced to rescind its approval because of the Ninth Circuit Court ruling. Our partners, SG Interest were also forced to halt work on an extension of the pipeline system to wells

they own which they had hoped to produce over this winter. Other gas well operators have also terminated their work.

The Forest Service has now re-approved some of this work. However, the contractors who were to do this work have moved on to other projects and cannot immediately restart this work. In addition, our pipeline system and gas field is between

8,000 and 10,000 feet of elevation. Therefore, it is nearly assured that this work will

not be done this year and cannot be recommenced until June or July 2006 when

the snow melts.

So, at this point, we have at least three, and perhaps five, companies whose gas

will most certainly be shut in for the winter at a significant cost to these companies.

We have three companies who, in good faith, invested significant sums to get this

gas to market this winter. And, in spite of our and the Forest Service’s efforts, we

are shut in. This not only hurts us, but also hurts gas consumers.

We also have a court ruling that in spite of two clarifications is still not clear.

Item number 10 of the judge’s clarification presumably speaks to the need for notice

and comment for CEs related to clearing vegetation for the purpose of doing seismic

exploration work or the like. However, I can assure you that others will argue that

this provision means that any minerals or energy work requires that CE’s be noticed, commented upon and be subject to appeal. Again, in our case, the delay this

entails can mean an extra six to twelve month delay in our work.

The logic behind Categorical Exclusions was to ‘‘categorically exclude’’ from further analysis under the National Environmental Protection Act those activities

which are so minor or so routine that local Forest Service officials can evaluate and

approve them on a site specific, project by project basis without the delay of months

of comment and appeals. Examples include the transfer of permits related to existing uses of the forest and modification to existing equipment and facilities or other

activities which do not impact the forest land. The court ruling and resulting uncertainty guts the Forest Service’s ability to carry out their most basic work. I strongly

urge you to again provide the local Forest Service the tools and discretion they need

to do their jobs, so that ranchers, grazers and people like me can do our jobs.

Attached to this statement is suggested language which can be added to the Appeals Reform Act to clarify that CE’s are not subject to notice, comment or appeal

provisions. Gunnison Energy urges you to adopt this or similar language to remedy

the burdensome delays which are stopping routine work and stopping the delivery

of much needed natural gas to the market.

Thank you.

STATEMENT OF TIM O’HARA

Good morning, Mr. Chairman. My name is Tim O’Hara, and I am the vice president of Minnesota Forest Industries. My testimony today is also on behalf of the

American Forest and Paper Association (AF&PA), which is the national trade association representing forestland owners, manufacturers of solid wood products, and

producers of pulp and paper products. The U.S. forest products industry had sales

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of over $230 billion in 2004 and employed 1.1 million people. The industry accounts

for about 7 percent of U.S. manufacturing.

We are interested in the issue being explored at this hearing because many forest

products companies and their employees have a direct interest in the management

of the U.S. forest lands, both public and private. Since insect and disease outbreaks

and wildfires do not respect property boundaries, addressing the growing forest

health crisis on our Federal lands is integral to reducing risks to adjacent communities and state and private forestlands. Our industry is very concerned that the

Federal agencies recognize the significant threats that Federal non-action poses to

non-Federal forestlands. In addition, many of these companies are partially or wholly dependent on timber resources of the National Forest System.

THE NEED FOR TIMELY ACTION

The administration announced the Healthy Forests Initiative in 2002 to address

the growing forest health crisis on our Federal forestlands. The Forest Service estimates that over 72 million acres are at high risk of catastrophic wildfires and another 26 million acres are at risk from insect and disease epidemics. Further exacerbating the problem is the fact that, according to the Forest Service, the agency

spends more than 40 percent of its budget and staff time managing paperwork,

rather than managing the forests.

In 2003, the Forest Service developed several new Categorical Exclusions (CEs)

to cover activities that would not have a significant impact on the environment and

therefore would not require an environmental assessment or environmental impact

statement. These new CEs applied to limited acreage projects and were designed to

reduce hazardous fuels, remove trees to prevent the spread of insects and disease,

and restore forests following a wildfire. These activities could be accomplished directly after the local manager’s decision without lengthy delays, just like the numerous categorical exclusions already in place.

