FOREST SERVICE APPEALS PROCESS 

OVERSIGHT HEARING 

BEFORE THE 

SUBCOlVIMI'l"l'EE OX XATIOXAL PARKS, FORESTS, 

Ac \'D LA.\DS 

OF THE 

COlVIMITTEE ON RESOURCES 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTH CONGRESS 

SECOND SESSION 

ON 

THE EFFECTIVENESS OF THE U.S. FOREST SERVICE'S ADMINISTRATIVE APPEALS PROCEDURES, AND THE COST TO TAXPAYERS 

26-518cc 

JUNE 20, 1990--WASHINGTON, DC 

Serial No. 104-90 

Printed for the use of the Committee on Resources 

U.S. GOVERNMENT PRINTING OFFICE 

WASHINGTON : 1996 

For sale by lhe U.S. Govern men! Priming Office 

Superinlendenl of Documents. Congressional Sales Office, Washington. DC 20402 

ISBN 0·16-053937-4 
COMMITTEE ON RESOURCES 

DON YOUNG, Alaska, Chairman 

W.J. (BILLY) TAUZIN, Louisiana GEORGE MILLER, California 

JAMES V. HANSEN, Utah EDWARD J. MARKEY, Massachusetts 

JIM SAXTON, New Jersey NICK J. RAHALL II, West Virginia 

ELTON GALLEGLY, California BRUCE F. VENTO, Minnesota 

JOHN J. DUNCAN, JR., Tennessee DALE E. KILDEE, Michigan 

JOEL HEFLEY, Colorado PAT WILLIAMS, Montana 

JOHN T. DOOLITTLE, California SAM GEJDENSON, Connecticut 

WAYNE ALLARD, Colorado BILL RICHARDSON, New Mexico 

WAYNE T. GILCHREST, Maryland PETER A. DEFAZIO, Oregon 

KEN CALVERT, California ENI F.H. FALEOMAVAEGA, American 

RICHARD W. POMBO, California Samoa 

PETER G. TORKILDSEN, Massachusetts TIM JOHNSON, South Dakota 

J.D. HAYWORTH, Arizona NEIL ABERCROMBIE, Hawaii 

FRANK A. CREMEANS, Ohio GERRY E. STUDDS, Massachusetts 

BARBARA CUBIN, Wyoming SOLOMON P. ORTIZ, Texas 

WES COOLEY, Oregon OWEN B. PICKETT, Virginia 

HELEN CHENOWETH, Idaho FRANK PALLONE, JR., New Jersey 

LINDA SMITH, Washington CALVIN M. DOOLEY, California 

GEORGE P. RADANOVICH, California CARLOS A. ROMERO-BARCELO, Puerto 

WALTER B. JONES, JR., North Carolina Rico 

WILLIAM M. (MAC) THORNBERRY, Texas MAURICE D. HINCHEY, New York 

RICHARD (DOC) HASTINGS, Washington ROBERT A. UNDERWOOD, Guam 

JACK METCALF, Washington SAM FARR, California 

JAMES B. LONGLEY, Maine PATRICK J. KENNEDY, Rhode Island 

JOHN B. SHADEGG, Arizona 

JOHN E. ENSIGN, Nevada 

DANIEL VAL KISH, Chief of Staff 

ELIZABETH MEGGINSON, Chief Counsel 

CHRISTINE A. KENNEDY, Chief Clerk/Administrator 

JOHN LAWRE)ICE, Democratic Staff Director 

SUBCOMMITTEE ON NATIONAL PARKS, FORESTS AND LANDS 

JAMES V. HANSEN, Utah, Chairman 

JOHN J. DUNCAN, JR., Tennessee 

JOEL HEFLEY, Colorado 

JOHN T. DOOLITTLE, California 

WAYNE ALLARD, Colorado 

RICHARD W. POMBO, California 

PETER G. TORKILDSEN, Massachusetts 

J.D. HAYWORTH, Arizona 

BARBARA CUBIN, Wyoming 

WES COOLEY, Oregon 

HELEN CHENOWETH, Idaho 

LINDA SMITH, Washington 

GEORGE P. RADANOVICH, California 

JOHN B. SHADEGG, Arizona 

JOHN E. ENSIGN, Nevada 

BILL RICHARDSON, New Mexico 

NICK J. RAHALL II, West Virginia 

BRUCE F. VENTO, Minnesota 

DALE E. KILDEE, Michigan 

PAT WILLIAMS, Montana 

EN! F.H. FALEOMAVAEGA, American 

Samoa 

GERRY E. STUDDS, Massachusetts 

FRANK PALLONE, JR., TrNEW JERSEY 

CARLOS A. ROMERO-BARCELO, Puerto 

Rico 

MAURICE D. HINCHEY, New York 

ROBERT A. UNDERWOOD, Guam 

PATRICK J. KENNEDY, Rhode Island 

ALLEN FREEMYER, Staff Director I Counsel 

ANNE HEISSENBt.:TIEL, Legislative Staff 

RICK HEALY, Democratic Legislative Staff 

(II) 
CONTENTS 

Hearing held June 20, 1996 .................................................................................. . 

Statements of MembE:rs: 

Chenoweth, Hon. Helen, a U.S. Representative from Idaho ......... . 

Hansen, Hon. James V. , a U.S. Representative from Utah, and Chairman, 

Subcommittee on National Parks, Forests and Lands .............................. . Herger, Hon. Wally, a U.S. Representative from California ........... ............. . Taylor, Hon. Charles, a U.S. Representative from North Carolina ............ . 

Statements of witnesses: 

Bailey, Nadine , Executive Assistant, Timber Producers Association of 

Michigan and Wisconsin ............................................... ......... ...................... . 

Prepared statement ......... .... ................................................. .. ....... ........... . 

Bennett, Matt, Vice President of Sales, Emmet Vaughn Lumber Company ............................. ........ ...................................................... .......... ..... ..... . Prepared statement .................................................... .......... .. .. ................ . 

Henson, Steve, Executive Director, Southern Appalachian Multiple-Use 

M~c~~~c~~~i~Fafe~ ct:1lr~~r; J c~tti~~~~;~·x~~~~i~t:i~~ ··( j;·~~P~~·~d· ··~t~t~: ment) ....................... .... .. .................................................................. ... .. .. ....... . 

Matson , Jim, Vermillion Services .... .................................... .. ....... ............ ... .. . Prepared statement ......... ............................................. .................. .......... . 

Phelps, Jack, Executive Director, Alaska Forest Association ............... ..... .. . Prepared statement ................... .. ..................... ...... .............. ... ...... .. .. ...... . . Ruffed Grouse Society (prepared statement) ................................................. . 

Unger, David G., Associate Chief of the Forest Service, U.S. Department 

of Agricuulture ............................................................................................ . Prepared statement .......................................... ....... ... ... .................. ....... . Williams, Noel, Lincoln County Commissioner ...... ... ...................... ... ... ...... .. 

Prepared statement ........ .... ...................................................... ... ............. . 

Additional material supplied: 

Ag. Dept.: To purchasers of National Forest Timber Sales .............. ...... ..... . 

Forest Trust ~uarterly Report (excerpt) ........................................... .... ........ . Grassroots Network News (excerpt) ............................................ ................... . 

Sierra Club litigation filed in Georgia alleging violations of Clean Water, 

Migratory Bird Treaty Act and National Forest Management Act ... ...... . 

Communications submitted: 

Dessecker, Dan (Ruffed Grouse Soc.): Letter of August 15, 1996, to Hon. 

James Hansen ....................................... .......... ............................... ..... . Thomas, Jack Ward (Ag. Dept.): Letter of June 18, 1996, to Hon. James 

V. Hansen ................ . ....................................... .. ..... ................. . 

(III) 

Page 

1 

15 

1 

2 

21 

39 

93 

35 

73 

100 

54 

37 

84 

41 

96 

102 

4 

61 

33 

68 

90 

114 

113 

81 

116 

115 

FOREST SERVICE APPEALS PROCESS 

THURSDAY, JUNE 20, 1996 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON NATIONAL PARKS, FORESTS AND LANDS, COMMITTEE ON 

RESOURCES, 

Washington, DC. 

The Subcommittee met, pursuant to call, at 10:02 a.m., in room 

1324, Longworth House Office Building, Hon. James V. Hansen 

(Chairman of the Subcommittee) presiding. 

STATEMENT OF HON. JAMES V. HANSEN, A U.S. REPRESENTATIVE FROM UTAH; AND CHAIRMAN, SUBCOMMITTEE ON NATIONAL PARKS, FORESTS AND LANDS 

Mr. HANSEN. The Subcommittee will come to order. The Subcommittee on National Parks, Forests and Lands convenes today 

for our sixth hearing on oversight on national forest management 

issues. Today, we will review the effectiveness of the U.S. Forest 

Service's administrative appeal procedures. 

There are now three different procedures for appealing agency 

land management decisions, and we would like to determine how 

each of those are working. We are also hoping to learn how much 

each procedure is costing the taxpayers so that we can better compare their effectiveness. 

When Congress got involved in this issue in 1992, we concluded 

that, too often, appeals were filed by appellants who did not inform 

the agency of their legitimate concerns before decisions were made. 

Instead, they waited until after a decision was made before filing 

an appeal. 

At that time, Congress directed the Forest Service to provide an 

early notice and comment period for all project decisions and to 

streamline the procedures for appeal of those decisions. 

After two-and-one-half years under this procedure, Congress 

should assist the agency in reevaluating the effectiveness of the requirements we established. In addition, we need to ask why the 

Forest Service does not streamline its procedures for appealing forest plans. Several plan appeals have been pending for over nine 

years, since 1987, which points to a problem with a process that 

takes too long to resolve fundamental land management decisions. 

I know the Forest Service has made progress in implementing its 

project appeal procedures, but I believe the record shows there is 

still room for procedural improvements. I hope the witnesses, including the Forest Service, will provide their suggestions, as we all 

have a stake in making sure that the appeals process is effective. 

( 1) 
2 

The Subcommittee will receive testimony today from witnesses 

here from Montana, Tennessee, Arizona, Wisconsin, and Alaska, in 

addition to the Forest Service. One witness, Mr. Matson, works in 

Kanab, Utah. Thank you for coming to testify today. We were expecting several witnesses from the minority, and I am disappointed they have chosen not to attend. I thank our witnesses and Members for your participation in the hearing tuday. I will turn to my 

colleague from Colorado for any opening comments that you may 

have. 

Mr. ALLARD. Thank you, Mr. Chairman. I am just interested in 

hearing the testimony and don't have anything for the record. 

Thank you. 

Mr. HANSEN. Thank you. We are always pleased to have with us 

the dynamic heads-up and forward-looking gentleman from California, probably one of the most effective Congressman I have ever 

served with, the Honorable Wallace Herger. Mr. Herger, we will 

turn it over to you for whatever pearls of wisdom you would like 

to give us. 

STATEMENT OF HON. WALLY HERGER, A U.S. 

REPRESENTATIVE FROM CALIFORNIA 

Mr. HERGER. Thank you, Mr. Chairman. I am pleased that I had 

an opportunity to treat you to that diet soda last night, but thank 

you very much. I do thank you for this opportunity to testify before 

the Subcommittee today. Mr. Chairman and members, last October, during a Timber Salvage Task Force oversight hearing in my district of Redding in 

northern California, a forest planner from the Klamath National 

Forest informed the Task Force of a lawsuit filed by nine environmental activist groups and underwritten by the Sierra Club Legal Defense Fund. 

The appeal challenged the newly completed Klamath National 

Forest plan, which was amended to comply with the President's 

Forest Plan, and sought an immediate stay on all timber sales, 

road building, grazing, and mining on the Klamath National Forest 

pending litigation. Simply put, it demanded that all multiple-use 

activities on the forest be shut down completely. 

Ironically, the litigants had played a prominent role in developing the forest plan they were challenging. The revised plan had reduced timber harvests by three-quarters, added over 100 miles of 

wild and scenic river protection, established strict visual quality 

standards, and provided extensive environmental protections. 

It would do so at a terrible economic cost to rural communities 

in my northern California district. Yet, this was not enough for the 

litigants. They did not get everything they wanted at the negotiation table, so they turned to the Courtroom. 

Mr. Chairman, this example strikes at the heart of what is 

wrong with our current system of forest management. Litigation is 

replacing science-based planning as the preeminent forest management tool. The results are proving to be catastrophic, both economically and environmentally. Each year, administrative and judicial appeals cost the Forest 

Service, and ultimately the U.S. taxpayer, hundreds of millions of 

dollars in direct agency costs and foregone revenues. The impact of 
3 

appeals on the Forest Service timber sales program in 1994 illustrates this point. 

In 1994, 1.2 billion board feet of timber-over a quarter of the 

total volume prepared by the agency for sale-was lost or delayed due to appeals in litigation. The direct costs of these appeals to the 

Forest Service was nearly $54 million. 

The more startling figure, however, is the value of foregone timber sale receipts associated with these appeals. According to the 

Forest Service data, the agency lost as much as $185 million in 

foregone timber sales revenue. Combined with direct expenses, these numbers brought the total cost of appeals to the timber program in 1994 to $239 million, nearly a quarter of a billion dollars. 

Mr. Chairman and members, this is a fiscal tragedy. Litigation is also taking a tremendous toll on the environment. 

Presently, management of 24 million acres of forest covering 22 national forests in two regions in the Pacific Northwest and California falls under the jurisdiction of a single Federal District Court 

Judge because of lawsuits brought by the Sierra Club, National Audubon Society, and others. Of this 24 million acres, the Court has 

allowed active management on only 3 million acres or 12 percent of these forests. Tragically, the remaining 88 percent of the forest that has been 

set aside for no management, especially in northern California, has 

been choked by overgrowth, killed by disease and insects, and 

placed in jeopardy of total destruction by catastrophic wildfire. 

Conventional science advocates managing these forests to pre- vent unnatural mortality and reduce fire risk have been stymied by well-funded environmental litigants who openly oppose all logging 

on Federal lands and have been joined with their judicial counterparts. 

Mr. Chairman and members, it is time to take forest manage- ment out of the hands of litigants and put it back into the hands 

of professional managers where it belongs. Today, you will hear a 

number of recommendations as to how this might be done. I urge the Subcommittee to act immediately on these suggestions so that 

we can quickly return to the business of managing our forests in 

an environmentally and fiscally responsible way. Mr. Chairman, I ask unanimous consent to submit for the record 

testimony from the California Cattlemen's Association as an extension of my own remarks. Mr. HANSEN. Without objection. Mr. BERGER. Thank you. [California Cattlemen's Association statement may be found at 

end of hearing.] 

Mr. HANSEN. And thank you for your excellent remarks. Some of 

the things you brought up we find very disturbing. Just the idea 

that a major so-called moderate organization would call for such a 

radical thing as banning the timber. Do you have any questions for 

our colleague, Mr. Allard? Wally, do you want to join us up here? 

We would be happy to have you on this dais if you would like to 

join us. 

Mr. BERGER. I appreciate that, Mr. Chairman. I do have a prior commitment, but I appreciate the opportunity. I may join you a little later. 
4 

Mr. HANSEN. Thanks for your excellent testimony. Mr. HERGER. Thank you. 

Mr. HANSEN. Mr. David Unger, Associate Chief of the Forest 

Service, who is so accustomed to coming in here, we ought to 

charge you office space or vice versa. 

Mr. UNGER. Thank you, Mr. Chairman. I am accompanied today, 

with your permission, by Susan Yont-Shepherd, our Appeals Coordinator in the Washington Office, and Steve Sagovia from our land 

management planning staff so that they might help answer your questions. Mr. HANSEN. We seriously appreciate you being here. And I 

talked to Jim Lyons yesterday, and he said you would be here and 

be the man that we would turn to for all of these difficult questions. How much time do you need? 

Mr. UNGER. Pardon? 

Mr. HANSEN. How much time do you need? 10 minutes? 

Mr. UNGER. That would be fine. 

Mr. HANSEN. OK. We will give you 10. We will turn it to you. 

STATEMENT OF DAVID G. UNGER, ASSOCIATE CHIEF OF THE 

FOREST SERVICE, U.S. DEPARTMENT OF AGRICULTURE 

Mr. UNGER. Let me summarize the main features of our statement, if the complete statement could be included in the record. I 

might just mention that our administrative appeal process dates 

back to the year 1907, before all of the present-day structures of 

public participation and ability of citizens to enter into litigation 

with the government, which did not exist at that time, were put in place. So it was the only way that our citizens affected by our 

actions would have an opportunity to challenge decisions at that 

time. 

But this has grown over the years, and today the appeal process, I think, serves three basic purposes: one, to continue an oppor- tunity for public involvement in our decisions and to challenge those where there is disagreement; secondly, to help resolve some 

of those disagreements and hopefully to avoid some of the litigation which is very difficult and costly, as Mr. Herger has just mentioned; and, thirdly, to provide a system for some quality control 

for our agency to look at our own decisions and make sure that we 

are doing a good job in following law and policy. 

I would like to focus most of my remarks today on the project appeal process that is found in the regulations in Section 215, but 

spend also some time, as you indicated, on our process on forest 

plan appeals and also for permit appeals. Those are found at Section 217 and Section 215 and at 251 in the regulations. 

We will be using '95 data-fiscal year 1995 data. Although we 

have the figures for fiscal year '96, they are somewhat skewed by 

the fact that the Recision Act eliminated administrative appeals for 

salvage projects, and so they are not directly comparable and would 

have to be adjusted. So we will concentrate on the '95 figures. Just a couple of basic ones. About 20 percent of our decisions 

were appealed in 1995. We had about 1,000 actual appeals, and of 

that 1,000, 70 percent were project appeals; not the forest plan appeals, not the permits, but projects. And so the large share is 
5 

project appeals, and that is what I would like to spend most of our 

time presenting. 

Just about a year ago, I testified before the Senate Subcommittee 

on Forests and Public Land Management on our experience after 

one year of the new process that had been established by the Congress for project appeals in Public Law 102-381. 

Our final regulations had become effective a year before that in 

January of '94, and so we had a little more than a year's experience. And I reported to the Senate at that time that we felt that 

the process was working smoothly and with generally good results. 

And today I would say that after another year and a half of experience that we would say, in general, the revised appeals process established by the Congress for project appeals is working well. 

The Congress had established several objectives to be met with 

this new process: one, to get more public involvement upfront in 

our decisionmaking process; secondly, to streamline the process to 

make it work more rapidly and more smoothly once a decision was 

made; to establish shorter timeframes to assure timely decisions; 

and to encourage informal resolution of issues through face-to-face 

meetings during the appeals process. 

We think that it has been largely successful in meeting those objectives. Last year, we had 700 appeals, about 2,350 projects that 

were subject to appeal, and all but 30 of them were disposed of 

during the 45 day time limit. Informal resolution was attempted in 

a number of them and succeeded in 60 cases, about nine percent 

of the total, and then another 62 appeals were withdrawn by the 

appellants. 

Of the remaining appeals for which we issued final decisions, 25 

projects were withdrawn. So we feel that this indicates that there 

was a good deal of disposition before some of these appeals had to 

be decided. 

The public is participating in predecisional deliberations to a 

greater degree, and I think the fact that we disposed of about 95 

percent of the appeals in the statutory period shows the timeliness 

improved markedly. 

I might mention a few facts about timber sales. There were 381 

appeals filed on about 1,900 sales, about 20 percent-the same rate 

as being challenged in other arenas such as recreation and other 

projects. And questions had been asked about litigation. Lawsuits 

have been filed at a rate of about one lawsuit for every 50 appeals 

so we do feel that we are successful in avoiding litigation for the 

large majority of contested project decisions. 

Now, for possible changes to the project level appeals process, 

there has been one rather general criticism and that is that the criterion for establishing the right to appeal is overly broad because 

people aren't required to express any specific concerns during the 

predecisional project development. 

Some people had recommended that we insist on written comments to establish standing, but we found that in actuality only 

two percent of the appellants do not provide written comment so 

that particular approach would probably not improve the process 

significantly. But there are questions that remain about standing. 

We have not proposed at this time to set forth any changes in this 

project appeals process. 
6 

Now, moving on to the forest planning and the permit processes 

under Section 217 and Section 251, the appeals on forest plans 

have created a very, very substantial workload and have resulted 

in a backlog of appeals as these plans were developed and amended 

over the past many years. 

It is not surprising that there has been this kind of response to 

the forest plans because they are complex and broad documents, 

very important to the overall management of the forest and grasslands. And at the end of last year, we had 115 of those appeals still 

pending, some of them that had been pending for some years. 

As of June 10, we had reduced that number of pending appeals 

to 15. Today, I am informed by Mr. Sagovia that it is 12 through 

a very strong effort on the part of our planning staff to bring folks 

in from the field and help us in reducing that backlog. And we expect to see further reductions by year's end. So although that is 

very difficult and complex, we have been able to draw the backlog 

down to a reasonable number. 

The appeals of permits and authorizations under Section 251 are 

different than both the project appeals and forest plan appeals because they relate to our decisions on permits and authorizations, 

and so the appellants to the appeal process are limited to the parties who are directly involved and a ffected by the decision on appeal. Everything that we see indicates that that appeals process is 

working in a reasonably effective a nd expeditious manner. 

But there are some changes that we will be proposing to that 

process. One substantial one is in response to a new law by the 

Congress having to do with mediation of livestock grazing disputes 

on National Forest System lands. And we need to find a way to incorporate that requirement into the process, and we have some 

other proposals for streamlining the process that we want to bring 

forward in a couple of months. 

I would just like to close by saying that in my testimony in the 

Senate last year we felt that the cha nges that the Congress had 

put forth in the project level appeals process were being realized 

at that time. We think that this process is working with good results, and after the 15 months that we have now, we have no reason to change our assessment of that process. Thank you. 

[Statement of Mr. Unger may be found at end of hearing.] 

Mr. HANSEN. Thank you very much, Mr. Unger. The gentleman 

from Colorado. 

Mr. ALLARD. Thank you, Mr. Chairman. I have some questions 

that are rather specific to my State of Colorado, and if you can't 

answer them specifically, well, maybe you can get something in the 

written record back to the committee. But I am interested in your 

perception of the appeal process and what you actually-maybe 

more accurately-a re experiencing is happening in Colorado. 

My perception on the appeals process in Colorado is not so much 

that we are trying to resolve individual problems, but it is individuals or groups who are coming in to try and change mandates or 

Federal law that has come out of the Congress and that somehow 

or other they are going to try to use that appeals process to change 

them. Do you feel that that is happening in the State of Colorado? 

And if it is or if it isn't, is that happening in other States? 
7 

Mr. UNGER. I wouldn't be able to single out impressions of the 

situation in Colorado, Congressman, specifically, but certainly there are appellants who, in dealing with our decisions, approach them not just from the standpoint of a particular concern about 

that particular project, but, obviously, in some cases, they are seeking to make a larger point about a particular part of the law or the 

policy at issue. 

It is hard to separate out motives in this kind of thing. Our feeling is that our only approach that is reasonable and professional is to respond to the facts that are alleged and deal with the issue 

straight on and try to resolve it in terms of that particular project that has been challenged. Mr. ALLARD. Are those types of concerns that get raised in these 

appeal processes creating some divisiveness between certain interest groups in the Forest Service? 

Mr. UNGER. Well, obviously, the whole process of public land 

management today is one where there is a good deal of controversy and debate-sometimes very spirited debate, sometimes rather po- larized positions. So at any point where there is an interaction between the Forest Service and the public that we serve, those kinds 

of issues are going to come forth and be debated. 

Of course, an appeal is a way in which people who have a strong view about something do have an opportunity to come forward as 

they do in the case of litigation. So there are going to be sometimes 

divisive statements made and proposals made. Mr. ALLARD. We just had a major forest fire in Colorado in the 

Pike-San Isabel National Forest and referred to as the Buffalo 

Creek Fire. And there are about 10,000 acres there that were 

caught up in flame . It is my sense that the public would support 

a well planned salvage operation in a situation like that, but I am 

somewhat concerned about maybe a few individuals preventing that from happening. How critical are emergency salvage projects in this particular situation? 

Mr. UNGER. Well, we rely on our regional forester and our forest supervisors and people on the ground to assess situations such as 

the one that you described; determine what kind of rehabilitation 

is necessary. We try to get on with that very, very quickly and then 

determine whether, as in the case you mentioned, salvage is a pos- sibility or a desirable part of the process of recovery. If it is, why, 

a salvage proposal can be developed and sent on its way to action. Mr. ALLARD. Let me ask you this before you move off of that. 

Would a salvage operation be more feasible in an area like Colorado where you have a dry climate and slow growth times, every- thing, or is it more feasible in areas like the Northwest where you have more rain and faster growth of trees? 

Mr. UNGER. Salvage decisions and opportunities will exist 

throughout the country. They are not limited to just your part of 

the country. 

Mr. ALLARD. OK. In this particular situation, we had an area 

with heavy public use that caught fire . There were some cabins 

within that area; a lot of activity. In retrospect, are there things that could have been done to have improved the forest health in 

that area that would have made it less likely for the fire or would 

have made it easier to contain t he growth of that fire? 
8 

Mr. UNGER. I am not familiar with that particular situation, but 

we know that throughout many parts of the country there are situations regarding a fire hazard that have resulted from exclusion of 

fire in the past or where there has been encroachment of development on what we call the urban wildland from the interface where 

there are fire hazards introduced into that environment through 

that kind of development. And we feel that we need to address both 

those kinds of situations-forest health situations, as well as the 

social and economic implications of that kind of development. 

Mr. ALLARD. I would suspect that there will be a report coming 

out as to what is appropriate. I would like to have included as a 

part of the committee record, if you would, an assessment as to 

whether salvage operations would play a role after the fire, and 

what sort of things that we could have done before the fire that 

would have made it easier to control or maybe improved the forest's health. I would appreciate you making that a part of the committee record. 

Mr. UNGER. We will certainly work with the regional forester and 

provide that to you. Mr. ALLARD. Thank you. 

Mr. HANSEN. I thank the gentleman. Mr. Unger, Jack Ward 

Thomas recently went out West I notice, and I understand part of 

the reason for the trip was on salvage sales. Can you tell us anything you found out? 

Mr. UNGER. He hasn't made a specific report to the staff or a 

written report. I know that he was pleased with much of the 

progress that he saw in responding to the requirements of the law 

and the requirements of the Administration in carrying out the 

law, but he has made no specific report. 

Mr. HANSEN. We would appreciate it if you would mention to the 

chief that we would be very appreciative to know what he found 

out regarding that because it has been a very big issue with us and 

this particular committee and the Full Commitbe and the Congress. Over a year ago, the Administration stated with great conviction that Congress receive the Forest Service recommendation to 

Congress for environmental law reform by June of 1995. I know it 

was delivered to the Secretary, but what is holding it up? 

Mr. UNGER. I can only say, Mr. Chairman, that the Secretary is 

continuing to review the draft that we provided to him. 

Mr. HANSEN. So he has had one year and one month to review 

it. Is that right? 

Mr. UNGER. I believe that is correct. 

Mr. HANSEN. Mighty slow. I know that is not your responsibility, 

but we are finding that unbelievable. We have been waiting to see 

what the hangup would be. Now, Mr. Unger, I have a letter or a 

thing by Mr. Hugh Thompson, a man I have great respect foryour forester on the Dixie. And this is two purchasers of national 

forest timber sale. 

Some years ago, Jim Matson and I, we bounced around the Dixie 

for a day in a couple of vans with-he was then, as I recall, with 

Kaibab Industries, and we had the Steve brothers with us who did 

Escalante Sawmills and others. I drove about the Dixie, and from 

that time until this time I have been on it numerous times. 
9 

This letter kind of disturbs me. It is United States Department 

of Agriculture, Forest Service, Dixie National Forest. And Hugh 

points out this. I won't read the whole thing. He says, "Since 1993, 

these forests have lost more than 40 million board feet of sawmill 

capacity due to local mill closures." I am sure he is referring to 

Escalante, the little sawmill there that the Steve boys had. About 

268 people had jobs there, and that is all gone. Not only did they 

sell it, it has been destroyed. It was torn down. 

Kaibab Industries have one in Fredonia and one in Panguitch. 

They closed Fredonia. I don't know how long it is going to be before 

Panguitch closes down, but I have talked to Sheroldson and others. 

And certainly he is soliciting people to come in on the Dixie because they are having a real outbreak of bark beetles in old growth 

areas. And he is concerned that if they don't go in and cut some 

of that out, they are going to lose the whole darn forest according 

to this thing. That seems to me that would be a great concern. It is interesting to note, he even says in this thing-on the back, 

he said, "Anybody within 500 miles." That is a long way to come. 

He says, "Anyone that is in 500 miles please bid on this." And, yet, 

as I hear from some of these folks, they are not inclined to bid on 

it in the Dixie, not that it is not good timber. What is the problem? 

Mr. UNGER. I would have to look into the specifics of that, Mr. 

Chairman. 

Mr. HANSEN. Would you feel that somewhere in there the problem could be that if someone does bid on those deals, that they immediately have a challenge, say, like the Southern Utah Wilderness Association or the Sierra Club or somebody else? Like Mr. 

Herger recently pointed out just before you got on the stand that 

the Sierra Club had stated there should be no timber cutting on 

the national forests in America. In your wildest imagination, do 

you think that could be one of the reasons? 

Mr. UNGER. Well, certainly there may be those challenges. Usually though, that challenge would come before this point when the 

decision was made to have the sale and the appeal opportunity was 

provided and people would come forward if they disagreed with it 

at that time. Once the appeal period is over and we have made the 

decision to go forward and solicit bids, why I would think that 

there may be concerns and complaints indicated. But ordinarily 

that would happen during earlier in the process. 

Mr. HANSEN. Do you think your forest supervisors are getting a 

little gun-shy, that every time that they start to do one of these 

things, they have to cover every little base and make sure that 

they have dotted every i and crossed every t, that they don't have 

some type of legal challenge? 

Mr. UNGER. I think that the climate of public land management 

over the past several years, which has led to many court decisions 

that have laid out the requirements for documentation of effects to 

meet the requirements of the Endangered Species Act and other 

considerations, cause us to be more concerned about making sure 

that we do the most adequate job of analysis and documentation 

as we prepare our documents. Certainly, that would be true. We 

hope that we are not going any farther than is necessary, and we 

spent a lot of time trying to simplify and streamline those processes. 
10 

Mr. HANSEN. Mr. Unger, you know, in the tort reform area, we 

find-and I have worked on that for 30 years. I did the first nofault in America for products liability, and in the last term, I did 

the one on light aircraft on the statute of repose. We have found 

that sitting on the special task force the Speaker has--over these 

years I have found that many cases in times we find totally nonmeritorious claims. 

Orrin Hatch, Chairman of the Judiciary Committee over in the 

Senate side, has worked diligently to stop the number of appeals 

on capital punishment. And if you watched Good Morning America 

this morning, it took 17 years to get this guy that they got yesterday, an admitted murderer, and he had something like 28 appeals. 

Twenty-eight times he got a bite of the apple. That is ridiculous, 

and every time he lost. 

When you look at some of these things in tort liability, you find 

why do we give them that many appeals, and why can they strain 

on the net when we have a confession of some counting going into 

the criminal side? They are going into your side over here. 

Don't you feel that there is too many nonmeritorious claims 

being filed and things that are only there to be nuisance type of 

things and mischief type of legal procedures rather than legitimate 

discussion and legitimate arguments regarding whether or not a 

timber sale should be allowed? 

Mr. UNGER. I don't think that it is appropriate for me to try to 

characterize any appeal by any group or any citizen in advance as 

nonmeritorious or frivolous, but I am happy that we find that in 

the operation of our project appeals system that we are finding that 

we need to reverse only about five percent of the contested decisions that are appealed. So we think that we are doing a good job. 

Mr. HANSEN. Don't you think it could be done better that we 

could somewhat screen out the nonmeritorious situations? 

Mr. UNGER. This has been discussed over and over again, Mr. Chairman, and nobody has yet been able to construct a good definition or good criterion to use in saying that this appeal is not justifi- able and this one is. 

Mr. HANSEN. That is why you are going through the same frustrations a Member of Congress goes through. See, we form things 

by committee, and they say a committee designed a giraffe, you 

know, and nothing came out right. We are finding ourselves in a 

position where we have got-it is like mixing paint. We keep going 

and pretty soon you get mud. You just keep adding colors. 

Well, we almost have to strike out and try something and then 

perfect it and refine it. So we maybe have to give you something 

that immediately you folks will jump on and say, "But it has got 

this mistake and that mistake and the other mistake, and I am 

really worried about that, and so what? We will try and run it." 

And then you guys have to kind of hunker down and say, "We will 

live with it." 

Because what we are getting out of people-! don't know what 

this next panel is going to say, but in the six hearings we have had 

and around the United States and all the people I have talked to 

in my 16 years on this committee, I have come to the conclusion 

that people are very frustrated about this. 
11 

To me, it is just like the same thing on capital punishment, 

where all of these appeals we have, where these nonmeritorious 

claims in medicine that put us in a situation where we pay for defensive medicine on every John Henry around. And Medicare and 

Blue Cross and Aetna and all those providers are going broke and 

want more money. And you ask them why, and the very first answer they give is nonmeritorious claims. 

Mr. UNGER. Well, I know that Congress did struggle with this 

question when they enacted the law under which our project appeals are carried out now, and a very broad definition of a person 

with a right to appeal was adopted. It said that it could be a person 

who was involved in the public comment process through submission of written or oral comments or otherwise notifying the Forest 

Service of their interest in the proposed action, and that they are 

all entitled to file an appeal. There were no more restrictions 

adopted because of this difficulty in making this definition. 

Mr. HANSEN. My time is about up, but I just want to hit you on 

another one, and I apologize for you having to be in the chair. But 

last night we found ourselves in a situation where Mr. Kennedy of 

Massachusetts put on an amendment to the Interior Appropriations bill which would limit the amount of roads that could be built 

by the Forest Service. 

And we got into the age-old ad nauseam discussion whether it is 

below cost timber sales and those of us who argue the other side 

with our facts and figures, providing all the things of who uses the 

roads and it went on and on and on. 

You know, I have a distinct impression-maybe this is unfair, 

but I have a distinct impression that the Clinton Administration is 

trying to stop road building in the American forest. 

Mr. UNGER. I don't see that reflected in the appropriations requests that the President has sent forward to the Congress, which 

have included funding for timber roads and for our recreation roads 

and our other roads. 

Mr. HANSEN. I have no argument with the idea that the request was somewhat reasonable. How come the Forest Service is closing 

so many roads? I was amazed. What was it? 23,000 miles of roads 

have closed? 

Mr. UNGER. We are trying in a judicious way to in some cases 

temporarily, in other cases permanently, close roads where they 

will not be needed for some period of time or will not be needed 

for the original purposes for which they were built, to avoid maintenance costs, to avoid impacts on other resources. But we are trying to do this carefully and with involvement of the public in making those decisions. 

Mr. HANSEN. I think that is a reasonable answer and an answer 

I would expect from a man of your stature, who I consider a very 

reasonable and respectable man. 

On the other side of the coin, one of the biggest problems we 

have as Members of Congress is we go into our local districts-and 

I am in Logan, Utah, for example-the Utah State University in 

the Walnut Room, and half the professors up there say, "When I 

go up toward Bear Lake, why is it the blankety-blank-blank Forest 

Service has closed this particular road that has been open for the 

last-since I was a little boy?" 
12 

And so we asked Mr. Bosworth or somebody what the story is on 

that, and I agree there should be some roads closed. I just distinctively have the impression, and I just don't mean to lay this on you, 

but I distinctly have the impression that the Clinton Administration is moving heaven and earth to close every Forest Service road 

they can. The gentleman from Colorado I yield to you. 

Mr. ALLARD. I thank the Chairman for yielding on his time. I 

wanted to get back before you got on the road issue-you had said 

that there is about five percent of the appeals that were overturned. 

Mr. UNGER. That we overturned. Yes. 

Mr. ALLARD. How many total appeals do you have? 

Mr. UNGER. The total number of appeals in the last fiscal year 

was approximately 1,000. Mr. ALLARD. OK So then there is 50 that get--

Mr. UNGER. We actually reversed the decision on about 25 appeals last year. 

Mr. ALLARD. OK Do you have a figure of the total cost? 

Mr. UNGER. We don't have any total figures of costs because we 

include these kinds of costs with our planning costs. We did estimate last year that a project level appeal could cost in the neighborhood of $15,000 for processing costs. 

Mr. ALLARD. So you have got thousands. You have got 1,000, and 

how much per appeal? 

Mr. UNGER. $15,000. 

Mr. ALLARD. $15,000. 

Mr. UNGER. So that would be $15 million. Mr. ALLARD. We just had a Budget Committee meeting yesterday 

or maybe it was the day before yesterday, and we had gotten a 

GAO report back that the Forest Service's bookkeeping system was 

in such a disarray that they couldn't reach any conclusions about 

what was happening with the budget. 

You know, we talked about costs here. Is there something in the 

plan to try and have more accountability in the budget process? We 

are trying to look at the cost of these kinds of appeals, and the figures just aren't there. And they keep telling us, "Well, we are in 

the process of trying to correct it," but I have a feeling they have 

been saying that for the last 20 years. Mr. UNGER. Well, we absolutely are trying to correct deficiencies 

in our accounting processes and install systems that will enable us 

to do a first-rate job. We have been working on this for the past 

several years, and we think we have made some progress. We have 

not achieved full success yet. 

Mr. ALLARD. I yield back the balance of my time. 

Mr. HANSEN. Thank you. I just have to state that, Mr. Unger, I 

know you people have wrestled with this problem on appeals and 

the steps as I pointed out to you. It is my opinion, we will probably 

come up with a screening board or something. If I were the Forest 

Service, I would come up with something before Congress does as 

we may give you something you don't think you can live with. The 

gentleman from Arizona, Mr. Hayworth. 

Mr. HAYWORTH. I thank the Chairman, and I would just associate myself with almost every word and every interrogative that he 

has offered this morning. Since Utah and Arizona share a common 
13 

border, we share common problems. Mr. Unger, thank you for coming by today. I do have a couple of questions. 

But combining with that, I just simply have to make the statement that I share the Chairman's suspicion. Even with all due respect to Mr. Unger and his observation of the appropriations request, there is an infamous phrase that was coined by the now junior Senator-well, I take that back-I guess he is-yes, he is a junior Senator from New York-Mr. Moynihan, on another problem, a 

two-word phrase of infamy, "Benign neglect." 

It is my humble contention that even when going through the 

motions and appropriations, this Administration at best offers benign neglect to thousands upon thousands of rural Westerners who 

seek to make an honest living in a very perplexing historical situation which has placed untold millions of acres of land under Federal control. So I appreciate again the fact, Mr. Unger, that you are 

here this morning. But I share the Chairman's frustrations. And following on his admonition in terms of a screening board, 

I just simply want to ask, you have been familiar with the appeals 

process. And, again, for the record, I just would simply ask do you 

consistently find the same people appealing every proposal on a 

given forest? 

Mr. UNGER. There are some cases where that does occur. 

Mr. HAYWORTH. And from your knowledge of the State of Arizona, would you say that is a fairly routine occurrence? 

Mr. UNGER. Susan, would you--

Ms. SHEPHERD. Yes. Mr. UNGER. Our staff agrees that that is the case. 

Mr. HAYWORTH. The usual cast of characters, the usual suspects, 

my dear friend Kiernan Beckley of the Southwestern Center for Biological Diversity and others such as Dr. Robin Silver. Now, to your 

knowledge--

Mr. UNGER. Mr. Congressman, I, of course, would not characterize any of the appellants in any way, but I am simply saying that 

there are frequently the same groups or individuals who may appeal individual projects. Mr. HAYWORTH. To your knowledge, do these groups live directly 

in the communities involved? 

Mr. UNGER. We were asked this question in the Senate last yeai· 

when we had just gotten started with the new process as to how 

many people are appealing projects who are from outside the area, 

so to speak, as compared with those who are in the local vicinity. 

Our figures at that time were that less than one percent of all of 

the appeals were filed by people outside, you know, way away. 

Mr. HAYWORTH. Well, I am sure we can redefine it as the State. 

I mean, I am sure if you said, well, the State of Arizona, which, 

of course, is a large place, the sixth largest State in the Union in 

terms of land mass. My district, for example, is the size of the 

Commonwealth of Pennsylvania. And I guess if we wanted to take 

it on a State-by-State basis, that perhaps has an element of veracity. 

But I am just saying I am just curious as to knowing those 

who-the self-appointed new prohibitionists whose goal is to shut 

down any type of economic activity in the national forests-! am 

just wondering how many folks live directly in the affected area 
14 

bordering the national forests in question, live in the towns that 

depend on interaction and economic involvement on the national 

forests for their livelihood, or perhaps are people who live in metropolitan areas who file these appeals on a routine basis. You may 

have no way to quantify that, and I understand that. 

There is something else. I am sure it is not your intention, but 

it would seem to me the format that we have established, despite 

the best intent of individual efforts, good faith efforts of people in 

your charge and people with the U.S. Forest Service, inadvertently 

set up the whole nature of an adversarial relationship. 

Indeed, I believe one unintended consequence of the appeals 

process is to set up almost a cooperative stance with those who 

would obstruct or appeal or stop economic interaction on the national forests, but those who would seek to use the land are viewed 

as adversaries. I am sure that is not the intent of the Forest Service, but do you see a reasonable construct where that often happens? 

Mr. UNGER. I don't believe that we or our employees at all feel 

that we want to have or contribute toward an adversarial relationship; just the contrary. 

Mr. HAYWORTH. Well, I am sure you don't. 

Mr. UNGER. And we had proposed changes in the appeals process 

over the years. In fact, a few years ago, we proposed to substitute 

a much larger degree of upfront public involvement for the appeals 

process. There was a very, very substantial public reaction in the 

negative to that proposal, and the Congress itself decided that it 

wished to install one by statute. 

Mr. HAYWORTH. Well, Mr. Unger, I cannot help but note what 

has transpired in the Sixth Congressional District of Arizona; indeed, throughout the rural West. And even as I heard the Chairman recount some of his experiences in examining some of the situations in his home State, he mentioned at least one company which 

no longer exists. 

And, indeed, in Arizona we have seen basically the complete evisceration of any meaningful and any modest timber harvest. And I 

just lament the fact perhaps we should all just sit here and wring 

our hands and say, "Oh, what a terrible, terrible thing." Mr. Unger, 

I thank you for coming today. Actions speak louder than words. I 

yield back my time. 