In developing these categorical exclusions, the agency conducted an extensive review of hundreds of projects that provided clear justification for the categorical exclusions, and demonstrated that the use of the categorical exclusions will not have

a significant impact on the environment.

The Forest Service desperately needs these tools to simplify the excessively complicated documentation processes currently in place and to move forward with critical on-the-ground activities. There are several examples of forest health problems

from all over the country, which highlight the urgent need for these categorical exclusions:

• An outbreak of Southern Pine Beetle was detected on the Ocala National Forest

in Florida in April of 2001. According to Forest Service documents, 60–70 spots of

beetle attacks were detected, covering approximately 150 acres. Agency analyses

were initiated that determined the appropriate action would be for the Forest Service to cut and remove the infected trees. The agency prepared an environmental assessment, which was followed by months of public comments, appeals, and waiting

periods. Ultimately, the needed harvest and removal of the infected trees did not

begin until nine months after the outbreaks were detected, by which time the outbreak had spread to almost 1,500 acres, ten times the original impact. This delay

cost the Forest Service 2.3 million board feet with a value of $158,000. More importantly, the remaining infested trees posed a significant forest health and fire threat.

• The Daniel Boone National Forest in Kentucky experienced Southern Pine Beetle outbreaks starting in 1999 and continuing through 2001. Two types of treatment

methods—cut and leave and cut and remove—were attempted, but efforts to control

the spread of the beetle were delayed by excessive paperwork and appeals, allowing

the devastation to quickly spread. More than 100,000 acres of pine forest were lost

to beetle damage on the Daniel Boone, an estimated 80 percent of pine acres previously existing. Because these pine forests had provided habitat to the federally endangered red cockaded woodpecker, 15 of these rare birds had to be captured and

relocated to other States where pine habitat was unaffected by the beetle. The forest

is now faced with thousands of dead pine trees across the landscape, creating hazards for recreation and devastation to the landscape.

• In California, forest lands within the Angeles, Cleveland, and San Bernardino

National Forests are suffering from the largest bark beetle infestation in the last

50 years. The effects of overstocking, drought, and lack of active forest management

have severely damaged these forests. As a result, several hundred thousand dead

pine trees are decaying fast and threatening to fall on homes, power lines, and

emergency evacuation routes. These forests contain recreation areas used by millions of people from the nearby metropolitan areas and surround residences with

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millions of dollars of property value. The categorical exclusions introduced in 2003

have helped in expediting removal of the diseased and infected trees.

• In the Rocky Mountain Region, many national forests have utilized categorical

exclusions to handle small mountain pine beetle salvage projects, such as the Custer

Bugs project on the Black Hills National Forest in South Dakota and the Beecher

project on the White River National Forest in Colorado. Both of these national forests have active mountain pine beetle epidemics covering tens of thousands of acres.

The use of categorical exclusions has allowed the Forest Service to move quickly to

salvage trees that have been attacked by mountain pine beetle to prevent the spread

of beetles to additional trees and to salvage the dead trees before they lose their

value for lumber.

CONSEQUENCES OF LITIGATION

In today’s society, litigation seems to be the common reaction whenever someone

or some group is offended or does not get their way. This is not to suggest that legitimate grievances never occur or that the Forest Service always gets it right. However, we can all agree that a Federal judge lacks the training to be a qualified forest

manager and that a courtroom is the wrong place to create forest policy.

I offer the litigation directed at the Texas National Forests to demonstrate why

litigation can hurt the ability of the agency to take care of serious forest health

problems and cost unnecessary time and money. Environmental groups filed a case

in the Texas Federal courts in 1985, originally hoping to stop the Forest Service

from addressing a pine beetle outbreak in designated wilderness areas. After a few

years, the court allowed the agency to cut the infested trees to prevent it from

spreading outside the wilderness, which of course it already had. The lawsuit then

expanded into numerous other issues and lasted for eighteen years. Finally, in 2003,

the court dismissed the case primarily because the courts had rejected every claim

argued by the environmental groups since 1991.