Mr. HANSEN. I appreciate the gentleman's comments. If I may 

point out to the gentleman from Arizona that many of our forest 

supervisors when you talk to them on a one to one gets so gun-shy 

on these lawsuits that are coming out on people who are challenged 

by the extreme environmental groups, before they even put out 

that sale, they will call the attorneys for those people to see if they 

can do it because they know it is an automatic hit. 

Now, I have talked to your supervisors all over the West, and 

they say, "This is an automatic. We are going to get it. We are 

going to get clobbered with this thing so why don't we just go down 

and determine what is at issue, as our lawyers say. What is it we 

are going to fight over?'' 

Then at that point they go so it doesn't appear on the face when 

the Forest Service gives their report that there are as many problems as there are because we don't hear about those. These are the 
15 

one to one telephone calls in the office trying to work things out 

so they can get this stuff resolved. 

That is why I think it behooves this committee to come up-and 

I don't mean to belabor it, and I am talking about it too much already, but I do really think it behooves this committee to come up 

with a straightforward, bang, bang, bang, "Here are three steps. 

You take it or you are out the door." 

I don't mind doing tort reform. I have done tort reform all of my 

political career, and I am looking forward to us doing one. And, I 

say this very respectfully to my good friend, Mr. David Unger, if 

the Forest Service doesn't do it, we will. 

Mr. UNGER. Well, let me respond directly, Mr. Chairman, that we 

would be happy to discuss with you and your staff any ideas that 

might help to reduce the number of appeals that would be reaching 

us if that can be done in a reasonable manner. 

There are questions about the written versus oral comments. 

There are questions about whether we could require more specific 

allegations to be filed rather than general ones. There are questions about whether it is appropriate to deal with issues that 

weren't raised earlier in the early stages of the project. 

Mr. HANSEN. I agree with all those statements. 

Mr. UNGER. It is difficult to define those, but we would be happy 

to discuss them with you and see if we could come up with any proposals that make sense. Mr. HANSEN. One place in the world I agree with Ross Perot is 

the devil is in the details, and working those out are difficult. But 

we have those same frustrations. You folks come in and say somebody involved. Who is involved? Somebody goes to a meeting and 

chants in the back and sings. Does that make him involved? We 

want to know who has standing. 

I don't think some guy from Timbuktu has standing just because 

he puts a three-by-five card up. I don't think a lot of these thingsthis involvement thing has bothered me for years. So maybe we 

have got to get down to definitions and go from there, and I apologize to the committee for taking too much time. The gentlelady 

from Idaho. 

Mrs. CHENOWETH. Thank you, Mr. Chairman. I apologize for arriving late. I do have a statement I would like to enter into the 

record. Mr. HANSEN. Without objection. 

[Statement of Mrs. Chenoweth follows:] 

STATEMENT OF HON. H ELEN CHENOWETH, A U.S. REPRESENTATIVE FROM IDAHO 

Mr. Chainnan, I want to thank you for holding this hearing on an issue that desperately needs the attention of Congress. And I want to thank the witnesses who 

have come today to share their experience and insight. 

In the last few years we have undoubtedly seen the complete abuse of the Forest 

Service administrative appeals process. This has resulted in more and more of Forest Service man hours and taxpayer dollars being diverted from the on-the-ground 

management of the resource to mounds of pointless paperwork. These massive 

amounts of frivolous appeals have also had the effect of delaying timber sales sometimes for years. These delays have resulted in a dramatic loss of value especially 

for sales that involve diseased and dying timber. In addition, it has impeded the 

Forest Service's ability to consistently move timber out of the forests, making it next 

to impossible for companies and communities to plan from year to year on what is 

going to come from the Federal forests. These appeals have had the cumulative ef-
16 

feet of not only halting the stable flow of timber out of the forests, but have also 

greatly contributed to the growing forest health problem. Mr. Chairman, one benefit we have seen from the emergency salvage legislation that was passed last year has been the ability for the Forest Service to bypass their 

administrative appeals process to implement emergency salvage sales. Not having 

to spend countless hours on meaningless paperwork, the Forest Supervisors have 

been able to commit their people and resources to preparing sites for salvage sales, while at the same time taking on-site steps to protecting sensitive environmental 

areas. Moreover, communities have been able to count on a dependable flow of timber coming from the Federal forests-giving them much needed relief. We have also 

seen that eliminating these appeals has not resulted in the bypassing of environmental concerns because the Service has been able to directly exercise laws such 

as NEPA, the Multiple-Use Sustained-Yield Act, and other Federal statutes which 

have provisions dealing with environmental protections. In essence, Mr. Chairman, we need to take a long look at the appeals process as 

it stands now. I think that we will find that in recent years that it has had nothing 

to do with the legitimate airing of concerns, but more to do with the blatant abuse 

of process for the sole purpose of creating gridlock, not workable solutions in our 

forests. I strongly believe that we as a Congress can take charge and change the 

process. 

Mrs. CHENOWETH. Mr. Unger, thank you for coming today. I do 

want to say that I have studied and marked up your testimony, 

even though I didn't get to hear you deliver it, and found it interesting. I also find that you are testifying before Mr. Noel Williams, 

Mr. Matt Bennett, Jim Matson, Nadine Bailey, and Jack Phelps. 

And, you know, I know from just serving in the work that I am 

doing now that I often lose touch with the folks unless I directly 

hear from them. I need to hear from them, not just my staff. And 

I would just like to ask as a personal favor, even though I know 

your schedule is very busy too, if you would mind waiting and listening to their testimony. 

Mr. UNGER. I would be happy too. 

Mrs. CHENOWETH. Thank you very much. I appreciate that. Last 

year, in the Idaho Legislature, our State legislature passed some 

legislation that authorized the State Land Board to go ahead and 

work with the Forest Service or work around them to manage some 

of the forests that were in distressed condition. 

And as you are painfully aware, the maturation of rate of the 

trees is far exceeding our ability to harvest them, and you know 

the result. You and I talked about it, and I have pounded on the 

Forest Service about it. But it will be just a short time before that 

concept reaches the Congress. I think that Senator Craig is looking 

at something in the Senate. I will be looking at something in the 

House. 

Would the Forest Service be willing to work with us to make 

sure that you would work with States on critical and distressed 

areas of forests where we need to? I mean, the debate is no longer 

distressed families and distressed communities and a lifestyle and 

a culture that is going out the window but for the health of the forests. Would you be willing to work with us in--

Mr. UNGER. We certainly share your concern with forest health. 

It has been one of the issues that we think has been growing in 

public understanding and support over the past few years. We have 

been trying in our budget requests and in our work to fund additional fuels treatment and other work, use our salvage program 

where it is appropriate to assist with this, and so forth. And we 

will always be happy to respond to requests for cooperation with 

Members of Congress. 
17 

Mrs. CHENOWETH. Some of us out West envision certain forests 

operating under the State Forest Management Practices Act with 

cooperation with the Forest Service regarding data, maybe personnel, and so forth . But we need to be able to get in there very quickly and straighten those areas out, or we won't have the forests in 

20 years. 

I thought that some of our people out in Idaho were overreaching 

when they said, "Helen, we don't have time. We don't have two or 

three years. It is not just the job, it is the health of the forests." 

And, indeed, I took a forest tour, and they are right. They are 

right. 

Would the Forest Service be so visionary as to work with us in 

straightening up some of these areas and hand it over to the 

States-certain areas to our management to bring about a sustained yield process in there? 

Mr. UNGER. We would have to look at whether such a process 

would indeed be legal and appropriate and in accordance with Administration policy. But we are always willing to discuss these 

kinds of issues and to discuss them with you. 

Mrs. CHENOWETH. Mr. Unger, do you agree that if the Congress 

passed a law and the President signed it into law, that would be 

instructive to you? 

Mr. UNGER. Of course. 

Mrs. CHENOWETH. Good. We agree on that one. In northern 

Idaho, the last time you appeared before this committee, I mentioned that I am having the same problem that our Chairman is 

with lots of road closures. People are pretty hot up there. I now 

have a map of the roads that have just arbitrarily been closed, and 

many of them-most of them are 2477 roadways that existed even 

before the turn of the century. 

Would you personally work with me on that issue in trying to resolve that?-because people can't use the forest roads. It is not just for logging, but it is berry picking and recreation and everything. 

Would you be willing to work with me? 

Mr. UNGER. I and my staff would be happy to try to provide 

whatever information and facts we can to assist in understanding 

that issue. Mrs. CHENOWETH. You just stated in one of your answers that 

less than one percent of all appeals are filed by people in the region 

of the activity. That means that 99 percent of the appeals are filed 

by people not directly impacted. 

Mr. UNGER. No. You misunderstood me . The information that we 

had a year ago, and I have no reason to believe it is different now, 

was that only one percent of the appeals were filed by people outside the region. Most were filed by people living closer to the 

project. 

Mrs. CHENOWETH. OK Well, looking at the Forest Service appeals process, it appears to me that some progress really has been 

made, although the number of appeals has quadrupled. 

Mr. UNGER. Well, could I interrupt, Mrs. Chenoweth? We are experiencing a decline in the number of appeals. 

Mrs. CHENOWETH. Oh, are you? 
18 

Mr. UNGER. The number of appeals in 1995 was approximately 

1,000, which was about half the number that had been filed in fiscal year 1994. 

Mrs. CHENOWETH. Thank you. Well, the length of time for appeals has been reduced? 

Mr. UNGER. Yes. 

Mrs. CHENOWETH. I am very pleased about that, and I applaud 

your efforts in that. However, what really concerns me is the 

project and activity appeals process found in 36 CFR 215, which is 

currently implemented. And it appears that anyone can appeal for 

just about any reason . In my mind, that is totally wasteful. I think 

probably you might agree too. 

But right now, any interested person can appeal, and this is 

what really concerns me, the definition of interested person. There 

is no definition. I want to ask you two questions. What is the Forest Service's definition of who is an interested person, and would 

the Forest Service be willing to work with this committee in bringing about a congressional definition of what an interested person 

is? 

Mr. UNGER. As I was saying to the Chairman earlier, we would 

definitely be happy to work with the committee and staff on whether there can be a more adequate definition of that provided. I did 

read from the law itself their defir,ition of persons who are eligible 

to appeal, and it is broad. 

A person who is involved in the public comment process through 

submission of written or oral comments or by otherwise notifying 

the Forest Service of their interest in the proposed action. So that 

is a broad definition. Now, let me ask Ms. Yahn-Shepherd toward 

the section of the regulations where we define that further. It is 

roughly the same. Would you like to read that to--

Mr. HANSEN. While you are looking for it now, would the 

gentlelady yield? 

Mrs. CHENOWETH. Yes, sir. 

Mr. HANSEN. I think the answer you received regarding one percent outside of the area is technically correct. However, a lot of 

these people move into an area from another area, establish themselves, and they are the ones who appeal. 

To give you an example, the Southern Utah Wilderness Alliance 

has been most of the appeals on the Dixie. They don't come from 

Utah. They have established themselves in that area but have recently moved into the area to do it. As I have talked to forest supervisors, that is what they are finding. So, yes, the answer is technically correct, one percent, but, no, they are not natives of the 

area if I may respectfully correct that. Mrs. CHENOWETH. While the research is going on, I do want to 

say that I happen to have taken a great deal of interest in the life 

and times and writings and thoughts of Gifford Pinchot. And even 

from the time he was Governor of Pennsylvania-and, you know, 

it is interesting, but Gifford Pinchot stated that we should never 

let the working forests, the national forests-not the national forests, but the national forests be used for just one use. 

Mr. UNGER. Be used what? 

Mrs. CHENOWETH. Just for a single use because it would amount 

to no use. And, you know, as we look at the vision of Gifford Pin-
19 

chot and Teddy Roosevelt, we have moved far from that, and I just 

hope that we can move ahead into the future and move back to the 

wisdom that they had nearly 100 years ago. 

Mr. UNGER. We certainly support and continue to support the 

concept of multiple use. I found the answer to your question. The 

definition in our appeal regulation that deals with this section of 

the law regarding who may file an appeal says that it may be filed 

by a person or an organization that meets any of these criteria: 

submitted written comment in response to the draft environmental 

impact stc.tement or provided comment or otherwise expressed interest in a particular proposed action by the close of the comment 

period. So it is a broad definition similar to the definition in the 

law. 

Mrs. CHENOWETH. I think there is a lot of work we can do there. 

Mr. HANSEN. Thank you. 

Mrs. CHENOWETH. Thank you, Mr. Chairman, for being so generous with my time. 

Mr. HANSEN. Thank you. Dawn, we are going to go to lights because we have got one of our colleagues here, and when we will finish this panel, we are going to have to go a little faster. So the gentleman from California. 

Mr. POMBO. I have nothing, Mr. Chairman. 

Mr. HANSEN. The gentlelady from Wyoming, Mrs. Cubin. 

Mrs. CUBIN. I have nothing at this time, Mr. Chairman. 

Mr. HANSEN. The gentleman from Oregon. 

Mr. COOLEY. I am sorry, Mr. Unger. I was late getting in here, 

but I got tied up in another meeting. I need to ask you a couple of things. In this appeal process, given the fact that anyone can go 

to court with a complaint, can you tell me why the appeal process 

is actually necessary under your-because the USDA is the only 

agency that has this appeal process, and I don't quite understand 

why? 

Mr. UNGER. Well, there are some other agencies with appeal 

processes, but as I was saying earlier, this actually dates back to 

nearly the beginning of t he century when there were no real opportunities for citizens to litigate the government under the circumstances of the time, and there were no public involvement or 

public participation processes of the kind that have been established in the last 10 or 20 years. 

So it was the only way that a person who is dissatisfied with a 

Forest Service decision could really seek some higher level of review of a decision, and that was the reason that it was established 

in the first place. 

This has continued through the years, and even though these additional opportunities have been provided, why, the appeal process 

has remained and has been considered important by the public and 

the interest groups that represent the various interests across the 

spectrum. 

We did propose, as I mentioned a minute ago, a couple of years 

ago that we abolish the appeals process for project level of decisions 

and replace it with a very much expanded process of upfront involvement to try to get people discussing these issues and engaged upfront. 
20 

There was a very strong negative public reaction in the comments that came in to that proposal. And instead of that proposal going forward, the Congress decided to institutionalize a process of 

its own. 

Mr. CooLEY. Well, in this process right now, and I am not a big fan of litigation, but certainly a big fan of people having an oppor- tunity to challenge an agency on their decision processes, but don't 

we now fund Legal Services in order to handle problems that peo- ple have with the government? Isn't that what Legal Services is 

supposed to do? 

Mr. UNGER. I am not familiar with what you are speaking of, Congressman. 

Mr. COOLEY. Well, we have Legal Services in every area, that we 

fund with literally hundreds of millions of dollars, that handle inquiries by the public concerning the government. It seems to me 

that we have two systems here, but one system is not communicating with the other. Maybe we ought to deal with one or the other. 

But why do we have two systems that handle complaints by the 

public concerning the agencies? That is what I am concerned about. 

Mr. UNGER. Well, I am not familiar with the funding of those 

services, but I will say that one of the purposes that the appeals 

process does fulfill is that it does provide for the resolution of a 

great many complaints at a much lower level in the organization and at lower costs than if those issues went to litigation. There is 

some reason to believe that if we did not have this appeals process, it could indeed increase the possibility of litigation. Mr. COOLEY. Well, right or wrong, let us say that in my State 

and in my district many of the people involved in the appeal process feel that the decisions were already predetermined before they went into the appeal process, and that if they would have had financial funds available or had an outside prosecutor or detective 

such as people have under Legal Services that they might have a 

little bit more input into the process. Mr. UNGER. Having been an appeal-deciding officer in a previous position in the Forest Service for several years, I can only speak to my experience which is that we did not enter the appeal process with a predetermined idea. We looked very hard and very carefully at the arguments for and against the individual allegations. Mr. COOLEY. Do you have statistics showing where people have 

appealed and how many they have won and lost? 

Mr. UNGER. Probably the closest we can come to estimating that 

would be somewhere about five to seven percent of the decisions 

that are appealed are reversed by our appeal-deciding officers or 

remanded for revision. 

Mr. COOLEY. But you don't have any statistics that show exactly 

how many appeals--

Mr. UNGER. Yes. We would--

Mr. COOLEY. [continuing]-there are and how many of them have 

there been--

Mr. UNGER. Yes. We would be able to provide that for the record. 

Mr. COOLEY. OK. I would like to see that-how many appeals have been applied for or have been requested and how many of 

those appeals have been acceptable to the people making the ap- peals. I think it would be very interesting because we in the field, 
21 

of course, hear all of the most extreme cases. And it appears basically that, or at least people feel that, the appeal process really 

doesn't benefit them. 

Mrs. CUBIN. [presiding] Thank you very much, Mr. Unger. I don't 

think that there is anyone else that wanted to ask questions. We 

do thank you for being here and answering our questions and do 

appreciate the progress that has been made in shortening the time 

that the appeals process has taken. 

Mr. UNGER. Thank you. 

Mrs. CUBIN. So hopefully you will continue in that direction. 

Thank you very much. Next, I think we have Representative Charles Taylor of North Carolina to give a statement for us. Welcome, Representative Taylor. 

STATEMENT OF RON. CHARLES TAYLOR, A U.S. 

REPRESENTATIVE FROM NORTH CAROLINA 

Mr. TAYLOR. Madam Chairman, thank you for the privilege of 

being able to come before this committee. There are so many members on the committee that I admire for the work that you do. I 

would like to start by saying as the only registered forester in Congress, I am sometimes amazed at some of the information that is 

put on the floor as being legitimate silviculture. 

One of the first problems I think that we need in working with 

the public is that forestry is a science. People go to our best universities to get forestry degrees and graduate degrees. Just like medicine or law or other professions, it takes a great deal of training. If you were to have a heart attack at the moment and a surgeon 

were called, you would not at all let me perform an operation on 

you, even though I have a doctorate. It is not a medical doctorate. 

It is a J.D., and you would want the best cardiologist possible. 

And yet when we are talking about forest health and the environment and very serious matters of silviculture, anyone that has 

a bumper sticker that says, "Trees have feelings," seems to have the same authority as people who have spent a lifetime of work 

from our best universities and with forest experimentation. And 

that is one of the problems we have in the concept of forestry itself. 

It is a profession that takes a great deal of study and time. 

When we talk about appeals-and we all want the public's involvement in government. We want it at every level. ~ have more 

town meetings in my district probably than most. We speak over 

1,000 times in the district in a two-year period. 

But if you think of building a highway, when you determine, you 

get public input as to whether or not this highway should be built, 

where it should be built, where the money should be spent, where 

the highway is going. You have numerous public hearings all along the way to determine the construction of the highway. 

But once you have made the decision to build the highway, you 

don't have the public out figuring the weights on the bridge. You 

get a professional engineer who comes out and says this is how the 

construction ought to take place of this bridge or this curve or 

these matters. The general public is presumed that it has had its 

opportunity to determine the direction of the policy, and then you hire professionals to carry it out. 
22 

We need to return somewhat to this in the forest management 

itself. We need to determine the policies with a great deal of public 

input, where we are going in this country as far as our forest policy. And once we have made that determination and assigned our 

professionals the direction, then we should give them as much latitude as possible to carry out our direction. 

That doesn't mean that you shouldn't have oversight, such as 

this committee. It doesn't mean that any organization, whether it 

is the U.S. Forest Service or any other group, is going to be perfect. 

There is room for improvement always. But the endless frivolous 

appeals that come in cost the public a great deal of money, hurts 

the program dramatically, and generally is put there for posturing. 

Many of the Washington insider organizations, the so-called environmental organizations, raise close to $600 million scaring people 

mostly with false rhetoric. And they use this money often to posture in the appeals process, and in many cases it works to the 

public's detriment, far more than good. 

For instance, we have today a group, Earth First, that has appealed numer·ous times and in many different ways on national forest matters. Yesterday, they were in my office because they did not 

want to obey the permit process. That is, a large group is coming 

to the district or wants to come to the district, and the Forest Service has a policy of 75 people or more gathering, they have to get 

a permit. 

Now, this is based on the fact that when you put a large group 

in the forest-we had over 12,000 one year in our forest, the Rainbow Coalition-that health questions come up and other questions 

come up. So on the one hand, here is a group that will appeal almost anything with postcards or anyway they can. On the other 

hand, they don't want to obey the forest regulations, and they don't 

want to take part in the regular process. 

The appeals process that we have had in the past allows those 

people who are not involved, have not been involved in the original 

planning, have not been involved in the numerous public hearings 

and informations to be gathered, to come in and appeal when they 

have had absolutely no consciousness of what has been going on 

and many hours that the public has put in many cases working out 

problems with the Forest Service. They can come in and start the 

process all over again from outside. 

Many of the environmental organizations also are not appealing 

in good faith. They are, in fact, wanting no harvest in our national 

forest. They want no cutting at all. And the appeals process is only 

one weapon they use to see that there is no harvest. 

Now, it would be a lot better to have honesty and to go ahead 

and leave the appeals process alone and just come out with a pool 

fight and say, "We are going to debate and determine whether or 

not we will have harvest in our national forests." They have not. 

Then we could address that on a national basis. 

The Sierra Club just voted two to one to have no harvest in our 

national forest. They will continue, I am sure, to appeal. Even 

though their objective is no harvest, they will be appealing a process that the public agrees with. 

Environmental groups that call for little or no harvest in the national forests have not given us an alternative. This table is made 
23 

out of wood. It will be made out of wood, plastic, or metal. If we 

make it out of the renewable resource of wood that we are growing 

far more than we are cutting-in fact, we are letting more rot in 

the forest than we are harvesting today-it is a renewable resource 

that can continue to provide this service for generations to come in 

the things we need. We are going to need more tables, more chairs, 

more things of which wood is made. 