Obviously, not every lawsuit reaches this extreme. However, I put it forth as an

example to illustrate why Congress should make every effort to provide the Forest

Service with as much clarity as possible so that the opportunities for litigation are

minimized.

THE NEED FOR CONGRESS TO ACT

We now face a situation where professional land managers within the Forest

Service are not able to undertake needed activities in a timely fashion. Activities

that have been documented to not significantly impact the environment are nonetheless held up through a burdensome process of public comment and appeal.

AF&PA and its member companies support the concepts of comment and appeal,

but do not believe that these processes are appropriate to actions that have been

determined to have no significant environmental impacts and where the need for

action is critical.

In a recent decision, U.S. District Court Judge Singleton (Earth Island Institute

vs. Pengilly, now Ruthenbeck) determined that categorical exclusions were subject

to the 1992 Appeals Reform Act and therefore the Forest Service must allow for

public comment and appeals on covered activities. But in a later clarification, he

then drew a baseless distinction between ‘‘minor’’ and ‘‘major’’ categorical exclusions

and included the forest health activities in the ‘‘major’’ category subject to notice,

comment and appeal. There is no legal basis for this distinction, since the rules of

the Council on Environmental Quality define categorical exclusion as any activity

with no significant environmental impacts. Whatever the merits of Judge

Singleton’s underlying decision, it has caused and will continue to cause significant

delays for critical forest health projects. Hundreds of projects have been suspended

all across the country until the public comment and appeals process can occur. It

is worth noting that any party who is truly affected by one of these projects may

always file a lawsuit, an action which is obviously available to many given the number of cases where the Forest Service is a defendant.

The extra time needed for notice, comment, and appeal procedures is potentially

in excess of 135 days and can often delay seasonal projects even longer. The Forest

Service anticipates that approximately 148,000 acres of hazardous fuels treatments

to reduce the risk of catastrophic wildfire will not be completed in FY 2006 as was

originally planned. Over 82,000 of the 148,000 acres are located in the wildlandurban interface. In some locations, there are only certain times of year where conditions exist to accomplish prescribed burning safely and without undesirable resource

damage; delays caused by this ruling may result in these activities being postponed

into FY 2007.

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One current example of the problems associated with delays comes from the Hash

Rock fire on the Ochocco National Forest in eastern Oregon. This fire occurred five

years ago and burned most of a wilderness area. The Forest Service proposed salvaging outside the wilderness on the fringes. The project was appealed and no sale

went forward. The pine beetle then moved from the burned area into adjacent large,

old growth ponderosa pines, which the forest plan was trying to preserve as old

growth. This fall, the Forest Service proposed a project to contain the beetle infestation and a CE was going to be used, but now cannot because of Judge Singleton’s

ruling. So, because of continued appeals and litigation, an insect infestation has

spread and will continue to spread from a large burned area and has attacked

healthy, large, old-growth pines which were designed for protection.

The impacts of Judge Singleton’s ruling are also being felt in Minnesota’s Superior National Forest, where Community Wildfire Protection Plans were recently

completed for Cook and Lake Counties. These plans were developed from a community-based collaborative process, through which desired outcomes were identified.

The planned activities would incorporate the use of CEs to promptly address the

dangerous hazardous fuels situation. Without the use of CEs as intended, the ability

of the Forest Service to implement their portion of the projects will be significantly

delayed and the entire effort will be compromised for those communities.

Another recent decision that has been in the news is Judge Molloy’s ruling in the

Montana Federal court that the Forest Service failed to properly analyze its use of

chemical fire retardant to control wildfire from the air. While the judge has not

stopped use of this critical tool in the fight against wildfire as the agency prepares

the necessary analyses, this presents yet another example of the myriad ways the

Forest Service becomes entangled in process while trying to address and manage the

very real and very dangerous conditions on the national forests.