Harvesting forest is important, and our national forests were created as a fiber reserve so that the Nation would have a supply of 

fiber in the future. Our national parks were created to protect 

things like Old Faithful and other areas, and we put that under 

Interior. 

We put the national forests under Agriculture because we had 

made such dramatic growth in growing crops such as corn and 

wheat. We knew that that kind of science applied to timber would 

enable us to continue to furnish the Nation with a wood supply 

well into many centuries to come. 

If we stop cutting wood in the forest-and let me tell you in the 

Appalachian Range, I would say over half of the hardwoods making 

this furniture comes from the national forests, and more of it will 

have to come from there in the future-then we will not have this 

furniture. We will have to move to plastic or metals. If we go to plastic, we must import the oil. We fight to get it out 

of the Middle East. We spill it two or three times on the way, and 

the process is more toxic consequently from an environmental 

standpoint. Wood is the way a true environmentalist should be 

going, trying to get a renewable resource that is very low in energy. 

Metal takes eight times the energy to make this table than you do 

with wood. The recycling is much easier here than it is with thin 

metals or thin plastics. So if you were a real environmentalist, you ought to be looking 

toward promoting wood to take the place of finite resources such 

as metal or plastic rather than destroying renewable resources and 

having to rely more on finite processes. The Forest Service appeal process-we found during the salvage 

legislation in that bill that we passed recently and will be challenged again, the salvage process gave us some insight of progress 

that can be made without the numerous appeals and at the same 

time protecting the environment. 

In salvage, the Secretary must certify that the environmental 

laws that we have today are being met, and then if there is an appeal, it goes directly to the District Court, and they have 45 days 

to make that decision. 

And if they decide that the site to be cut is violating an environmental policy, then it will not be cut. If they decide the other way, 

then it will be cut, and you get a speedy cutting which is absolutely 

essential in salvage. Otherwise, you lose the value of the timber. 

But what we have found is there has been no appeal at all in 

the salvage area; not to 318 we are talking about, we are talking 

about salvage where there has been any indication that environmental law is being bypassed, that the Forest Service is abusing 

its ability for rapid appeal. And , in fact, there have been very few 

appeals at all because the Forest Service has used prudent judgment in carrying out salvage legislation. 
24 

So I think that we find that we have an agency we should give 

an authority to move. We should have public input as much as pos- sible in putting together forestry plans. But when we have made 

our decision the direction we are going, we should not have groups for their own self-interest able to micromanage those items, item 

by item, and costs the public the great amount of money that it is 

doing. 

I would recommend, Madam Chairman, possibly four things; that 

we should limit appeals to those who have participated in the decisionmaking process; that we limit appeals to forest-specific issues 

for bid appeals filed to address national issues or which apply more 

to laws such as the NFMA than the forest plans or projects that 

are before us at the specific time; end frivolous appeals and litiga- tion by requiring the appellants to post bond and have something similar to Rule 11 in the Federal Court where you pay if you lose. 

If you bring a frivolous action and you lose, then you are respon- sible for paying the cost; and require the Forest Service to make 

a full and detailed cost accounting of the taxpayers' dollars spent 

on appeals and litigation and disclose this information to Congress and the public on an annual basis. If the people see what these 

frivolous appeals are costing us in tax dollars, then I think the 

public will become as outraged as many of us who are familiar with 

this process. Thank you for the opportunity to be with you. Mrs. CUBIN. Thank you very much, and please pardon all the 

shuffling of chairs up here. Do you have time just for a question 

or two? 

Mr. TAYLOR. Sure. 

Mrs. CUBIN. This really isn't related to the appeals process, but 

I am from a State, as you know, where timbering is a very impor- tant industry. And in our State, I was told they are going to be 

doing some controlled burning. And I don't know any-it is like you said, forestry is a science 

in itself, and we all have ideas about how the forest should look 

and how it should be maintained. But I don't know about that. Tell 

me, what are the advantages of a controlled burn over harvesting 

or a clear-cut or anything? Why would that be a good manage- ment--

Mr. TAYLOR. Burning may be used for a variety of purposes, and 

I will speculate as to why they are doing it now in the West. For 

the 10,000 years before Europeans settled this continent, Indians 

managed the forest, and they did it with burning. They did it with a variety of techniques that they saw was beneficial to both provide any fiber that they needed, and theirs was 

minimal, but also to promote game and other living resources they needed from the forest. To say that there was no management of 

the forest has overlooked what the Native Americans did in this 

country for 10,000 years. Burning was one of the processes used. 

What has created the gigantic fires of recent years, and we have 

lost-we send firefighters from the East to the Western States, and 

I, frankly, have lost in my home district one fighter the year before 

last, and, of course, we lost close to 50, I think, in total lives fight- ing the fires. 

As the fuel builds up, as there is no salvage in a forest of timber 

that dies-windblown, diseased, whatever-it breaks down and 
25 

new growth comes up-the fuel base continues to build. At some 

point, it gets to a level that when you get a fire going, there is so 

much fuel that the temperatures reach a level where you totally 

wipe out all life in the soil. 

You create a situation where there is such an inferno that there 

is no possibility of anything living in that kind of fire. It destroys 

all natural growth, and the fires become so gigantic that they go 

over firefighters, and we lose lives. It is a very difficult fire to fight. 

The object then is to remove that fuel base. Now, that was one 

of the purposes of the salvage legislation-was to go in and try to 

collect a lot of the salvage timber, bringing it out at a profit to the 

taxpayer before it created that fire problem. Another way would be 

as it is building up to have a low burn that would keep the base 

clear before it builds to such a level that you could not have a burn 

without destroying the whole forest. There are other silviculture reasons for burning. Sometimes you 

are destroying competitive vegetation. Sometimes if you are getting 

ready to plant, it is a way to prepare the ground before you plant. 

But I would suspect what the reason that the controlled burning 

is going on now is for fire protection. 

Mrs. CUBIN. I am familiar with the huge infernos that you are 

talking about, having lived through the Yellowstone Fires, and that 

was certainly a tragedy in my mind . But the reason I asked the 

question in the first place is because the forest managers have to 

weigh how much can be harvested against the health of the forest. 

And to me it is like grazing. You have to graze the land in order 

to keep the rangeland healthy, and you need to allow timbering in 

the forest in order to keep it at its maximum health. 

ISTEA-in my State, I see private land with forests that are not 

in danger of fire, that are managed well and maintained well. Then 

there is a line and then here is some Forest Service forest where 

it looks like a fire has just, you know-the forest is ripe for a fire. 

And I just wonder if it is a political thing that we can't harvest or a management thing that we can't h arvest. l don't know. 

Mr. TAYLOR. Well, it is a political decision. In 1799, when George 

Washington was dying of pneumonia, we bled him. It did not help 

his pneumonia at all I am sure, but it was the state of our medical 

knowledge. Today, we can transplant hearts and vital body parts 

that it is miraculous we have made that kind of advancement in 

less than 200 years. 

We have made similar advancements in silviculture from the 

days when it was sort of a slash and cut and burn, starting at the 

turn of the century with the creation of the national forests with 

people's understanding of skilled silviculture. The first school of 

forestry is in my district. 

We have learned how to do an amazing amount of things in 

silviculture. We have watched that kind of educational increase. 

When the public looks, it is easy to demagogue forest practices. 

Whenever you have a cutting in a forest, it looks bad for the fitst 

couple of years. And so you drive by-even if it is a thinning-it 

doesn't have to be a clear-cutting, it can be a thinning-it doesn't 

look good. And so it is easy for me to say that is evil, that is bad. 

And yet it is absolutely essential for forest health. 
26 

People don't realize, and just as in medicine, many of the reasons 

forest practices are carried out. For instance, clear-cutting, which 

everyone or the environmental organizations use as a tool to beat 

the wh.:.le forestry problem, is a tool that is necessary; for instance, 

if you want to change a species composition, if you want to promote 

a certain type of wildlife. Some wildlife uses highbrows, some uses 

lowbrows. It depends on the species and what you are trying to do. 

Oaks are vital in our area. They are vital because it is a beautiful timber, first of all. It is a wood that people love, and it is in 

high demand. And, secondly, it is important because of the mast, 

m-a-s-t, which is the nuts, the fruit, that so many of our wildlife 

species need to exist. 

Now, if you talk about old growth, that we can't cut any old 

growth, and you talk about your clear-cut, look what is happening 

with oak decline in the Appalachian areas. If you take a Spanish 

oak, for instance, along a ridge here, which is there, it is going to 

grow, its life span is goi ng to be about 80 years. Now, that is not 

very old for old growth. 

If you let that tree die and you have an acorn, you are relying 

on acorn plants that fall from it, you will lose the species altogether 

because red maple and locust will grow so much faster, it will kill 

out the oak species. So over a period of time, you will lose the oak 

in that whole range if you aren't harvesting. 

However, if you go in and harvest, you can get a sprout back 

from the roots while that tree is still alive that will outrace the red 

maple or locust, and you will keep an oak supply. So the proper 

management tool would be to go in and cut it. It might be clearcutting, it might be selective cutting, but to harvest that timber so 

that you are going to have vigorous, young, more disease resistant 

oak seedlings coming along for future generations. 

Now, this doesn't happen in a day or two so it is hard to watch 

if you are just someone walking in the forest on the weekend and 

coming back out. But it is essential for forest health if you maintain that supply. It is going to become more critical because in this 

country before we first came here, there were a very scattered 

number of people. 

We are farming more land. We needed more land for people to 

live. And so the forests that we have, especially our Federal and 

State forests, must be managed. You cannot just let it stay because 

we have so little of it in a sense. There is a third of the United 

States that is public land, but not all of that is forest. 

But we must manage as a growing population comes along and 

both for forest health and to provide this renewable resource that 

fills so many of our needs-from chemical needs, every facet. If you 

stand around your home and touch the things that wood have provided, you would be amazed. And we are going to have to find replacements for that, and most of that will come from finite resources if we totally destroy our ability to use the renewable resource of wood. 

If you talk to any school, our best universities go there, go to experime;ttal stations. The Forest Service has numbers of experimental stations that have been in existence for almost 100 years. 

It is impossible to come away without seei ng the need for management in our forests. 
27 

You can disagree and you can work on fine points as to what 

type of road we might have or where we are going to position it 

or what type of logging we might do. But the overall need for management is there. To come out as the Sierra Club has done against 

all harvest in our national forests is the most unenvironmental 

practice, I think, we could do in the whole country. Mrs. CUBIN. Thank you very much. Did you have anything, Wes? 

Mr. COOLEY. Yes. Mr. Taylor, you and I were, you know, really 

involved in Public Law 104- 19. I look at information provided here. 

I see the appeal process that we go through here. I know in the 

State of Oregon we have got literally hundreds of appeals, and yet 

they are not listed. But that is not the process. The process is a working base and 

your involvement as a silviculturist is a working base. It appears 

that even though we passed a public law and was signed by the 

President, we are not really totally getting any real benefit. There 

is some benefit, but basically they are not going to meet their goals 

because of the way they account. 

As you know, the accounting system in Congress is the old accounting system, not like anything anywhere else, and this appeal 

process that we talk about under Public Law 104-19 is not working. Have you, as a sponsor and the carrier of that bill, had many 

discussions with people in the field about how the law is being implemented as far as the appeal process is concerned? 

Mr. TAYLOR. I have. I know you carried out hearings, and I want 

to commend you for your work because you were a principal author 

of that legislation and in many other areas in silviculture. The law 

is being applied in a sketchy fashion, so to speak, and, of course, 

it has been in existence a little over a year. 

In the Southeast, we are finding it is working reasonably well. 

In the Pisgah, Nantahala, Chattahoochee, those forests are using 

it to clean up salvage problems all the way from disease to wind 

damage and other areas. We have had sales of several million 

board feet in each of those forests that I am familiar with that 

have been put together. 

In some parts of the cou ntry, it is not being used very well. It 

depends a lot, I think, on the Forest Service. The Forest Service 

is downsizing. Many of the people who were involved in silviculture 

have been somewhat dismayed and have chosen to retire. So unless a district has foresters there who are interested in 

managing the forest and harvesting, then you are not going to have 

the drive in that supervisor's area to implement salvage as much 

as you are if you have someone who understands the need for harvest. And that is probably the difference that I see around the nation. 

It depends a lot on tha t national supervisor's staff and composition that he or she has, and that is why I think it has been 

sketchy. I don't think they will meet the goals we set out, but they 

are moving ahead. And the salvage legislation has given some hope 

to those people who practice modern silviculture in the forest that 

we are returning some sanity back to the management of our forests. And we are not moving in the direction as we were that the 

Sierra Club advocates. 
28 

Most of you know that we are down to the point now that we 

only can consider for harvest around 20 to 25 percent of the national forestland. In other words, 75 to 80 percent of the national 

forest has been put off limits now to any harvest consideration. 

That doesn't mean we are going to harvest that 20 percent because 

we have got opposition against doing that. That just means we are 

down to--that is all we are in the position to consider now. 

Mr. COOLEY. Since you have been in Congress quite a few years 

and are very familiar with this area, the statement you made sort 

of begs the next question. Are there no standards by the Forest 

Service as to the personnel that they are required to have in order 

to run a good shop? 

I mean, what I am hearing is that in some districts, depending 

on the forester, he can decide the makeup of the forester's team. 

And so if you are getting rid of our silviculturists and keeping 

other people, therefore, making the inability for them to put out 

sales. Is that what I sort of understood from your statement? 

Mr. TAYLOR. Well, the blame should not be put on a district forester or the forest supervisor or even the regional forester or even 

the chief forester all the time. The blame stops right here around 

this circle. We establish the policy. And for 20 years in this country, we took the general direction of the Sierra Club. We want no 

harvest in our fore sts. 

Now, we would couch it by saying, "Oh, I want to see the forest 

harvested, but I don't want to see it this way," and there was always a but there so when you finished at the end, it is like the old 

fellow that you ask a question, "Where are you going?" and he said, 

"You can't get there from here." 

Well, you couldn't get there from here . You couldn't work out any 

harvest. There were so many roadblocks, and we kept putting them 

in. Vole layered regulations. We layered laws that in many times 

were conflicting. And then we handed all that to a Forest Service 

to try to carry it out. 

At the same time, as the Administrations changed, the Secretary 

of Agriculture and, more importantly, the Assistant Secretary over 

Forest Service Management changed, and they then set the-or put 

pressure down from the chief on for forest policy to go a certain 

way. And it has taken on more of a political correctness than it has 

forest management. We have said to them, "We want to be politically correct." 

We have this enormous amount of campaign money coming in to 

the various environmental organizations in Washington, and they 

are scaring people with a lot of false information. And they are taking positions as the Sierra Club did, which takes in $54 million a 

year itself, thus saying, "We want no harvest in the forests." 

And they are putting pressure on Members. Therefore, the word 

comes down--even if you are a silviculturist, the word comes down 

that with this kind of conflict that we can't move any further ahead 

in modern silviculture practices. So the blame is here more than 

it is in the Forest Service level itself. 

Mr. COOLEY. Thank you, Mr. Taylor. My time is up, Madam 

Chairman. Mrs. CUBIN. Mr. Vento, did you have any--
Mr. VENTO. Madam Chairwoman, I don't want to get into the 

blame game today. I think that a little bit of that goes a long way. 

I would just observe that in the '80's-most of the 80's-the Congress actually mandated cuts over and above what were sustainable in many forests. I mean, the record is pretty clear in terms 

of the sales being made and the cuts occurring. 

It, obviously, resulted in a superimposing on policy in the appeal 

process-those types of decisions, which, obviously, had a backlash 

in terms of what occurred in the appeal process after the stress 

was not ab:e to cope. Obviously, it was when you try to superimpose a policy that is inappropriate, yet it, obviously, ends up 

using or misusing some of the appeal process that was in place. 

There are a lot of problems that occur. I think that, you know, 

blaming one organization or another or what I think the fact is I 

don't think is going to do it. I think we ought to be guided by the 

facts, and hopefully we will get some of that information in the 

panels that we have that are here to talk about that, the professionals in the Forest Service. And Mr. Taylor and I continue our 

debate to agree to disagree on whrt the analysis and what the 

cause of this is. 

I think there are plenty of problems to go around in terms of 

dealing with these issues. I don't think the answer is the salvage 

program. I think, candidly, that many of the probable areas have 

been harvested, and very often the issue of salvage goes to what 

is economically feasible , which is what we were basically arguing 

about last night. If we put enough dollars to anything, you can make it work. The 

question is trying to get it to work on the basis of the dollars that 

are available, not the taxpayer subsidies of the activities. That is 

one of the major concerns. It has nothing to do with, I suppose, the 

environment. If we are concerned about the environment, we know that we 

have got a lot of areas that have not received the type of attention 

they should or received the regular attention they should in terms 

of thinning and reforestation and watershed restoration. All of that 

is going to cost money. We are going to have to invest money in 

many of these fore sts in order to accomplish the goal. 

I think the concern that I have is not so much about the investment of dollars but the fact that we continue to aggravate the problem by subsidizing types of sales that don't really achieve or fit 

within that particular policy. 

Mr. TAYLOR. Madam Chairman, would the gentleman yield? 

Mr. VENTO. That is the reason, obviously, that we had the closed 

votes and we contested issues on the Floor yesterday. I would be 

happy to give my colleague and my friend--

Mr. TAYLOR. Thank you. We disagree over a lot of things that we 

are talking about here, and you mentioned that we had cut over 

the years, and we probably disagree on that. We have cut the harvested forest down now to approximately 20 to 25 percent of national forest is about all that can be considered for harvest. Do you 

think the overcutting is so great across the Nation that we should 

have 75 to 80 percent of our national forests off limits to harvesting? 

26-518 96-2 
30 

Mr. VENTO. I think that, you know, those are decisions with regards to the national forest acreage my colleague knows, but they aren't necessarily-some of the more productive areas and appropriate areas have been-remain to be managed for harvest and for 

other purposes. It fills the multipurpose goal, as you know. 

And, in terms of what is wilderness, what is being studied, what 

is-I don't know how you include-what numbers you include or 

what areas are excluded, but they are, obviously, changing science 

in terms of how we go about harvesting and where we have restrictions and limitations on it. But I can only agree we ought to have 

a program. 

Part of the problem, I think, that you have, and you can see this 

in some of the areas that are marginal simply don't bring about the 

sale prices-bid prices to provide for the costs of construction of 

roads, remediation of watershed and so forth. 

They simply don't-and so to disturb those areas, we actuallywe have done that repeatedly in the past where we are sort of left 

with a hangover from that. And if there is any blame to be made, 

it, obviously, is the fact that we didn't have enough knowledge I 

guess at that time. 

I would suggest-! think there was some information that should 

have been pretty evident, but it is amazing to me how quickly the 

information has evolved as to what we need to do. But we have got 

a big backlog of areas that need to be dealt with. We have got a 

lot of problems. 

And, part of the appeal process, and I think even the Endangered 

Species Act, have been sort of the-we put too much weight on 

those because we haven't dealt with this in a different context. And 

part of that, I think, has to do with legislative objectives except 

that you-well, you say that they are too sensitive to the environment. They are run by various interest groups. 

I look at it from a different standpoint in terms of what was 

mandated and what actually happened. And while there are a lot 

of laws out there and good intentions, very often they weren't followed. And when they were applied, it was actually at a crisis type 

of intervention, and that doesn't work very well for-it doesn't 

work very well for the Forest Service. 

What I think the Forest Service needs and what the industry 

and the people need is some certainty and predictability, or we are 

not going to get that on the basis of the sort of winner-take-all type 

of policies that have been the hallmark of what is going on here. 

My time has expired, but I would be happy to--

Mrs. CUBIN. Would you like to respond? 

Mr. TAYLOR. Well, we could debate. I am here for questions after 

my statement, and the gentleman didn't give me too many. But he 

and I have debated this question for six years or more now. I would 

love to bring him in out of the suburbs into the real world of the 

forests, and I would be glad to host him if he would come. And I 

can do that without ethics violation because one member to the 

other and have you come down to some of the experimental stations and look at silviculture. 

Mr. VENTO. Yes. I appreciate the gentleman's willingness. I have 

gone hand in hand with the Forest Service personnel, and I would 
31 

be happy to accompany the gentleman if my schedule permits. I 

like to go out as often as I can. Mr. TAYLOR. Good. Mr. VENTO. Unfortunately, my constituents look at it as a vacation, not as work. So I have got a lot of places to go, as the gentleman would be I think impressed by the schedule of activities of 

where I have gone and what I have done in terms of not just in 

your area but around the globe. 

Mr. TAYLOR. I would love to have the gentleman as a guest and 

make a bipartisan release that this is a working trip and not a vacation. 

Mr. VENTO. OK We will try and do that sometime. 

Mr. TAYLOR. Thank you, Mr. Chairman. Mr. VENTO. We will try to put something together. 

Mr. HANSEN. [presiding) Let me just say to our friend from North 

Carolina that in my own opinion, Mr. Vento, he did a super job yesterday and did a great job in identifying and pointing out the problems as myself and Mr. Taylor see them, maybe not exactly like 

our friend from Minnesota sees them. I understand there are two 

others that would like to question Mr. Taylor. Mrs. Chenoweth, do 

you have something for our colleague from North Carolina? 

Mrs. CHENOWETH. Mr. Chairman, I have no questions. I just very 

much appreciate the Congressman for being here. He has a great 

understanding of this issue, great experience, and I have learned 

a lot from him. 