These decisions and others suggest that we cannot and should not let these issues

get decided piecemeal through our judicial system. Action is needed by Congress

now to assist the Forest Service in moving forward expeditiously on appropriate activities.

Congress has provided the Forest Service with a wide range of tools to address

the forest health crisis facing our national forests. Recent and pending legislation,

including the Healthy Forests Restoration Act of 2003 and the recently introduced

Forest Emergency Recovery and Research Act, specify the appropriate processes and

timeframes for various activities. These laws allow the Forest Service’s professional

forestland managers to move forward with certainty on activities that will help restore the health of our national forests. Similar action is now needed from Congress

to allow categorically excluded projects to move forward in a timely manner.

AF&PA looks forward to working with this Committee and others to help develop

solutions to address the burdensome process requirements that delay needed action

on our national forests. Thank you for the opportunity to testify, Mr. Chairman. I

would be happy to answer questions from the Committee.

STATEMENT OF JOHN B. HOFMANN

Thank you, Mr. Chairman and members of the committee for the invitation to address the impacts of the application of the Appeals Reform Act on projects agreed

to within Community Wildfire Protection Plans (Plans). At this time, we are aware

of fifty-seven Community Wildfire Protection Plans in various stages of development

within 29 California counties, 15 of which include all or most of the at-risk communities in that county. Through the efforts of California’s Fire Safe Councils, which

predate the Healthy Forest Restoration Act, many of these Plans have been in development for over 2 years.

A Community Wildfire Protection Plan must meet four basic requirements: (1) it

must identify and prioritize areas for hazardous fuel reduction treatments with recommendations for the type and method of treatment; (2) it must recommend measures that reduce structural ignitability; (3) it must accomplish those criteria within

the context of collaborative agreements; and, (4) it must be agreed to by the local

government, local fire department, and the state forest management agency in consultation with Federal agencies and interested parties. We appreciate the wisdom

of Congress in including the combination of these elements, for they are the cornerstones to successful implementation of Community Wildfire Protection Plans.

The areas and treatments recommended by the Plans are developed collaboratively according to the Implementation Plan for the Comprehensive Strategy for

a Collaborative Approach for Reducing Wildland Fire Risks to Communities and the

Environment. Under the three-tiered structure, all interested parties have the opportunity to participate. This collaborative process invites debate, science, emotion,

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and eventually compromise, balance, and acceptance. The debate continues until the

community participants satisfy locally elected government leaders that the Plan is

socially acceptable, and the local and state fire experts that the plan will protect

the at-risk communities.

In addition to expedited NEPA procedures, the Healthy Forest Restoration Act retained the authorized use of categorical exclusions. Categorical exclusions provide

a standard and an incentive for communities to collaboratively simplify treatment

recommendations and minimize environmental impacts. Categorical exclusions are

created after evaluating hundreds of similar completed projects and finding none of

the projects, individually or cumulatively, have had a significant effect on the environment. By reducing the time and cost associated with a more formal environmental analysis, categorical exclusions provide communities an incentive to meet

standards known to not have a significant effect on the environment and be noncontroversial.

Application of the Appeals Reform Act to categorical exclusions impacts the implementation of a Community Wildfire Protection Plan in a number of ways:

• The scoping required under the Appeals Reform Act will duplicate hazardous

fuels reduction requirements.

The categorical exclusion most likely to be used to implement a Community Wildfire Protection Plan is the hazardous fuels reduction category exclusion. The rule

specifies that the fuels reduction activity ′′shall be identified through a collaborative

framework as described in A Collaborative Approach for Reducing Wildland Fire

Risks to Communities and the Environment 10-Year Comprehensive Strategy Implementation Plan′′. This is the same collaborative framework required by the

Healthy Forest Restoration Act for developing treatments in a Community Wildfire

Protection Plan. The three-tiered collaborative framework invites participation at

the local, state and national level. The June 5, 2003 Federal Register notice for the

hazardous fuel reduction category exclusion adds, ‘‘This collaboration will, where appropriate, seek to address conflicts concerning alternative uses of resources and be

used by the Federal agencies to consider, as appropriate, reasonable alternatives to

recommend courses of action.’’