Mr. HANSEN. I associate myself with your remarks. I think his 

understanding probably exceeds 99 percent of our colleagues. The 

gentleman from California. 

Mr. POMBO. Thank you, Mr. Chairman. Mr. Taylor, in your opening statement you made a comment about how when we build a 

road or a bridge that you call in the engineers, and they design the 

bridge. And there may be a public debate over whether or not it 

is good public policy to build the bridge, but you don't have lawsuits and uneducated people or untrained people fighting over how 

the bridge should be designed, that that is a matter of science, that 

that is a matter of proper structural engineering. And yet when we get into decisions such as the Forest Service 

and timber sales, it seems to me that many times we abandon 

what science is telling us is proper. And I think that you alluded 

to that in your opening statement. And I would like you to expand 

on that just briefly, if you wouldn't mind. 

Mr. TAYLOR. Well, as the gentleman has paraphrased somewhat 

what I said, when we build a road, we have public hearings, and 

we welcome public input as to whether or not we will build the 

road, whether or not it is cost-effective, the various questions involved. 

Once we have made the decision to build it, then, as you pointed 

out, we don't have members who are not engineers, know nothing 

about engineering standing there with the engineers. He figures 

the weights on the bridge and constructs the bridge to 

micromanaging that bridge construction because we know that we 

have science in this area. We turn that over to trained people. And as we pointed out, forestry, silviculture is a science. It is a 

science that is taught by our best universities- have schools of for-
32 

estry. There are four years in the undergraduate degree, and then 

most foresters have graduate degrees, master's, or Ph.D.'s. There 

are substantial silvicultural research going on. . In my district, the Bent Creek Station- southeastern stationhas been there since the 1920's so we are approaching 80 or more 

years that they have had to see and experiment with forestry prac- tices, working with the extension service, North Carolina State 

University, Clemson, and other universities around the Southeast. 

Anytime that we are doing something, we should use the best 

science and the best knowledge we have. It doesn't mean that we 

won't improve that in years to come, but it is the best we have. 

What the appeals process has done, more than any other area, 

certainly in highways or other areas, it allows someone who will 

admittedly tell you, and if they don't tell you outright after you have talked with them a few minutes, you are certain that they know nothing about the subject at all, to file an appeal, stop a process, to challenge that professional in the middle of his work and 

put an enormous cost on the public with what amounts to frivolous 

appeals. Now, this is not saying the public should not be involved in formation of public policy. When we put together the forest plan, we 

have enormous amount of public involvements, hearings and 

rehearings and chances to come in and comment, and all of the 

things where the public can be involved. 

But if we allow the public after we assign the policy is going to 

be carried out this way to come in and micromanage the profes- sional decisions that have to be made to carry out that policy, it 

is the same thing as saying the public ought to be figuring the engineering weights on the bridge. If we want to change policy, we have the public input at the beginning. When we put together the forest plans, we have the oppor- tunity to do it through our elected representatives, both State and 

Federal, depending on the level of forestry that is involved, and it 

is an ample time to do it. We do not need numerous frivolous ap- peals, and that is why I made the recommendations I made. 

The Federal Court system, having nothing to do with silviculture 

in this area, has come up with rules where they make frivolous ap- peal expensive. It is Rule 11. In the Federal Court system, for instance, it requires you to pay-if you bring a frivolous appeal, then 

Rule 11 may be applied, and you have to pay the cost of both sides 

in that appeal. And that has made a lot of difference in the court 

system about frivolous civil appeals being brought. 

Mr. POMBO. And I think that one thing that Mr. Vento said is 

probably accurate, and that is that you can't force down an agenda that doesn't fit the science because there is a reaction to that. 

And I think that in our forests today, I know especially in the 

West, we are seeing the reaction to an agenda which was forced 

down from Congress that may have locked up an excessive amount 

of public lands to multiuse and disallowed them from being used 

for timber cutting. And with the forest fires that we are seeing in the West right 

now, most foresters in the West will tell you that we have this very 

severe problem, that we do need to take care of that. The science 

that was ignored when these decisions were being made may have 
33 

been a reaction to something that happened in the past, but they 

don't really fit with what is actually happening on the ground. 

Mr. TAYLOR. We encourage town meetings. When I get groups to 

come in, I encourage them to come to one of our-to go to the Forest Service, go to the Bent Creek Experimental Stations, go out and 

learn, and then let us talk about it. But we must understand that 

these organizations that are taking in hundreds of millions of dollars are taking it in by scaring people. You don't get grandma to 

send in $25 unless you tell her the last tree is being felled. 

Now, in fact, that is totally false. It has no bearing. It brings you in the most money, and, therefore, that is feeding a lot of the misinformation that comes into Washington. And it is bad environmental law and bad silviculture, and we will pay for it in future 

generations for mismanaging our resources. 

Mr. POMBO. Thank you very much for coming down. 

Mr. HANSEN. Thank you, our colleague from North Carolina. We 

appreciate your excellent work you have done on this issue and appreciate your testimony today, and thanks so much for appearing 

before the committee. 

Mr. TAYLOR. Thank you, Mr. Chairman. I appreciate it. 

Mr. HANSEN. Our last panel is Mr. Noel Williams, Lincoln County Commissioner; Matt Bennett, Vice President of Sales, Emmet 

Vaughn Lumber Company; Jim Matson, Vermillion Sales; Nadine 

Bailey, Executive Assistant, Timber Producers Association of 

Michigan and Wisconsin; and Jack Phelps, Executive Director, 

Alaska Forest Association . I appreciate your being with us at this 

time. 

You notice in front of you there are three lights. Just like you 

are driving your car, there is a traffic light there. There is a red, 

yellow, and green or the other way around. The way you are going 

to see it is green, yellow, and red. So we try to limit you to five 

minutes. 

I know you have come a long way, and we appreciate you coming 

and sitting through these. And your testimony is very important to 

us, and, believe me, it will be pored over by many of us and the 

staff besides that. 

So we will just start on this side with Mr. Williams and move 

across. When the green light goes on, start; yellow light, wind 

down; red light, we appreciate it if you would stop. Mr. Williams, 

the time is yours, and thank you for being here. 

STATEMENT OF NOEL WILLIAMS, LINCOLN COUNTY 

COMMISSIONER 

Mr. WILLIAMS. My name is Noel Williams, and I certainly would 

like to thank you all for having me here today. I have been for the 

last dozen years the County Commissioner in Lincoln County, Montana. I also sit on the National Association of Counties' Public 

Lands Steering Committee and am past President of the Western 

Interstate Region Association of Counties, which includes the 15 

western-most States. And in that capacity, I have worked very 

closely with many of the county commissioners from the States of 

the Congressmen and women that I see here today. I could probably simply concur with the comments that I have 

heard from the Congressman from California and the Congressman 
34 

from North Carolina and some of you and call it good. But based 

on my discussion with your staff, there seemed to be some specific 

interest in hearing about the results of the current forest salvage 

program relative to the exemption from the administrative appeals 

process under the timber provisions of the 1995 rescissions bill. 

Let me tell you right upfront that the general consensus of the 

local leaders, the Forest Service personnel, and the wood products 

industry participants in western Montana is that the current salvage program has been the most successful, positive change in Forest Service management direction in recent years. 

Now, the circumstances of my county, and certainly not dissimilar to a host of other western rural communities, are that virtually 

every citizen is affected in some way by the management of the 

Federal lands, which, in my case, encompass 80 percent of Lincoln 

County. Because of this dependence, we monitor pretty closely the 

actions and decisions and the results of this management. · Using the Kootenai National Forest as an example, a conservative allowable sale quantity, which could easily provide for a sustained-yield timber program, was determined to be about 240 million board feet annually. Industry and communities were encouraged to make long term planning decisions based on these numbers. 

After such plans were made, however, additional environmental 

consideration, administrative appeals, and litigation quickly eroded 

them. These appeals and litigation oftentimes do seem to be nothing more than delay tactics and efforts to deter any utilization of 

commodity resources. 

For example, the most recent challenges have stated that the 

grizzly bear recovery decisions on salvage sales were arbitrary and 

capricious. However, even the judges that reviewed these claims 

have unanimously rejected them, inferring that it was the claims 

themselves that were arbitrary and capricious-your 

nonmeritorious claims, Mr. Hansen. In 1994, for example, Kootenai National Forest sold 59 million 

board feet. In 1995, they sold 58 million board feet. Compare these 

with '96 under the current exemption process. So far, 96 million 

board feet sold, with the year-end total projected to be 167 million 

board feet, 149 of which will be salvage. The inferences, I think, 

are clear. 

This program is keeping many of my constituents employed. This 

program is giving a measure of security to many of the small operators in our communities who are currently making major investments in low-impact, high-utilization machinery and equipment in 

order to better comply with environmentally sensitive guidelines. 

We must not allow this to be a false security. 

The owner of one of our major wood product conversion plants 

stated unequivocally that without raw materials available as a direct result of this salvage rider, their labor force would have been 

reduced by a minimum of 40 percent from which, of course, would 

have spun off many more job losses in service and support industries. 

He further commented, significantly, I think, for the purposes of 

this hearing, that it has become obvious to him that the program 
35 

has had an extremely positive effect on the morale and productivity and team work of the Forest Service employees on the local level. 

There also appears to be a much greater atmosphere of coopera- tion. Both industry and agency are aware that their actions will be 

closely scrutinized. They have to do a good job because their future 

depends upon it, as does the future of our habitat. 

These observations have been echoed by various district rangers. They have no doubt that current activities would have been held 

up by appeals as a matter of course. Some groups do submit identical appeals on every project. Not having to deal with such tactics 

has allowed the agency at the local level to provide a higher quality 

of work in less time to utilize their professional judgment. 

Relative to the accusation that current law allows lawless log- ging, our observations are contrary. And you can read in my written testimony just what our observations were and how contrary 

they are. 

I would like to conclude quickly that at least in western Montana 

and northern Idaho the program has been a resounding success, as 

witnessed by increased utilization of valuable resources, improved forest health, reduced threat of catastrophic fires, substantial financial return to both local and U.S. Government, substantial increase in raw materials desperately needed by forest-dependent communities, increased deficiency and morale among Forest Service personnel, and all of this without a reduction in sensitivity to 

the environment. 

Our governor of Montana, Marc Racicot, for whom I have a very 

high amount of respect, has concurred with this assessment and 

has suggested that we jointly seek even more opportunities to reverse bureaucratic impulse and simplify, not complicate, the quest for responsible management and programs that can better satisfy national interests and local needs. Thank you. [Statement of Mr. Williams may be found at end of hearing.] 

Mr. HANSEN. Thank you, Mr. Williams. Mr. Bennett. 

STATEMENT OF MATT BENNETT, VICE PRESIDENT OF SALES, 

EMMET VAUGHN LUMBER COMPANY 

Mr. BENNETT. Mr. Chairman and members of the Subcommittee, 

my name is Matt Bennett, and I am testifying today on behalf of 

the Southern Timber Purchasers Council and the Tennessee Forestry Association. I want to thank you for this opportunity to testify regarding the Forest Service administrative appeals process. 

It is the point of my testimony to show that the process, however 

well intended, has become dysfunctional agency policy. This policy results in unnecessary delays and costly expenditures of taxpayer 

dollars that could be more wisely spent on perhaps trail maintenance, wildlife h abitat, or protecting forest health. 

Let me offer an example of how time consuming and expensive 

forest plan appeals have become. In 1979, the Forest Service began efforts to draft a forest plan for the Cherokee National Forest in 

Tennessee. After seven years, the plan was approved. However, 28 

days later, the plan was appealed. 

Appeal issues were national issues or national disputes that extended beyond the scope of the forest planning process. Instead of 

using appeals to address local management disagreements, the 
36 

plan was appealed to advance a national agenda by special interest 

environmental groups. The groups were attempting to bypass the 

legislative process and effect change through the agencies or courtordered action. 

In 1991, the Wilderness Society decided to litigate these issues. 

Happily, the litigation is finally over. On May 22, 1996, 10 years 

after the original appeal, the Court of Appeals affirmed the dismissal of the challenge to the plan. Ironically, work had already begun 

on the next forest plan before this one was approved. 

Did the appeals process adversely affect the operations of the 

Cherokee? I believe so. It may have significantly reduced the volume of timber for sale. In 1989, the Cherokee sold 36.2 million 

board feet. By 1995, the amount had fallen to 12.1 million board 

feet. And in response to Mr. Unger's comments about the decline 

in appeals, I would point out that the number of timber sales to 

appeal has also declined. 

When looking at project level appeals, two things quickly become 

evident. The majority are often brought by one appellant, and they 

mostly pertain to timber sales. In the most flagrant example, 52 of 

57 timber sales have been appealed by one person on the Ouachita 

National Forest in Arkansas. 

Project appeals may be successful delaying tactics, but they rarely contribute little new insight. The overwhelming majority are either dismissed or decided in favor of the original opinion. Environmental groups have now begun litigation against timber sales on 

both the Ozark and the Chattahoochee National Forest. We are 

concerned that the Cherokee will not be far behind. 

If these two forests are any indication, then the litigation will 

claim violations of three laws: the Clean Water Act, the Migratory 

Bird Treaty Act, and the National Forest Management Act. 

If the violation of the META is upheld by the court, this could 

well become the spotted owl issue of the South. Its impact would 

not be confined to public land, as private landowners would also be 

subject to the conditions of the Act. 

We have a saying in Tennessee that if it ain't broke, don't fix it. 

Unfortunately, the appeals process is broke, and it does need fixing. I am unaware of any other government agency that goes 

through so torturous a process to arrive at a decision and spend so 

much money to get there. 

The end result is an uncertain future for forest dependent small 

communities and businesses, and taxpayer dollars wasted on litigation that could be spent to ensure healthy, more productive forests 

for future generations. I believe the process can be fixed. Sensible 

limits need to be placed on who can appeal and what can be appealed. Mechanisms should be in place to discourage frivolous appeals. 

And, finally, forest plans and project level decisions are not the 

appropriate place to pursue the agendas of special interest environmental organizations. Mr. Chairman, that concludes my statement, 

and I would be happy to respond to any questions. 

[Statement of Mr. Bennett may be found at end of hearing.] 

Mr. HANSEN. Thank you. Mr. Matson. 
37 

STATEMENT OF JIM MATSON, VERMILLION SERVICES 

Mr. MATSON. Thank you. Members of the Subcommittee and Mr. 

Chairman, greetings from Utah. Good to be here. I am Jim Matson. 

I am currently a consultant from Kanab, Utah. Prior to that, I was 

with a forest products company headquartered in northern Arizona 

and southern Utah. 

My clients today are the communities of Fredonia, Arizona; 

Kanab, Utah; and Kane County. We are all very dependent upon 

administered public lands, whether it is under the BLM, the Forest 

Service, or the Park Service. I would like to report to you that for 

the most part that the effects to date are mostly benign or beneficial, but that certainly is not the case. 

Leading the list of the adverse impacts on our communities are 

the Department of Agriculture, Forest Service administrative appeals procedures. Appeals have provided the opponents of humanmanaged forests the means to breach a forestry system, which, 

until recently, was of significant value to the American people and 

public forest lands. 

And the people in the communities that I represent have suffered 

greatly because of administrative appeals. Kaibab Forest Products 

Company, formerly the area's largest employer of people and their 

families, was forced out of business by the constant barrage of appeals, and then subsequent lawsuits, and then the acquiescence of 

the Forest Service in the process. 

Administrative appeals continues to be the thin edge of the 

wedge utilized for purposes of paralyzing public forest lands enhancements and investments. Imagine an appeal system of this 

sort being applied to the post office. It would take months to get 

letters instead of days. 

Our democratic system of governance usually reacts slowly to 

correcting excesses that are being enjoyed by a few at the expense 

of the majority. Clearly, the current and existing appeals procedures D.re excessive and have benefited a very vocal and aggressive 

minority in our society. 

The fact is the Forest Service appeals rules are little more than 

a government give-away program. These give-aways allow a very 

small number, who care little for rural human communities, much 

less a forest, a free ticket to dismantle months of work and weeks 

of work and effort. Just grab the appeals rules and let it fly. The 

Forest Service usually caves in, and the plan or projects are delayed, changed, or canceled. Losses accrue to us all by allowing this 

kind of appeals procedure to be continually one sided. 

The magnitude of laws, rules, guidelines, and procedures that 

project designers must navigate to implement a successful forest 

plan or associated project are simply overwhelming. An administrative appeal that stops a program has exploited the soft belly of the 

Forest Service's administrative processes. 

I have noted and been involved with many projects that on one 

hand were procedurally correct, but not a very good project on the 

ground but were allowed to proceed. On the other hand, I have reviewed projects that were well conceived for benefiting forest resources but were procedurally flawed and subsequently dropped. 

The point is procedurally correct or incorrect implementation of 

plans and projects are time consuming and costly. And we are 
38 

bearing these costs directly and indirectly throughout, but the 

heaviest impacts are falling on rural communities. 

As a side-bar, after the administrative appeals continue to close 

the mills in Fredonia, Arizona, and potentially the mill in 

Panguitch, Utah, will be closed, the Dixie National Forest, as you, 

Mr. Chairman, pointed out earlier, has put out a notice indicating 

that they are looking for· purchasers to come to the area from a 

500-mile radius. 

A friend of mine from the Black Hills wrote, and he said, "Oh, 

and if you are looking for a partner to build a mill and take advantage of the wonderful Forest Service opportunity, please don't call 

me." 

Trust in the situation is totally lacking in this process, and you 

can imagine a firm or a company and their bankers trying to figure 

out how to commit $8 to $10 million to be able to take advantage 

of this. 

And I guess the question I would ask you all here in this room 

today, would you invest your savings on a venture such as this 

with the threat or the potential of appeals stopping the supply of 

raw material for such a venture? I don't think so. 

I would also like to point out that the closing of these two mills 

resulted in the local area loosing the only area's capability of handling these kind of volumes. These two mill complexes could have 

handled logs ranging in size from six inches in diameter to 25 

inches in diameter. Eighty-eight percent of that volume could have 

been 16 inches or less, and today the issue in the West is what are 

we going to do with small timber, fire killed, insect killed, and so 

on. 

The preservationists really have used a bait-and-switch tactic 

that has evolved a strategy of goading the Forest Service about the 

low cost timber sales, and then turn right around and start delaying those same programs and increasing those costs. 

Eventually, it became impossible for the Forest Service to meet 

its goals and budget objectives. Before long, the media and others 

were clamoring for answers as to why costs were higher than revenues. The leading reason for the higher cost is administrative appeals and resulting delays. I have thought from time to time and 

mused about this as why would the Administration and the Forest 

Service continue a system that would have those kind of impacts 

on its own self? 

Recommendations: one, I think we should take the free out of the 

appeal system. If the appellant loses, he pays. Two, on emergency 

programs and certified emergency, we should limit the appeal to 15 

working days so that we can get about the business of salvaging 

insect and fire-killed timber. 

Intervention, as you mentioned before, Mr. Chairman, should be 

left on the basis to valid standing positions. And then we need to 

shorten and fast-track the whole program so that we do not exceed 

30 working days, about six weeks in the whole thing, so that we 

can get about our business. 

I have another recommendation, and that would be that under 

the appeals process that from a Federal standpoint that we direct 

the States, where they have State agencies involved in appeals, 
39 

that the governor of that State must approve that appeal before it 

can go on. 

And that the statements of reasons be limited to actual facts, and personal opinions could be submitted as long as they are noted 

as personal opinions. And I think peer-reviewed science would be 

a real factor in helping us get along with this. So that concludes 

my comments, Mr. Chairman. Thank you. 

[Statement of Mr. Matson may be found at end of hearing.] 

Mr. HANSEN. We will give you another minute to wrap up if you 

would like to. Have you concluded your statement? 

Mr. MATSON. That concludes my statement and recommendations. 

Mr. HANSEN. Well, you got right on the minute. Thank you very 

much. I appreciate it. Nadine Bailey. 

STATEMENT OF NADINE BAILEY, EXECUTIVE ASSISTANT, TIMBER PRODUCERS ASSOCIATION OF MICHIGAN AND WISCONSIN 

Ms. BAILEY. Members of the Subcommittee--

Mr. HANSEN. Do you want to pull the mike over there by you if 

you would please? 

Ms. BAILEY. Members of the Subcommittee, thank you for allowing me to testify before you today. My name is Nadine Bailey, and 

I am the Executive Assistant to the Timber Producers Association 

of Michigan and Wisconsin. I have been in this position since October of 1995. This issue is an issue that has affected me on a very 

personal level. Before moving to Wisconsin, my family and I lived 

in the small northern California town of Hayfork. 

In 1990, a Federal judge upheld an appeal brought by the Audubon Society against the U.S. Forest Service. The judge placed an 

injunction against any further timber harvest on national forests 

until a habitat management plan for the northern spotted owl was 

completed. At that time, my husband and I had a small timber falling business that employed approximately 15 people. The Federal Government owns approximately 80 percent of the land in Trinity County. 

Without access to that land, we were unable to continue operating 

our business. 

In 1993, we closed our business, losing everything that had taken 

us a lifetime to build. Our story is not unique. Many forest-dependent communities are experiencing the same hardships-high unemployment and a large number of children living below the poverty 

level. 

With no hope of future employment for my husband, my family 

and I were forced to leave the Trinity County area. This spring, the 

last remaining forest products employer in Hayfork, the Sierra Pacific mill, closed its doors. 