The process of community collaboration has proven effective under the Secure

Rural Schools and Community Self-determination Act of 2000. Not one project developed by the collaborative Resource Advisory Committees has been appealed. However, if collaborative plans are significantly modified by a second scoping period, the

community collaborative compromise may be breached and the process reverts back

to the non-collaborative process that has spurned appeals and litigation. Following

up a collaborative effort with a scoping outreach and appeals would be duplicative,

time consuming and risky for environmentally insignificant treatments.

• Scoping and appeals will jeopardize community collaboration and support.

The Healthy Forest Restoration Act of 2003 requires communities to recommend

treatments in a Community Wildfire Protection Plan by collaboration ′′in order to

encourage meaningful public participation during preparation of authorized hazardous fuel reduction projects′′. Application of the Appeals Reform Act would require

scoping after a community had already collaboratively developed a recommendation,

or in essence, open a second scoping period. A second scoping period would diminish

rather than encourage meaningful public participation in the project development

through a Community Wildfire Protection Plan. A second scoping period provides an

opportunity for those not satisfied with the Community Wildfire Protection Plan

process to modify projects even to the extent that the community might no longer

support the project. The second scoping period has the power to override the required community collaboration. Scoping and appeals for a categorical-exemption

thereby reduces the incentive for a community to collaboratively develop a community wildfire protection plan, only to be subsequently modified and delayed by those

outside the Community Wildfire Protection Plan planning process.

• Scoping and appeals will reduce the incentives for environmentally simplified

treatments

For projects that require an environmental assessment (EA) or an environmental

impact statement (EIS), Federal agencies must evaluate, at a minimum, the community recommended treatments. If, during scoping or agency review, a different alternative is recommended, the agency must still evaluate the community recommendation along with the scoping or agency recommendation. However, Federal agencies

are not obligated to evaluate community recommendations in addition to their own

for projects that meet the categorical exclusion standards. Therefore, communities

that want to ensure its recommendations are evaluated, would be discouraged from

meeting the categorical exclusion standards.

• Scoping and appeals will increase project implementation costs

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Scoping and appeals will needlessly add to the cost of community recommended

fuels treatments that qualify for a categorical exclusion. Communities must stretch

existing funds to implement wildfire protection plans. Last year, California communities requested $33.5 million in grant assistance to implement 366 projects agreed

to in Community Wildfire Protection Plans. The combination of state and Federal

funding totaled only $8.7 million dollars, which funded 127 community projects.

Where Federal funds are used to reduce fuels on private lands, the private projects

must also be NEPA compliant. Conducting a second scoping period with its accompanying analysis will further aggravate the funding scarcity on both Federal and

private lands. • Scoping and appeals will delay community project implementation

Time is of the essence for many communities surrounded by hazardous fuels conditions. For Southern California, the passage of the Healthy Forest Restoration Act

was too late. In California, we were fortunate this past season. Heavy winter rains

fueled fear in many firefighters as wildland fuels grew. While we can breathe a sigh

of relief for a mild fire fighting season, unless the excessive fuels are removed, the

resultant growth in fuels will combine with next year’s growth and the following

year’s growth to exponentially contribute to explosive fire conditions next year, and

the year after, and the year after that. It is not a question of if, but when the

wildfires will ignite. Delays of any extent, extends the time period communities are

vulnerable to wildfire. • Scoping and appeals will jeopardize the Community Wildfire Protection Plan

strategy

A Community Wildfire Protection Plan is a strategy, not a project. The effectiveness of the strategy is dependent on the collective integration of all the projects. The

challenge with past fuels reduction plans has been the piece-meal approach with individual projects. Fuels reduction treatments have proven effective when the fire

starts in alignment with the project. Far too often, the fire burned through or

missed the treatment area and burned with catastrophic results for want of a strategically placed sequel. With significant modifications to individual projects, the

strategic plan may no longer be effective in protecting communities.