Never once during the appeal process did anyone stop to consider 

the economic impacts of the appeal procedure or attempt to take 

public comment from the people being impacted. Many sales outside of the spotted owl injunction were also changed without public 

comment to address issues that might be included in future litigation. 
40 

Sales that should have been sold were delayed and reviewed to 

ensure that they would not be appealed. This attempt by the Forest 

Service to appeal-proof all of their existing sales caused the cost of 

timber sale preparation to rise and caused the future timber sale 

program to be decreased, creating the massive gridlock that continues today. 

This type of gridlock is not just a western phenomenon. In the 

Lake States region, there are also examples of misuse of the appeal 

process. In 1993, an environmental group in Michigan appealed the 

West Hyde II Vegetation Management Plan. They maintained that 

the Forest Service had done an inadequate job on the environmental impacts of the plan. The plan was upheld by the forest supervisor, and the timber sale was then sold to Nagle Lumber, a 

small family owned company. Hoping to reduce some of the plaintiffs concerns about the plan, 

the Forest Service went back to the purchaser, Nagle Lumber, and 

asked them if they would be willing to delay harvest on the sale 

for one year so that a more in-depth environmental study could be 

completed. 

Nagle Lumber agreed, and the Forest Service completed a full revision of the environmental assessment in addition to a biological 

evaluation on the issues involved in the complaint. Satisfied that 

they had met Federal mandates, the Forest Service made plans to 

continue with the vegetation management plan. 

On May 31, 1996, the pla intiff of the original appeal resubmitted 

the appeal alleging the same charges in the first appeal, an appeal 

already overruled by the forest supervisor's office. 

This is just one example of how the Forest Service, through its 

appeal process, is being forced out of timber sale preparation and 

into litigation defense preparation. This approach to forest management has already proven disastrous to both the Forest Service and 

forest-dependent communities. The present appeal process demeans the land manager and 

forces undue stress onto rural communities that are adjacent to our 

national forests. The present timber sale appeals process also costs 

the American taxpayers money, as the Forest Service is forced to 

reanswer questions that have already been addressed. 

In 1993, I was a speaker on the first round table at the Forest 

Summit convened by President Clinton. At that summit, President 

Clinton likened the Federal regulations that governed forest management to a wagon with a team of horses hooked to both ends. He 

promised that his Administration would be committed to ending 

that gridlock. The fact that I now live in Rhinelander, Wisconsin, 

and not my native California, is proof that he has not been successful. 

I urge this committee to make the following changes to the appeal process: ensure good faith effort to solve problems by requiring 

all potential appellants to be part of the early planning. People 

should not be able to appea l timber sales simply because they do 

not believe in cutting trees. Two, limit timber sale appeals to only areas that were not addressed under the forest planning process. Three, shorten the time 

limit on the appeal process. Four, any emergency decision should 

be exempt from the appeal process. Five, forest plan appeals can 
41 

take years to resolve. The process must be shortened, and a procedure to allow continued operations while the plan is being appealed 

must be implemented . Thank you for your time. 

[The statement of Ms. Bailey may be found at end of hearing.] 

Mr. HANSEN. Thank you. We appreciate your testimony. Mr. 

Phelps. 

STATEMENT OF JACK PHELPS, EXECUTIVE DIRECTOR, 

ALASKA FOREST ASSOCIATION 

Mr. PHELPS. Thank you, Mr. Chairman. My name is Jack Phelps. 

I am the Executive Director of the Alaska Forest Association. Furthermore, I am a member of the Society of American Foresters, as 

is the gentleman from North Carolina who spoke earlier. And I 

want to just express my appreciation for his comments and urge 

the committee to recognize the validity of them. 

Let me begin my testimony today by pointing out that the timber 

industry in Alaska is starving in the midst of plenty. Although we 

operate on the largest national forest in the country, which includes more than 5 million acres of productive old growth, we are 

unable to harvest enough timber to meet the needs of our very 

modest domestic processing capacity. Since the Tongass Timber Reform Act passed Congress in 1990, more than 42 percent of our direct timber industry jobs have been lost. 

Ketchikan, the town in which I live, recently lost another independent mill, putting 35 more people out of work. That may not 

sound like a lot of jobs to you, but in a town the size of Ketchikan, 

those losses will be felt. And , in any case, they were important to 

the families whom they used to support. 

My message to you today is that the Forest Service cannot supply enough timber to our mills, not because they lack sufficient 

standing timber, not because too much of the old growth has been 

cut-in fact, 93 percent of what was standing in 1954 when commercial timber harvest began is still standing according to the Forest Service's own numbers. 

The reason they can't supply enough timber is because the process through which they must defend every sale is seriously flawed. 

The National Environmental Policy Act, though designed with good 

intentions, is not working to protect the environment so much as 

it is working to impede America's economy and to interfere with 

the lives of the resource industry workers upon whom so much of 

this country depends. 

Now, I would like to bring before you one example of how this 

process is working against us, and I have provided rather detailed 

comments in my written testimony. And I am only going to summarize them here, but I ask that my written comments be included 

in the record. 

The example I want to give is on an island called Kuiu, whiCh 

is about the middle of the Tongass, north and south. In the early 

'60's, there was some beach logging that took place in a place called 

No Name Bay on the east side of Kuiu Island . There were no roads 

built. But in 1977, preliminary sale planning for timber harvest on 

east Kuiu began in connection with the Alaska Pulp Company's 

long-term contract. 
42 

In March 1979, the Tongass Land Management Plan was adopted, and it designated the No Name Bay region as Land Use Designation IV, in other words, for timber harvest. So consequently in 

April of 1980, the Forest Service began a process which has not yet 

been completed. In 1980, they published the first environmental 

impact statement which identified this area for extensive timber 

harvest activity. 

That was appealed and litigated. Five years went by. No timber 

harvest had come off that area. By 1986, they had to produce a second EIS for east Kuiu. It was also appealed and litigated. Finally, 

the Circuit Court ordered a supplement EIS to be prepared on the 

same area which was concluded and signed in 1987. It, like its 

predecessors, found that there could be a suitable level of harvest 

with no environmental effect. This was also appealed and litigated. 

In 1990, Congress placed an additional 35,000 acres of Kuiu Island into a new wilderness area immediately south of the 66,000 

acre Tebenkof Bay Wilderness Area, which lies due west of No 

Name Bay. At this point, nearly 40 percent of the island, which is 

heavily forested, was now off limits to harvest. 

In 1993, the Forest Service issued the fourth environmental impact statement on the east Kuiu harvest area known as the North 

and East Kuiu Environmental Impact Statement. It also was appealed and litigated, and harvest was further delayed. 

In April of 1994, Alaska Pulp Company's long-term contract was 

terminated, putting 450 people out of work at the Sitka pulp mill 

and eventually causing the closure of the company's sawmill in 

Wrangell at the cost of another 250 direct jobs. The Forest Service 

then attempted to transfer the planned sales on east Kuiu to the 

remaining long-term contract with Ketchikan Pulp Company 

which, due to appeals on its sales, was also short of timber. 

Then the Alaska Wilderness Recreation and Tourism Association 

appealed, filed suit, alleging the need for yet another EIS. And the 

key issue-the only pointed issue was the timber sale was not reviewed for this particular buyer, and they wanted to force it to go 

through a fifth EIS. That lawsuit tied up 282 million board feet of NEPA cleared and 

desperately needed timber, which is still not available for our harvests. And, indeed, recently after negotiations between the Clinton 

Administration and plaintiffs, the fiber was given away, and, indeed, the court ordered the east Kuiu area to go through a fifth environmental impact statement, which will cost another $2 million 

to the taxpayer and take a number of months to produce. 

And I know I am out of time, but if I could conclude please. The 

result is that after nearly 20 years of planning and producing paperwork by the ton, the Forest Service has yet to produce a single 

stick of wood or support a single private-sector job from the significant stands of timber on Kuiu Island. The sales that were laid out 

in 1979 are still awaiting harvest. Now, please remember that this is land that was purposely left 

in the timber base by Congress in 1990 when the Tongass Timber 

Reform Act was passed into law. Four environmental impact statements have been performed, now a fifth has been ordered, and we 

are not allowed to operate. I heard earlier that 20 percent of the 
43 

national forests or 20 to 25 percent are available for timber harvest. On the Tongass, it is less than 10 percent. 

What we have under the current system is not an environmental 

protection but a never-ending process. The laudable goals of NEPA 

simply are not reachable under current law. The problem is NEPA 

itself. Under NEPA, we never get product, we only get lots of process. It becomes a never-ending planning cycle. 

And a big part of the problem is that no justification for any action will ever satisfy the law because anyone at anytime can allege 

possession of new information or significant impact on some protected activity such as subsistence, thus forcing a new EIS. The 

east Kuiu example illustrates how this can undermine every attempt by the agency to do its job. I have had Forest Service employees tell me in frustration that they cannot write an EIS that 

will satisfy court scrutiny. The law is simply too open-ended. 

Mr. Chairman, if you want to repair the appeals process, you 

have to amend NEPA. It has to be rewritten so that it has a closure. It can't remain open-ended. It must have some finality to it. 

It must be rewritten so that it becomes a tool to protect the environment, not a club to beat up on the people who are trying to 

work in the West and provide fiber that this country needs. Thank 

you very much for your indulgence. I would be happy to answer 

questions. 

[Statement of Mr. Phelps may be found at end of hearing.] 

Mr. HANSEN. Thank you, Mr. Phelps, and I thank all of the witnesses for their excellent testimony. We will now turn to questions 

from the committee. The Chair recognizes the gentlelady from 

Idaho for five minutes. 

Mrs. CHENOWETH. Mr. Phelps, your testimony was very interesting and sad. Has anyone thought about what Congressman Taylor 

referred to in the Rule ll[b], counterfiling of a frivolous lawsuit? 

Mr. PHELPS. Thank you for that question, Congressman. Part of 

the problem, of course, is that it costs us a great deal of money to 

fight the lawsuits that are thrown our way. And, frankly, our guys are weary. They are broke. A lot of our companies have gone out 

of business. And the other side doesn't pay for their lawsuits. This 

is something that needs to be addressed by Congress. 

This business of the other side being able to file public-interest 

lawsuits and prevent us from working and yet we have to payI mean, we are taxpayers. We pay for their stoppage of work. And 

so, yes, that is something we consider, but it is exceedingly difficult 

for us to do that when we are continually on the defensive. 

Mrs. CHENOWETH. I do want you to know that your suggestions 

were not lost on us--

Mr. PHELPS. Thank you. 

Mrs. CHENOWETH. [continuing]-about bringing language to the 

NEPA law that brings closure, and I thank you for that good suggestion. Mr. Williams, you testified that the emergency salvage law 

is working very well up in your area. Let me ask you about the 

area known as the Yak up in northern Montana. How is that coming along? I have been in the Yak. 

Mr. WILLIAMS. It is corning along very well. The case that I mentioned in which the environmental groups litigated, because of the 

exemption from administrative appeal, they actually did litigate on 
44 

that salvage sale due to their stated fear that it would affect the 

grizzly bear habitat, which is their primary excuse for no activity 

in the Yak country. 

And even the judge said two things. He said, in fact, that the 

Forest Service would not have had to go through the environmental 

analysis to determine whether it was having a negative effect on 

the grizzly bear under the salvage rider. But they did, and they 

had very good information that said that, in fact, there would be 

no effect on grizzly bear habitat. 

The Yak area is an area that has looked bad from the air because it has been heavily cut in certain areas because the timber 

has been heavily diseased, dead, and has burned, and is still in 

danger of catastrophic fire, and just simply needs to be taken out 

or burned out-one or the other. And the situation in the Yak is 

still critical. It is still critical, and it needs to be resolved. And the 

exemption from administrative appeals has helped resolve a good 

deal of that. 

Mrs. CHENOWETH. That is good. Nadine, it is so good to see you 

again. You know, I met you when you lived in California, and you 

were a witness before our committees. You have lived through the 

dismantling of the timber industry infrastructure, and it was sad. 

You now live in the Great Lakes region. Do you see anything occurring in the Great Lakes area that would lead you to believe that 

what has happened to us out West could possibly happen out there 

too? 

Ms. BAILEY. Well, just in the last three months, I have seen two 

appeals on two different forests, one on the Ottawa and one on the 

Hiawatha, that the appeals were almost verbatim. And this has 

kind of made everybody a little concerned because there have not 

been a great deal of appeals, and those appeals that have been 

filed, the Lake States have won. 

So this is a concern because even when you win, you lose because 

you have delayed the process, and our volumes are not that high 

in the Lakes States as they were in the West. So if you impact that 

smaller volume, the impacts could be very significant so we are 

concerned. 

Mrs. CHENOWETH. I thank you, Nadine, and thank you, Mr. 

Chairman. 

Mr. HANSEN. Thank you. Let me point out to the committee and 

our witnesses that we have first a vote on right now. It is the 

Parker amendment followed by two additional votes. I think we 

have got time if it is OK with the witnesses and Mr. Vento that 

we turn to him at this point. Is that OK, Bruce? 

And let me just beg the indulgence after Mr. Vento. A lot of us 

have some other questions. If we could prevail upon you to stay 

with us, we will be over on the Floor for about 20 minutes, and we 

will all come right back, and I hope Mr. Pombo will. And so if that 

is OK, we would ask you to stay. We would be very appreciative 

of it. Mr. Vento. 

Mr. VENTO. Thanks, Mr. Chairman. You know, I think that, obviously, the testimony reaches back a long ways in terms of problems 

that are clearly in the appeal process, of course, has been around 

since the turn of the century. It is not new. It has been an administrative appeal process. And what has happened, I think, is the 
45 

growth of information and knowledge, whether it is need to know 

or not, whether it is NEPA or Clean Water or whatever, has grown 

expedientially. 

And so one of the issues, I think, that really had occurred is that 

the Forest Service wasn't properly funded, wasn't funding in terms 

of the information that it was doing in preparation for sales in 

terms of NEPA, in terms of a variety of other laws. I mean, that 

is one of the problems. You have to put more in there and have the 

expertise. For instance, with NEPA, they have greatly improved their capacity to, in fact, do an acceptable NEPA statement so there has 

to be that type of expertise. For instance, we don't need people just 

with forestry degrees, we need master degrees and others in these 

roles. 

Of course, that deals with reorganizing what had been the way 

that they were functioning at a time when we are downsizing gov- ernment. Of course, the land management agencies have really taken it on the chin in the 80's and again in the 90's, and that is 

much to my dismay. 

I am interested in seeing more managers and land managers out 

there to do the job because without people, you can't do it. But you 

also have to have the advanced degrees to be able to deal with the 

type of complexities that are challenged, whether it is Clean Air or 

Water or the other types of laws that deal with a very complex 

problem like the Endangered Species Act. 

And all too often I think that the appeal process, as I said earlier, and some of you, I think, were here, that we are 

superimposing certain standards from Congress, and then it came 

down where we were cutting 12 billion on a mandated cut a year, 

so much in a certain region, and it came down to the fact that they 

couldn't make that square peg fit into essentially a round hole. 

In any case, I have information here which says that the Forest 

Service testified today saying that the length of appeals, the length of time- I mean, what is a reasonable amount of time for an appeal 

to be resolved? 

I understand that somethin g like 95 percent of the appeals are 

resolved in 45 days. That, obviously, represents that you put money down or you bid, and you have to wait for that 45 days to elapse. 

But they do resolve 95 percent of these appeals in 45 days. That 

is a big improvement, is it not, Nadine? Pardon me for using your 

first name. Your hand went out so I--

Ms. BAILEY. OK. It is an improvement, but let us look at the 

other things that have happened on those forests. The operating 

period five years ago pretty much used to be year-round during the 

80's, that you could go out into the forest and actually operate. 

But for someone working on Federal lands now, there are spotted 

owl seasons that you can't be in the forest. There are different 

times in the winter that you can't be in the forest. There are different breeding seasons so this narrows the window of opportunity 

to actually go in and perform on those sales. So if an appeal is filed and we wait 45 days, often the cycle is 

made so that the sale will be sold and have an operating period real close to the time that you can go into that forest. So that the 
46 

area is narrow, and 45 days may not be as bad as it was. But we 

continue to narrow the window of operating opportunity. Mr. VENTO. Well, clearly, some of the examples here today are 

some of the more egregious, more serious problems. And so they 

are trying to-you know, there are literally thousands of timber 

sales a year. This year so far there have been 86 appeals filed on 

what are literally-now, of course, I understand that many of the 

appeals are barred under the salvage, as our witness from Montana indicated, on the forest that he was referring to. You know, most of the sales there have been under salvage so 

there is no appeal. That solves the problem. That represents a big 

problem for me because this appeal process, which has been 

around, simply isn't something necessarily for the mischievous. It 

may have evolved that way. I know that many on this panel feel 

that that is the case. I did read all of the testimony. 

But it is something in terms of an accountability issue here in 

terms of holding the Forest Service accountable. You, obviously, 

feel that that-if this isn't appropriate, I would just suggest then 

what is appropriate, and what is the appropriate format in terms 

of holding the Forest Service and others accountable when they 

make the sale? Possibly, this began as a question of whether it was 

a fair price. It has, obviously, evolved into a much different direction today than that. So I won't continue, Mr. Chairman. My time has expired, but I 

just wanted to add in the point-! mean, the number of appeals in 

some of the regions today are down because of that, but that, I 

don't think, is the ultimate answer in terms of where we are going. 

I think it is an overreaction, and I think it, obviously, could have 

a reaction. 

But I think the end result is that they are doing-there are only 160 appeals. They have some from last year. I noted in my material here that we have something like ll5 pending right now, and 

only a small number of those are still from last year. So they are 

moving through this, but I think the solution that has really been 

causing this isn't the proper one. So I just wanted to State that. 

There is no need for a response, Mr. Chairman. 

Mr. HANSEN. Thank you, Mr. Vento. Let me just quickly point 

out on the 45 days, that is the appeal filing period, plus the Forest 

Service has 45 days to make a decision. Add those two together, 

and you have got three months on your hands. So I just make another little technicality we always work with around here. Let me 

stand in recess. We will look forward to seeing you as soon as these 

votes are over. [Recess.] 

Mr. HANSEN. The meeting will come to order. I apologize to the 

witnesses and the audience back here. When that thing goes off, that is what they pay us to do , and we just have to run. And I always admire the patience that you have when you come to these 

things, but let me tell you how valuable your input is. And if we 

can't get input from people all over America, we are sure not doing 

our job. I think Mr. Pombo and maybe one other will be with us, but I 

will start out if that is OK while we are waiting for them. Jim 

Matson, you heard and mentioned in your testimony this letter 
47 

that the forest supervisor, Hugh Thompson, put out that I referred 

to earlier when we had Mr. Unger in front of us. You are very familiar with the Dixie--

Mr. MATSON. Yes. 

Mr. HANSEN. [continuing]-and that area, probably more so than 

about anybody. What do you think the real reason is that Hugh 

Thompson has to send out a letter like this? 

Mr. MATSON. The combination of things between appeals, the 

Southern Utah Wilderness Alliance, the Friends of the Dixie pressures, and I mentioned in my testimony the concerns the Forest 

Service has had previously about low cost timber sales. The combination of those things where the Forest Service had an expectation for prices for dead spruce timber with helicopter logging. 

At one point, that far exceeded the market and our company's capability at that time to participate in that sort of thing. And so we 

told them, "Unless this thing works itself out, straightens itself out, 

and you can get something down that is priced in the arena that 

we can afford with nothing else available, our companies will be 

forced to go out of business." And that is essentially what happened. So the lesson is that they didn't believe us until we were 

gone. 

And as the infestation continues to spread and go beyond the 

areas that it was in three years ago, now they find themselves with 

no capacity. The install capacity in that forest to handle logs of 

that sort is probably 150,000 logs a year. 

Kaibab Forest Products Company could have handled a million 

of those logs, and we could have had that project worked out and 

dealt with in a three-year period if it simply would have been 

priced properly and had gone through the appeals process. So their 

rate lesson and awakening of this is tragic. 

Mr. HANSEN. Do you think there is a possibility that places like 

Fredonia will come back? 

Mr. MATSON. The Fredonia mill and all of that location is subject 

to a court order in Arizona because of the Mexican spotted owl 

under Judge Mickey's Court. And any clearances of that issue 

would then, I think, bring a smaller kind of operating style to the 

area. More family, more small business oriented than what the 

Kaibab had at the time. 

It definitely is a possibility, but, once again, if you are looking 

at putting in investments of $5 to $8 to $10 million, you would like 

to have at least a horizon to amortize that kind of investment. Otherwise, it is very risky. And this issue here today on appeals is a 

key part of finding a solution to some of that. That material is 

going to be available. 

It is a question of whether we want to have it, you know, killed 

by insects and rot or burn or all the rest of that or harvest it, and 

let some entity like a well managed forest products company pay 

the government for the opportunity to satisfy a customer's needs 

and end up with a positive cash-flow out of it. Otherwise, these 

kinds of problems are going to cost our Federal Treasury and the 

American taxpayer a lot more money than we can afford. 

Mr. HANSEN. We have had a lot of people tell us-I don't know 

if there is any truth in it-that one of the reasons for many of our 
48 

forest fires is probably a decrease in harvesting the timber. Anybody agree with that? 

Mr. MATSON. The increasing amount of fire is taking place, as 

was pointed out by the Congressman from North Carolina, that 

what is happening is the buildup in biomass without a harvesting 

mechanism out there to help reduce it is causing these significant 

problems. And fires are going to be a factor of life for some time 

to come. And all this gnashing of teeth and wringing our hands over what 

are we going to do about air quality and things like that because 

of coal-fired power plants and so on, take a look at what is happening in Arizona and Utah with last summer's set of fires and so on, 

and you can hardly see Zion, Bryce Canyon, or Grand Canyon because of it. And the rest of that stuff pales by comparison. 

Mr. HANSEN. Mr. Phelps, do you want to comment on that? 

Mr. PHELPS. Thank you, Mr. Chairman. One of the problems 

with the severe forest health problem with a significant number of 

dead trees in the forest is not only the threat of fire, but the effects 

of fires in that forest situation as opposed to fire in a healthy forest. 

The fuel load on the forest floor that results from a significant 

number of dead trees will increase the heat of the fire near the 

ground as opposed to crown flaring that happens in a healthy forest, with the result-and a documented result in some recent 

cases-of literally burning the nutrients out of the soil and making 

it sterile. And this has happened in the Pacific Northwest. We are 

very concerned that this can and will happen on the Kenai Peninsula in Alaska. 

Mr. HANSEN. Ms. Bailey, you pointed out that you were previously in California and that you and your husband had invested 

everything you had in your own area there. And the decision of the 

Federal District Judge-! assume it was the Federal District 

Judge-on the spotted owl, in effect, took you out of business, and 

that is why you are now where? Wisconsin? 

Ms. BAILEY. Yes. 

Mr. HANSEN. How many others do you think fall in that category 

for northern California, Oregon, and Washington? Do you have any 

idea at all? 

Ms. BAILEY. Well, I am just going to look at my community now, 

and if you look at northern California when I started in 1990 had 

105 sawmills that were in operation. And when I left last year, 

there were 48 left. 

So if you multiply just simply, you know, that 50 percent figure 

by an average of employees of about 200 people, that is a significant amount of people that have lost their jobs. And those are the 

direct jobs. Those are the mill jobs. That doesn't count the loggers 

and the people that service those loggers. 

When we did an economic survey in 1989, over 75 percent of the 

payroll for my community came from the forest products industry. 

And with the closure of the Sierra Pacific mill, that ends the last 

significant forest payroll in that community. So the numbers are 

much higher than what is being projected. 

You know, I heard figures-one government figure was 2,000 

jobs work loss for the northern spotted owl, and I think that is ri-
49 

diculous, that it is much higher. And the jobs-the multiplier effect-! don't think we will see the true devastation from that for 

five or ten years. 

Mr. HANSEN. We had a lumberjack here from Washington, and he used a much higher figure. He sat there in his flannel shirt and said 35,000. And he said they went to Montana, Idaho, and others 

and tried to be retrained, and it was a very emotional experience. He said, "Why should we have to? Here we are doing a very valuable service for the people in America." He said, "This is what my father did and my grandfather did. Why do we have to do this?" 

And it is very hard to equate a species to something that is so close 

to them as taking care of their families and that type of thing. Ms. BAILEY. Well, and these are communities that have forest 

health problems. I can stand at my kitchen window in Hayfork and 

look out and see dead timber that grew in numbers each day, and 

we couldn't harvest that. One thing that happened to me, we are 

trying to buy a house in Wisconsin. And we had used up all of our 

savings so we had some equity in our home in Hayfork and had 

been promised a loan for approximately $40,000. We only owed 

nine, and so they were going to let us take that much equity out. 

When they announced the closure of the mill and I went to secure that loan, they said, "We are sorry. We are not going to be 

able to loan you that money any longer because now there is no 

security in the community because the mill is gone, and we are 

afraid people are going to default on their loans." So overnight what-! thought I hadn't lost everything, but I really had because 

I even lost the ability to take the equity out of that home. 

And so the ramifications-it is not just the people that worked 

in the industry. There are retired people that put their whole life 

savings into these communities, and they just lost the equity in 

their homes. 

Mr. HANSEN. It is always the periphery thing we have to look at, 

you know. The anchor store may be a military base or the lumber 

area or a mine or whatever, but when the anchor store goes, the periphery is tremendous. That is why there are big fights on these 

base closing things on the military. Well, President Clinton prom- ised you folks at his Forest Summit he would end all that gridlock, and you would be OK. How did that turn out? 

Ms. BAILEY. Well, that is $29 million later into the Northwest, and I have spoken with many unemployed loggers that have called 

me and tried to go through the retraining programs. Most of them 

are told, "I am sorry. You don't fit into the slot so there is nothing 

we can do with you." 

In 1990, there was one environmental consultant in Trinity County listed. Now there is about 20, the very people that spent time litigating now have environmental consulting firms. And if 

you think I am exaggerating, there is a list at the State of California for everybody that applied for an Option 9 grant, and they 

range from acupuncture clinics to sewer systems in Garberville. 

That money went to fund everything but helping the rural logger that wanted to restart his life after this. 

It is incredible to me that something like this could go on. For 

example, my husband-after we decided that it was too far to commute eight hours, we decided to move from Hayfork down to Red-
50 

ding, which is about an hour and a half away. We used up our savings. We were deeply in debt by then and had owned our own 

house so we never had to rent. 

I found a house in Redding, and they needed $2,400 for me to 

walk in the door. And I didn't have that kind of money so I called 

up an agency that had gotten about, oh, $1 million to help bridge 

the gap for timber workers was their motto. And I said, you know, 

"I don't want a gift, but I would like a loan of money to put the 

deposit on this rental house. " 

And they said, "I am sorry, Mrs. Bailey. There is really nothing 

we can do for you because your husband already has a job. Now, 

if he will quit that job, then come into our training program, then 

we will retrain him, and then we will give you the money you need 

to relocate to somewhere else." And I said, "You want him to quit 

his job. He has no unemployment. What are we supposed to live 

on until then?" · 

And it was beyond their comprehension that we wouldn't be willing to jump through- and I think we are typical. Most of the men 

in the timber industry that I know of have never taken a Federal 

dollar in their life, and the minute they walked into the places that 

were giving them out were told- explained the hoops they were 

going to have to jump through to get that money, they just turned 

around and walked out again. And some never stopped walking. So 

it is a real, real tragedy, and I hope that someday the money that 

has been wasted and squandered will be accounted for. 

Mr. HANSEN. Well, that whole thing turned out to be a nightmare up in that particular area, and I think someday that should 

be chronicled and should be brought up when we talk the Endangered Species Act. Actually, I think in this committee we came up 

with a good piece of legislation which, in my opinion, the environmental community has made it appear like we are doing away with 

the entire Act. This one was one that modified it and gave local 

input, and I would just wish those who would criticize it would follow the old adage as, "Please read the bill and speak to the bill instead of emotions." But the Robert Redford mentality is to speak 

in emotions. 

Ms. BAILEY. That is right. Mr. HANSEN. Just think. He was almost the Park Director, which 

makes me shiver at the thought. Anyway, Mr. ·Phelps, what was 

the cost of that lawsuit that tied up 282 million feet of timber? 

What did that cost? 

Mr. PHELPS. About $4 million . Mr. HANSEN. What was the cost of the EIS, which had released 

the timber without the lawsuit? 

Mr. PHELPS. Actually, I am sorry. That was $4 million. The new 

EIS-it is going to cost us-the different lot that the court ordered 

will cost about $2 million more. 

Mr. HANSEN. Wow. Mr. Bennett, you had pointed out that one 

person had-1 can't remember the figure-52 appeals-just one 

person? 

Mr. BENNETT. Fifty-two out of fifty-seven , about 91 percent. 

Right. Mr. HANSEN. What standing did this individual have? 
51 

Mr. BENNETT. That happened on the Ouachita in Arkansas, and 

I am really not familiar with the particulars of that. It was just an 

individual, and I don't know that he had an affiliation with any 

particular group. He filed under his name. The same individual 

also filed an additional number of appeals on the neighboring forests in Arkansas at the same time. So he was a pretty busy fellow 

that year. 

Mr. HANSEN. The point I am getting at is as we go through this, 

and you have heard the discussion we had with the members and 

the Forest Service, one of the things that I particularly feel strong about is that the person has some standing; you know, that he has 

some right to get into this thing. 

We are finding now that a three-by-five card and a 32-cent stamp 

can just foul up a lot of good things, whether it be Section 404 of 

the Wetlands or an appeal process. And that really is of great concern to us. 

So I am always curious when I hear this because I go out into 

the country and talk to people in Forest Service and the States and 

counties, and I always find some guy that just got a bone in his 

throat or mad or doesn't like it, and he has got a fax machine and 

a mailing list, and hang onto your hat. He can grind this government down. He can stop industry right in its tracks, and this is the 

kind of thing that bothers me. Mr. Bennett, what is happening 

with the Migratory Bird Treaty Act? 

Mr. BENNETT. Well, that is an interesting new interpretation of 

a law that is actually about 80 years old, and we have seen it used 

recently on three different legal actions--Dne in Indiana, one in 

Georgia, and one I believe in Arkansas. 

And what that is, it was a law that was passed around the turn 

of the century when bird feathers were a very popular fashion accessory. And there was some concern that the birds were going to 

be overhunted or depleted beyond their ability to come back just to 

accommodate hats or boas or whatever. 

So this particular law was put into place to try to protect these 

migratory birds. What we found happened on the Hoosier National 

Forest was that an activist interpreted that particular law to protect any bird anywhere from anything. The judge in that particular 

court dismissed that particu lar piece of litigation. Shortly thereafter, that same Act was used to file litigation in Georgia with the 

judge down there who did actually issue a restraining order and 

stopped all timber harvesting on the Chattahoochee. 

In light of that, the Indiana judge revisited the issue and again 

came up even more strongly in his conviction that you have t~ 

if you are going to look at what might actually lead to the death 

of a bird, then you have to consider a much broader range of possibilities than just the fact that it might have a nest in a tree that 

was cut down. 

And he suggested that glass buildings-birds fly into those and 

are killed or injured. Birds fly into airplanes. Birds fly into antennas. Birds fly into cars. There is just almost any long list of things 

that might happen, and that, in his opinion, when Congress initially passed that law, they thought that good sense or common 

sense should prevail, and that we would understand that things like that would-accidents would happen. 
.52 

When this was presented back to the judge in Georgia, she said 

she didn't care. She didn't want the life of one bird lost. So she issued her restraining order. This is litigation, and in response to 

something that Mr. Vento had said earlier, I agree. I think the appeals process for project level decisions has been improved and is 

probably more efficient. And I think that the environmental community would come to the same conclusion. 

And so in Region 8, where I am from, at the time when we have 

seen a reduction in administrative appeals, we have seen a threetime increase in litigation. So basically as the appeals process 

failed to serve what they were trying to accomplish, they have 

turned to the courts now to try to do the same thing. 

Mr. HANSEN. I couldn't agree more. Mr. Williams, based on your 

discussion with Forest Service managers, can you estimate to what 

degree the appeals process has added cost to timber sales? Any way 

you could take a stab at that? 

Mr. WILLIAMS. I don't have any figures in terms of dollars that 

it has caused. But also in response to that concern and Mr. Vento's 

earlier concern about, you know, that the appeals are taken care 

of in a timely fashion from his perspective, and maybe that is true. 

I think on the average and on the Kootenai, for example, which is 

a major timber producer in the West, the appeals are resolved one 

way or another in an average of about 80 days. 

And that seems reasonable except in visiting with the Forest 

Service personnel on the ground, their concern is more about cost, 

which is significant, of dealing with those appeals and subsequent 

court action, but the cost to the consumers, the cost to the industry, 

and the cost to the American public of the nonproductivity that results during that timeframe. They aren't getting anything else 

done. It is like the Region 1 supervisor is fond of saying, so I think he 

would be not uncomfortable with me quoting him on this, in his observation, "the Forest Service personnel are spending two-thirds of 

their time dealing with the fear of litigation and the fear of appeals, and only a third of the time getting their job done." And he 

wants to see that flip-flopped. 

They should be spending at least two-thirds of their time getting 

productive work done in the forest and preparing for a lot more 

work and a lot more management being done by industry in the 

forest. And I agree. It needs to be flip-flopped. 

That proportion-that two-third s/one-third does need to be flipflopped, and I think you would see perhaps not a considerable reduction in cost of operations, but a huge increase in productivity 

of our Federal lands for the same amount of money. 

Mr. HANSEN. I appreciate that. We notice you have all given us 

some good suggestions on the appeal process. It is kind of intriguing what Mr. Phelps brought up about NEPA, which I see where 

you are coming from-a tough decision. I think one of you used the 

statement NEPA instead of protecting the environment has somewhat fouled up the process of getting things done. I guess in my 

many years on this committee I believe that more every day just 

in minor things like land swaps and other things-how difficult it 

becomes. 
53 

Let me just say that we really appreciate your patience. You 

have been with us now almost fou r hours, and coming back here, 

it has been very kind of you to do that. This is our sixth or seventh 

hearing on the forest issues, and we hope that we will soon be able 

to come up with some legislation which will make a lot of pebple 

mad I am sure on both sides. But we really fe el there has to be 

some relief and some remedy to some of the problems created. 

It always amazes me a round here how some people put a bill in 

10 years ago, and they almost thi nk it came from Mt. Sinai, that 

the hand of God was on it, and you can't change one comma or one 

semicolon. And just a little old ma n writes these things, and the 

best thing we can do is go back and do them over again. 

I think as a State legislator, Speaker of the House, as a city 

councilman that I h ad those experiences. We always were changing 

laws to fit and make them better-to make them work better. In 

my opinion, there are many things regarding forest work that have 

to be changed, and your input has been very valuable. So with 

that, we will consider this meeting closed and adjourned. Thank 

you. 

[Whereupon, at 1:40 p.m., the Subcommittee wa s adjourned; and 

the following was submitted for the record:] 
54 

TESTIMONY OF THE 

CALIFORNIA CATTLEMEN'S ASSOCIATION 

REGARDING THE 

UNITED STATES FOREST SERVICE 

APPEALS PROCESS 

Prepared by Daniel K. Macon 

CCA Director of Industry Affairs 

june 1 7, 1996 

On behalf of the members of the Cal ifornia Cattlemen's Association, thank you for 

the opportunity to provide testimony regarding the current appealsregulations for the U.S. 

Forest Service. We have numerous concerns with the manner in whi.ch the current 

administrative appeals process works, and we also have several ideas for improving this 

process. 

The California Cattlemen's Association (CCA) represents approximately 3,.500 

members from throughout California on legislative, regulatory and operational issues 

impacting the beef cattle industry. We also represent 38 local affiliate organizations, and 

CCA's members include most of the permittees who operate on U.S. Forest Service (FS) 

lands throughout Region 5. 

Our members have had experience in dealing with both the administrative appeals 

process and the judicial review process regard ing the mana&ement of FS rangelands, and we 

will provide comments on both. We will also provide specific comments that we feel will 

improve the appeals process for permittees as well as for the agency and the public. 

When thP agPnc.y i~~ues a rledsion regarding the management of a grazing allotment, 

the permittee has the right to appeal the decision due to hi:./her contractual relationship with 

the agency (the grazing permit creates this relationship). Furthermore, members of the 
55 

public who have participated in the decision-111aking process through the or;~ortunities 

afforced by the National Environmental Policy Act (NEPA) also have the right to appeal 

these decisions. Final ly, preservationist organi z<ltions are increasingly turning to the court 

system as a method of appealing decisions. As in most examples, litigation further 

compli cates resource decisions. 

Administrative Appeals Process: 

CCA has been directl y involved in two significant administrative appeals involving 

the management of FS grazing allotments during the past 4 years. The first case involved 

the Tahoe Basin Management Unit and wris ultimately resolved in favor of the grazing 

permittees. The second case involved the Stanislaus National Forest and was resolved 

unfavorably to the grazing permittees. Both cases illustrate the problems with the current 

appeals process. 

In july 1993, the Lake Tahoe Basin Management Unit issued a decision for the Meiss 

Grazing Allotment requiring the removal of livestock for up to 15 years. The grazing 

permittees hired an attorney specializing in natural resource law and filed an appeal of the 

decision. CCA also filed an appeal of the decision as an interested public (this appeal was 

dismissed by the Chief of the Forest Service). The preparation of tho=se appeals, particularly 

that filed bt the permittees, was extremely time consuming and costly (the permittees 

incurred costs in excess of $45,000, while CCA expended numerous staff hours). The 

decision was upheld by the Forest Supervisor, who then forwarded the appc.1ls to the 

Regional Forester for the Pacific Southwest Region (R5). Subsequently, the appeals officer, 

Deputy Regional Forester Dale Bosworth, was promoted to Regional Forester in the 

1:\LEGISlAT\L..S FSAP?l./5"7 
56 

Intermountain Region. After the appointment of jim Lawrence as his replacement, the 

perrr.ittees and their counsel made an oral presentation to Mr. Lawrence in june 1994. 

Delays in researching the record of the original decision, as well as additional personnel 

changes in the RS office, delayed the final decision until June 1995 (approximately 2 years 

after the issuance of the original decision and the filing of the original appeal). While the 

appeal decision overturned the original management plan, the cos: to the permittees in terms 

of time and money was substantial. 

In December 1995, the Stanislaus National Forest issued a decision reduc.:i n~ the 

number of permitted cattle on the Highland Lakes Allotment by 33 percent. Again, the 

grazing permittees hired legal representation and appealed the decision. CCA, along with 

the local cattlemen's association and other local agriculture and resource groups, also 

appealed the decision. In addition, two preservation groups w ho were represented by the 

Forest as opposing all grazing also appedled the decision. Based on new FS appeal 

regulations, the permittees, along with CCA and the other appellants, were invited to an 

informal disposition hearing. During this mf'>eting, which the environmental organizations 

were unable to attend, CCA suggested that an impartial third party be contracted to highlight 

ti-Je common interests of all parties interested in the allotment. CCA further suggested that 

:~·;is effort also involve third party scientific parti crpation to assist in developing a 

management plan that represented t~ese common interests. All parties, including the 

Distrirt staff of the Forest (who coordinated the hearing) seemed enthusiastic about this 

option . However, the environmental appellants, who participated in a conference call with 

the Forest several days later, vetoed the idea, apparently still favoring the elimination of 

1:\l.FCISLA r,us FSAPPLTST 
57 

grazing on the allotment. As a result, all interested public appeals, including CCA's, were 

dismissed . The appeals officer in this case (the Forest Supervisor) was also the individuai 

responsible for the decision which generated the appeals. The permittees' appeal was 

forwarded to the RS level, where the Forest's decision was upheld with the directive that 

the Forest work more closely with the permittees in implementing the new decision than 

it had in the fJd>l. 

These two examples highlight a number of problems with the current appeals 

process. First, successful appeals require vast fi nancial and time resources on the part oi 

appellants. FS regulations have become so cumbersome that legal counsel is often required . 

Furthermore, CCA believes that it is inherently wrong for the individual official who i> 

responsible for a decision to also be responsible for ascertaining the relevance of appeal s 

of that decision. We feel that this policy infringes upon the right of grazing permittees and 

other appellants to due process. Congress does not decide if the laws it passes are 

mnstitutional; the Supreme Court and the rest of the judicial branch of our government 

performs this role. Finally, while we applaud new efforts to resolve appeals informally, 

these efforts appear to be too little, too late. Efforts to involve all interested parties in broad 

scale planning efforts under NEPA should take place up front, ~ot after a decision has been 

rcnder;od. Furthermore, informal disposition hearings that do i10l involve all appellants are 

a waste of time. 

ludicial Proceedings involvinz the Forest Service: 

In 1994, the Sierra Club Legal Defense fund, representing a coalition of preservation 

groups, filed suit against the Sierra National Forest for failure to complete NEPA 

1:\LEC ISLA T\US FSAPP!. .TS T 
58 

documentation for annual operating plans, allotment management plans and grazing permit 

rPissuancP. The suit also sought an injunction against grazing during that grazing season. 

While not named as defendants in the litigation, the permittees were obviously extremely 

concerned about the prospects for utilizing their allotments during the coming grazing 

season. I he permittees contracted legal counsel, and along with CCA and the California 

Farm Bureau Federation, filed an amicus brief supporting the Forest's position. In our briei, 

we argued that we should be involved in any discussions between the plaintiffs and FS 

officials, and we were ultimately granted this right by the judge. These three-way 

discussions resulted in a settlement which directed the Forest to schedule all allotments for 

NEPA analysis while providing for interim grazing permits to be issued while such analysis 

was pending. Under the Equal Access to justice Aci, the Sierra Club Legal Defense Fund 

received payment from the U.S. government in the amount of $55,000, even though the 

case never went to tri.1/, On the other hand, the permittees incurred legal costs in excess 

of $60,000, which they are still attempting to pay. During an era in which preservation 

groups have had difficulty in raising funds through membership, access to government funds 

through the COIJrt system has become quite attractive. 

This case, along with a similar case in Montana, was largely responsible for the 

inclusion of language in tho' Rescissio11s /'.Ct of 1 S'JS dealing with the reissuance of grazing 

permits and the application of NEPA. This case also demonstrates the inequity in the Equal 

Access to Justice Act. CCA could just as easily argue that the settlement was more favorable 

to the permittees, yet neither the permittees nor CCA would be eligible for reimbursement 

of legal fees by the federal government. 