The hope of Community Wildfire Protection Plans was to bring peace to the forest

wars through collaboratively resolving differences in communities. Adding a second

scoping and appeals requirement to collaboratively developed, environmentally insignificant projects undermines the cornerstones of a Community Wildfire Protection

Plan.

Thank you Mr. Chairman and Members of the Committee. I will be happy to answer any questions you may have.

STATEMENT OF MICHAEL MORTIMER

Mr. Chairman, members of the committee, I am pleased to have the opportunity

to appear before you today to discuss a pressing national forest management issue.

While I am a member of the forestry faculty at Virginia Tech, I wish to make my

comments today on behalf of the Society of American Foresters and its 15,000 forestry professionals.

The National Environmental Policy Act or the NEPA has been in effect for nearly

40 years. Its dual requirements to involve the public and to analyze the potential

environmental impacts of major Federal actions have provided safeguards against

careless development and unforeseen consequences.

In enacting NEPA, Congress provided a useful mechanism for categorically excluding from environmental analysis smaller projects that afford very little risk in

the way of environmental impacts and those projects considered emergency actions.

These actions should be expeditiously implemented and warrant exemption from administrative appeals. SAF supports the recently introduced legislation, HR 4091,

which would respond to a recent court decision hindering timely implementation of

actions that have insignificant environmental impact.

The Forest Service currently has several categorical exclusions as allowed under

the NEPA including those that are components of the Healthy Forests Initiative

(HFI) and the Healthy Forests Restoration Act (HFRA) (P.L. 108–148). These exclusions aide in reducing hazardous fuels, addressing insect and disease outbreaks, and

rehabilitating forests after events. Each of the HFI/HFRA categorical exclusions include specific limitations on the size of the projects, which vary from 70 acres for

limited harvesting to 4,500 acres for prescribed burning; road building; silviculture

applications; and herbicide and pesticide use. These categorical exclusions cannot be

used in wilderness or wilderness study areas. Additionally, each includes provisions

for how the public will be involved in the process. The wildfire risk reduction catVerDate 11-SEP-98 15:44 Jan 04, 2006 Jkt 000000 PO 00000 Frm 00042 Fmt 6633 Sfmt 6633 F:\DOCS\109-20 HAGRI PsN: HAGRI
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1 Heartwood v. U.S. Forest Service, 73 F. Supp. 2d 962 (S.D. Ill 1999) aff’d 230 F.3d 947 (7th

Cir.(Ill.)2000).

2 Earth Island Institute v. Pengilly, Case No. CIV F–03–6386 JKS (E.D. CA 2005). has unfortunately clouded the relationship between categorical exclusions and the appeals process. While

the court clearly recognized that the Appeals Reform Act certainly permits exclusion of environmentally insignificant projects from the appeals process, the court does not seem to understand

that what it is describing are in fact categorically excluded projects.

3 Scardina, A. 2003, Public involvement in USDA Forest Service project-level decision making:

A qualitative analysis of public comments, administrative appeals, and legal arguments from

case studies on the George Washington & Jefferson National Forests. Master of Science Thesis,

Virginia Polytechnic Institute and State University. Blacksburg, VA. has shown that the appeals

process inevitably slows down implementation of categorically excluded projects—in the cases

we examined, the public comment and appeal processes added an average of 4 months, essentially doubling the implementation time for what should have been quickly completed, low impact projects:

egorical exclusion in particular mandates that projects be developed through the collaborative process of the 10 Year Comprehensive Strategy for Implementing the National Fire Plan.

Because of the insignificant environmental impacts of these projects and the public involvement afforded through regulatory mandates in the exclusions, the forest

planning process, project scoping, and litigation, these projects do not need to be further subjected to the administrative appeals process. It is important to note that

these forest health-related categorical exclusions require full compliance with environmental laws. Additionally, projects implemented using these exclusions must still

be consistent with the forest management plans required under the National Forest

Management Act that are developed with significant public involvement and environmental analysis. Use of categorical exclusions relies upon the science and experiential knowledge of forest managers who have implemented these forest management practices for decades.

An agency is not free to develop categorical exclusions in any manner it sees fit.

Categorical exclusions cannot be applied arbitrarily or haphazardly as the Forest

Service discovered in the 1999 Heartwood decision.1

In contrast, when developing the HFI categorical exclusions, the Forest Service

conducted extensive analysis of these types of projects and came to the conclusion

that these actions result in insignificant environmental effect. In addition, forest

managers need these exclusions to quickly respond to emergencies and reduce the

threats to the Nation’s forests.

SAF strongly believes that by their nature and with the limitations outlined in

the regulations, the forest health projects allowed under the HFI and HFRA categorical exclusions should be excluded from further environmental analysis. These

categorical exclusions can provide the Forest Service with a means to accelerate accomplishment of urgent projects on the ground. However, the agency cannot take

full advantage of the efficiencies offered by these categorical exclusions without relief from the current statutory appeals process.

Judge Singleton’s recent ruling in the Earth Island Institute case 2

The court then compounds this problem by creating an artificial distinction where

none exists. The court held that ‘‘While the Forest Service is clearly not required

to make every minor project it undertakes subject to the appeals process, it is required to delineate between major and minor projects’’ The court’s apparent logic

being that minor projects do not require an appeals process, whereas major projects

do.

There is no such distinction between major and minor in the Council on Environmental Quality’s definition of categorical exclusion. The critical question in NEPA

is instead whether actions will significantly impact the human environment. The

size or scope of the project is irrelevant, only the environmental impacts are of concern. What Judge Singleton has done is create a new test to determine whether a

categorical exclusion is appealable based on whether it is a major or minor action.

Since this major vs. minor distinction is not currently defined, only another judge,

on a case by case basis, can decide that question conclusively unless Congress acts

to remedy this situation. The Earth Island Institute case has inappropriately blended the NEPA process with the appeals process. The consequence is uncertainty for

the agency and undoubtedly additional lawsuits challenging the use of categorical

exclusions.

Recent research on Virginia’s national forests 3

• One of the projects, designed to address a southern pine bark beetle infestation,

would have harvested only 40 acres, prescriptively burned 70 acres, and constructed

only one-third of a mile of road. Appeals added 7 months to the project, only to have

litigation delay it another 13 months.

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• Two categorically excluded timber salvage sales, totaling a mere 150 acres of

restoration work, were nonetheless appealed, again doubling the amount of time

needed to implement the projects.

• Most discouragingly, a research project designed to test the efficacy of various

gypsy moth pheromone treatments did not in fact qualify for a categorical exclusion.

That project, designed to treat less than 1,000 acres not only failed to qualify for

a categorical exclusion, but was subsequently appealed and litigated. While the Forest Service prevailed, the time elapsed was nearly two years. Two years to implement a small-scale forest health research project is unacceptable.

It is also worthwhile noting that in none of the appealed categorical exclusion

projects we studied did the information raised on appeal lead to the reversal of the

original Forest Service decision. It was in fact troubling that so many concerns were

raised during the post-decisional period that could have been raised prior to the

land manager’s decision had the appellants truly wanted to contribute to improving

the projects and the agency decisions.

In closing, as I was helping to coordinate the State of Montana’s post-fire efforts

on its forest lands in the Bitterroot Valley following the catastrophic fire season in

the year 2000, it was painful to watch the NEPA and appeals processes grind down

the Forest Service’s ability to respond promptly to the crisis on its national forest

lands. Categorical exclusions can restore common sense to how the NEPA is applied.

Mr. Chairman, it is undeniably important that efforts with H.R. 4091, to codify the

exemption of categorical exclusions from the appeals requirements of the Appeals

Reform Act, move forward. The recent decision by Judge Singleton in the California

District court is unfortunate, and demands that Congress clarify how categorical exclusions and the Forest Service appeals process fit together. The Society of American Foresters supports your initiative, and supports efforts to restore the ability of

the Forest Service to act in a timely fashion to address forest health and other land

and resource management needs on the national forests.

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