1~\LEGISLAf,USFSAPPL T'\T 
59 

Possible Solutions; 

As stated previously, CCA believes that the current appeals regulations 

inappropriately place the decision-maker in the dual role of appeals officer. That is, those 

who are making decisions are also ruling on appeals of those same decisions. We believe 

that appeals process developed by the Bureau of Land Management, which utilizes 

administrative law judges, is much more appropriate. Permittees who face decisions which 

significantly reduce or eliminate grazing must be entitled to due process. 

Secondly, we believe that while informal disposition hearings may serve a useful role, 

this role is underm ined when all parties to an appeal(s) are not present. Furthermore, by 

the time an issue has reached the appeal stage, collaborative efforts may be too late. We 

believe that these types of informal meetings are more appropriate prior to decision points. 

With respect to litigation involving the agency, the Equal Access to Justice Act creates 

in equalities between preservation groups and those private individuals who provide on-theground management of FS resources. In cases which are settled out of court, no legal fees 

shou ld be paid to any party to litigation. Alternatively, each party could be reimbursed at 

the level of the least costly of the parties' legal fees as an incentive for settling cases prior 

tc formal hearings. In those cases which are decided !n court favorable to the position 

;.;·guE'd by permittees, the government should reimburs.:- the permittees' legal fees. 

Conclusion: 

Again, the California Cattlemen's Association appreciates thi5 Opportunity to prnvido> 

Congress with a brief description of our experience with the U.S. Forest Service appeals 

process. We bel ieve that the current system withholds due process from grazing permittees 

I;\L EG!SLA T\LSFSAPf>l. TST 
60 

and other appellants, and we believe that changes arc needed to ensure that appeals, both 

judicial and administrative, are handled in an equitable manner. Thank you for your 

consideration of our perspective 011 this important issue. 
61 

STATEMENT OF 

DAVID G. UNGER, ASSOCIATE CHIEF 

FOREST SERVICE, U.S. DEPARTMENT OF AGRICULTURE 

Before the 

Subcommittee on National Parks, Forests and Lands 

Committee on Resources 

United States House of Representatives 

Forest Service Administrative Appeals Process 

June 20, 1996 

MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEE: 

Thank you for the opportunity to discuss the operation of the 

Forest Service Administrative Appeals procedures. 

It goes without saying that segments of the American public have 

widely differing views about how the nation's natural resources 

should be managed. These differences have, in turn, greatly 

challenged management of the National Forests and Grasslands. 

Administrative appeals procedures are one method used to help 

build support for the decisions of this agency. Clearly, the 

stridency of debate has not gone away. But we believe the 

appeals procedure has helped to resolve many disagreements and 

misunderstandings about Forest Service activities--it has 

certainly lowered the volume in the debate. 

Today, I will focus most of my remarks on the process found at 36 

26-518 96-3 
62 

2 

CFR 2 15 that addresses appeals o f projec t-level decisions. I 

will also touch briefly on the appeals p r oc esses for forest plan 

decisions a nd for appeals of permits and authorizations. These 

procedures are found in sections 217 and 25 1, respectively, of 

Chapter 36 of the Code of Federal Regulations. 

Proiect-level Appeals 

Just over a year ago--March 8, 1 995, to be exact--I testified 

before the Subcommittee on Forests and Public Land Management o f 

the Sena te Committee on Energy and Natural Resources on the 

Forest Service administrative appeals process . That hearing was 

prompted by the changes to the appeals process brought about by 

language in the Interior and Related Agencies Appropriations Act 

(P.L . 102-381, Section 322 ) . The f inal regulation i mpl ementing 

these changes became effective on January 4, 1994 (58 Fed Reg 

58904). Having operated under the new procedure for a litt le 

more t han a year, I was happy to report that "We believe that the 

process is working sm6othly and with good results." Today , I c an 

again say that the revised appeals process is working. 

The legislated appeals process contained in the 19 93 

Appropriations Act attempted to accomplish a number of pol i cy 

objectives. These were: 1) encourag ing public involveme nt in 

Fore st Service decisionmaking before decisions are made; 2 ) 

streamlining the procedures for project appeals once a decision 

is made; 3) establishing time frames in law to assure timely 
63 

3 

decisions; and 4) encouraging informal resolution of issues 

through face-to - face meetings during the appeals period. 

Success of the revised project appeals process i s indicated in 

the following numbers. For fiscal year 1995, 694 appeals were 

filed on the 2,347 projects that were subject to appeal under 36 

CFR 215. All but 30 of these appeals were disposed of within the 

statutory 45 day time limit. In more than 75 percent of the 

appeals, informal resolution was attempted producing resolutions 

in 60 cases, or approximately 9 percent of the total number of 

appeals. Additionally, 62 appeals were withdrawn by the 

appellant. Of the remaining 542 appeals for which fina l 

decisions were issued, 25 projects were withdrawn. However, many 

of these projects are being redesigned for further 

consideration. 

We evaluate this data in the following way. The public is 

clearly participating in the predecisional deliberations. This 

is shown by the number of individuals who demonstrated interest 

during the predecisional process and who subsequently had 

standing to file appeals. Moreover, appeals are be ing handled in 

a timely fashion--more than 95 percent were resolved in the 

statutory 45 day period. 

Beyond these numbers , we also looked at how the appeals process 

was working for timber sales and if appeals were merely a step in 

a process that inevitably led to litigation. With respect to the 
timber sales, 381 appeals were fil ed on 1,897 sales- - about 20 

percent, a rate similar to that for other types of projects. 

With respect to litigation, lawsuits were filed at a rate of one 

lawsuit for every 50 appeals. Clearly, the appeal process 

provides resolution for the vast majority of contested Forest 

Service project decisions. 

Possible Changes to t he Project Level Aggeals 

4 

In preparation for this heraing, we asked the nine Forest Service 

Regions how the revised appeals process is working. Only one 

criticism of the current system was common to most respondents. 

This c riticism is that the criterion for establishing the right 

to appeal (Section 322(c) P.L. 102-381) is overly broad. Persons 

are not required to express any specific concerns during 

predecisional project development. This allows parties to file 

appeals that are vague or that raise spec ific concerns for the 

first time on appeal, and prevents the Forest Service from 

addressing these concerns before decisions are made. Having 

noted this concern, our records show that less than two percent 

of the appellants did not participate with written comments 

during seeping or the 30 day notice and comment period. I n l ight 

of these facts, we do not believe that limiting standing to those 

individuals who had filed written comments during predecisional 

project development would improve the process signifi ca tnly. 

Certainly, when considering disadvantages of destabilizing the 

current appeals process, we would not advo cate changing the 
65 

5 

provisions of section 322(c) at this time. 

Aopeals Under Section 217 and 251 

I would like to review briefly operations under the other appeals 

processes, section 217 for forest plans and regional guides and 

section 251 for permits and authorizations. 

Deciding appeals on forest plans and regional guides, other than 

non-significant forest plan amendments covered under section 215 , 

creates a substantial workload. This is not surprising given the 

broad scope of these documents and the controversy inherent in 

the management of National Forests and Grasslands. We have made 

substantial progress in eliminating the backlog of appeals. At 

the end of fiscal year 1995, 115 appeals were pending . As of 

June 10, we have reduced this number to 15, and we expect to see 

further reductions in the backlog by year's end. Certainly we 

are working to handle forest plan appeals as efficiently as 

possible. But we also recognize that operation of any appeals 

process that truly gives the public a voice in deciding how our 

national forests are to be managed will n ecessarily require a 

high commitment of time and resources. We are not considering 

changes to section 217 regulations at this time. 

Appeals of permits and authorizations under section 251 are 

materially different from project and forest plan appeals. These 

appeals relate to Forest Service decisions on permits and 
authorizations. As such, appe l lants to the appeal process are 

limiced to part ies directly affected by t he decision on appeal. 

Under s ect ion 251, 166 appeals were processe~ in fiscal year 

1995. To date, 83 appeals have been filed this fiscal year. We 

believe that the section 25 1 appeals process works in a 

relatively effective and expeditious manner. 

We will be proposing some changes to the 251 regulat ions that 

will streamline the administrative process and make the 

terminology consistent with 36 CFR 215. The most substantive 

change is the result of provisions in Section 282 of the Federal 

Crop Insurance Reform and USDA Reorganization Act of 1994, 

relating to participation in mediation of livestock grazing 

disputes on National Forest System Lands. Currently, we are 

determining how best to comply wit h this provision and expect to 

have proposals for public review in the next few months. 

Closing 

In closing, I would like to return to my testimony from last 

year. At that time, I said: 

The changes in the project level appeals process were 

designed to increase public participation, to help the Forest 

Service focus even more on listening and ensuring that the 

views of the public are considered before decisions are made, 

and to streamline the process. We believe that the new 
67 

process is working and with good results . 

After an additional 15 months operating under the new 

regula t ions, we have no reason to change our assessment of the 

project level appeals process. This does not mean that we are 

not working to further improve the decision-making process. For 

example, we are focusing our e fforts on better public involvement 

in the project formulation stage. Where the public is actively 

involved in project design, we find that the likelihood of 

appeals is reduced and , where filed, the appeals are much more 

focused which, in turn , facilitates timely disposit i on of the 

appeal. 

This concludes my statement. I will be happy to respond to your 

questions. 

7 
68 

TESTIMONY OF 

NOEL E. WILLIAMS 

COMMISSIONER; 

LINCOLN COUNTY, MONTANA 

BEFORE THE 

SUBCOMMITTEE ON NATIONAL PARKS, 

FORESTS AND LANDS 

ADMINISTRATIVE APPEALS EXEMPTION 

FOR SALVAGE SALES 

JUNE 20, 1996 

10:00 AM 

1324 LONGWORTH 

HOUSE OFFICE BLDG., 

WASHINGTON, D.C. 
69 

THANK YOU MR. CHAIRMAN, AND MEMBERS OF THE COMMITTEE, 

FOR GIVING ME THE OPPORTUNITY TO APPEAR BEFORE YOU TODAY. 

MY NAME IS NOEL WILLIAMS AND I HAVE BEEN, FOR THE PAST DOZEN 

YEARS, A COUNTY COMMISSIONER IN LINCOLN COUNTY, MONTANA. I 

ALSO SIT ON THE NATIONAL ASSOCIATION OF COUNTIES' PUBLIC 

LANDS STEERING COMMITTEE, AND AM PAST PRESIDENT OF THE 

WESTERN INTERSTATE REGION WHICH CONSISTS OF THE COUNTIES 

WITHIN THE FIFTEEN WESTERN-MOST STATES. 

BASED ON DISCUSSION WITH YOUR STAFF, I PERCIEVE MY 

PRIMARY TASK HERE TODAY IS TO DISCUSS THE RESULTS OF THE 

CURRENT FOREST SALVAGE PROGRAM ON FEDERAL LANDS RELATIVE TO 

THE EXEMPTION FROM ADMINISTRATIVE APPEALS UNDER THE TIMBER 

PROVISIONS OF THE 1995 RESCISSIONS BILL (COMMONLY REFERRED 

TO AS THE "SALVAGE RIDER"). 

FROM MY PERSPECTIVE, THE GENERAL CONSENSUS OF LOCAL 

LEADERS, AND FOREST SERVICE PERSONNEL, AND THE WOOD PRODUCTS 

INDUSTRY PARTICIPANTS, IS THAT THE CURRENT SALVAGE PROGRAM 

BASED ON THE SO-CALLED SALVAGE RIOER HAS BEEN THE MOST 

SUCCESSFUL POSITIVE CHANGE IN FEDERAL FOREST MANAGEMENT 

DIRECTION IN RECENT YEARS. 

LET ME BRIEFLY EXPLAIN THE CIRCUMSTANCES OF THE 

COMMUNITIES IN MY COUNTY, AND KEEP IN MIND THAT THESE 

CIRCUMSTANCES ARE NOT DISSIMILAR TO A HOST OF OTHER RURAL 

WESTERN COMMUNITIES . ALMOST 80 PERCENT OF OUR 3750 SQUARE 

MILES IS ENCOMPASSED BY THE KOOTENAI NATIONAL FOREST, WHILE 

ONLY 7 PERCENT IS COMPRISED OF PRIVATE/ NON-CORPORATE 

OWNERSHIP WHICH PROVIDES THE TAX BASE TO SUPPORT PUBLIC 

SERVICES. RECENT STATISTICS FROM THE BUREAU OF BUSINESS ANO 

ECONOMIC RESEARCH INDICATES THAT 56% OF OUR LABOR FORCE IS 

INVOLVED IN THE WOOD PRODUCTS INDUSTRY, AND 29% IS FEDERAL 

CIVILIAN WORK FORCE -PRIMARILY U.S.F.S. PERSONNEL CHARGED 

WITH MANAGING THOSE FEDERAL LANDS. THOSE TWO GROUPS ALONE 

COMPRISE 85% OF OUR TOTAL WORK FORCE; CONSEQUENTLY, IT 

BECOMES EASY TO SEE HOW VIRTUALLY EVERY CITIZEN IN LINCOLN 

COUNTY IS IN SOME WAY IMPACTED BY THE MANAGEMENT OF THE 

KOOTENAI NATIONAL FOREST. 

BECAUSE OF THIS DEPENDENCE, WE TRY TO CLOSELY MONITOR 

THE ACTIONS, DECISIONS, AND RESULTS OF U.S. FOREST SERVICE 

MANAGEMENT. THE ANNUAL GROWTH OF WOOD FIBER WITHIN THE KNF 

IS ESTIMATED BY SCIENTISTS TO BE BETWEEN 500 MMBF AND 600 

MMBF; WHEN THAT BIOLOGICAL POTENTIAL WAS DISCOUNTED TO MEET 

THE VARIOUS OTHER RESOURCE NEEDS IDENTIFIED IN THE FOREST 

PLANNING PROCESS (I.E., WATER QUALITY, WILDLIFE , FISH , RECREATION, ENDANGERED SPECIES, ETC.) , IT WAS DE'fER14INEO 

THAT AN ALLOWABLE SALE QUANTITY THAT COULD BE CONSERVATIVELY 

PROJECTED ON A DECADAL BASIS, AND EASILY PROVIDE FOR A 
70 

SUSTAINED YIELD TIMBER PROGRAM, WAS APPROX. 240 MMBF. 

INDUSTRY AND COMMUNITIES WERE ENCOURAGED TO MAKE LONG-TERM 

PLANNING DECISIONS BASE ON THESE NUMBERS. AFTER SUCH PLANS 

WERE MADE, HOWEVER, SUBSEQUENT ENVIRONMENTAL CONSIDERATIONS, 

ADMINISTRATIVE APPEALS, AND LITIGATION QUICKLY ERODED THEM. 

THESE APPEALS AND LITIGATION OFENTIMES SEEM TO BE NOTHING 

MORE THAN DELAY TACTICS AND EFFORTS TO DETER ANY UTILIZATION 

OF COMMODITY RESOURCES. THE MOST RECENT CHALLENGES HAVE 

STATED THAT THE GRIZZLY BEAR RECOVERY DECISIONS ON SALVAGE 

SALES WERE "ARBITRARY AND CAPRICIOUS". HOWEVER, THE JUDGES 

REVIEWING THESE CLAIMS HAVE UNANIMOUSLY REJECTED THEM, 

INFERRING THAT IT WAS THE CLAIMS THEMSELVES THAT WERE 

ARBITRARY AND CAPRICIOUS. 

ILLUSTRATIVE RESULTS: FISCAL YEAR 1994 TOTAL SALES -59 MMBF; 

FISCAL YEAR 1995 TOTAL SALES -58 MMBF. CONSEQUENCES: 

RAMPANT UNEMPLOYMENT AND BUSINESS FAILURES AND ASSOCIATED 

SOCIO-ECONOMIC DISARRAY. 

THE RAY OF HOPE IS THE CURRENT SALVAGE PROGRAM 

EXPEDITED BY THE EXEMPTION FROM ADMINISTRATIVE APPEALS, 

COMPARE THE PREVIOUS NUMBERS WITH CURRENT FISCAL YEAR 1996: 

THROUGH MID-JUNE, 96 MMBF SOLD, WITH YEAR END TOTAL 

PROJECTED TO BE 167 MMBF, 149 OF WHICH WILL BE SALVAGE. THE 

INFERENCES ARE CLEAR. 

THIS PROGRAM IS KEEPING MANY OF MY FRIENDS AND 

NEIGHBORS EMPLOYED. THIS PROGRAM IS GIVING A MEASURE OF 

SECURITY TO MANY OF THE SMALL.OPERATORS IN OUR COMMUNITIES, 

WHO ARE CURRENTLY MAKING MAJOR INVESTMENTS IN LOWIMPACT,HIGH UTILIZATION, MACHINERY IN ORDER TO BETTER COMPLY 

WITH ENVIROMENTALLY SENSITIVE GUIDELINES. WE MUST NOT A.LLO\v 

THIS TO BE A FALSE SECURITY. 

THE OWNER/MANAGER OF ONE OF OUR MAJOR WOOD PRODUCTS 

CONVERSION PLANTS STATED UNEQUIVOCALLY THAT WITHOUT RAW 

MATERIALS AVAILABLE AS A DIRECT RESULT OF THE SALVAGE RIDER, 

THEIR LABOR FORCE WOULD ~VE BEEN REDUCED BY A MINIMUM OF 40 

PERCENT (FROM 200 TO 120), FROM WHICH WOULD HAVE SPUN OFF AN 

EVEN HIGHER NUMBER OF JOB LOSSES IN SERVICE AND SUPPORT 

INDUSTRIES. HE FURTHER COMMENTED (SIGNIFICANTLY, FOR THE 

PURPOSES OF THIS HEARING) THAT IT HAS BECOME OBVIOUS TO HIM 

THAT THE PROGRAM "HAS HAD AN EXTREMELY POSITIVE EFFECT ON 

THE MORALE AND PRODUCTIVITY AND TEAM WORK OF THE FOREST 

SERVICE EMPLOYEES". THERE ALSO APPEARS TO BE A M:JCH GREATER 

ATMOSPHERE OF COOPERATION: BOTH INDUSTRY AND AGENCY ARE 

AWARE THAT THEIR ACTYONS WILL BE CLOSELY SCRUTINIZED -THEY 

HAVE TO DO A GOOD JOB BECAUSE THEIR FUTURE DEPENDS UPON IT, 

AS DOES THE QUALITY OF FUTURE HABITAT CONDITIONS. 

THESE OBSERVATIONS HAVE BEEN ECHOED BY VARIOUS DISTRICT 

RANGERS- rl'HEY HAVE NO DOUBT THAT CURRENT ACTIVITIES WOULD 

HAVE BEEN HELD UP BY APPEALS AS A MA'I'TER OF COURSE. SOJ-1E 

GROUPS SUBMIT IDENTICAL APPEALS ON EVERY PROJECT; NOT 

HAVING TO DEAL WITH SUCH TACTICS HAS ALLOWED THE AGENCY AT 
71 

THE LOCAL LEVEL TO PROVIDE A HIGHER QUALITY OF WORK IN LESS 

TIME OVERALL BECAUSE MORE TIME CAN HE SPENT ON THE GROUND. 

THE REDUCTION IN PAPER WORK AND DOCUMENTATION HAS ALLOWED 

THEM TO PROVIDE SMALLER PROJECTS AVAILABLE TO A GREATER 

ARRAY OF OPERATORS AND CONTRACTORS. 

RELATIVE TO THE ACCUSATION THE CURRENT LAW ALLOWS 

''LAWLESS LOGGING", OUR OBSERVATIONS HAVE BEEN AS FOLLOWS: 

1) THE FOREST SERVICE APPEARS TO BE EXECUTING THE SAME 

LEVEL OF ENVIRONMENTAL ANALYSIS AS BEFORE, INCLUDING 

PUBLIC INVOLVEMENT, AND APPEARS TO BE CONTINUING 

COMPLIANCE WITH ALL ENVIRONMENTAL LAWS, WITH THE ADDEC 

ADVANTAGE OF HAVING MORE TIME AVAILABLE ON THE GROUND 

TO "PROOF' THEIR ANALYSES AND COMPLIANCE. 

2) THE AGENCY HAS CONTINUED TO CONSULT WITH USFW ON ALL 

SALES THAT MAY AFFECT THREATENED AND ENDANGERED 

SPECIES. 

3) THEY APPEAR TO BE USING A CONSISTENT DEFINITION OF 

SALVAGE. THE LESS THAN TEN PERCENT "GREEN" VOLUME 

INCLUDES ONLY THOSE TREES NECESSARILY HARVESTED FOR 

TRAILS, LANDINGS, ETC., AND THOSE IN EXTREME RISK OF 

MORTALITY. 

AS FOR THE ACCUSATION THAT THE AGENCY IS USING THE 

APPEALS EXEMPTION AS LICENSE TO "RAPJI.CIOUSLY DENUDE" THE 

VAST AREAS AFFECTED BY FIRE IN 1994 1 THE FACTS INDICATE 

OTHERWISE. FOR EXAMPLE, ON THE KNF, 53000 ACRES WERE 

BURNED, YET ONLY ABOUT 4500 (LESS TRAN 10%) ARE PLMINED FCR 

SALVAGE. THIS IS HARDLY INDICATIVE OF AN "EXCESSIVE" USE OJ 

THE APPEALS EXEMPTION LEGISLATION. IN FACT MANY LOCAL 

OBSERVORS FEEL THAT THE FOREST MANAGERS ARE BEING lo!ORE 

CONSERVATIVE THAN IS REASONABLE. 

I WOULD CONCLUDE THAT 1 AT LEAST IN THE INLAND NORTHWES~ 

FORESTS OF WESTERN MONTANA AND NORTHERN IDAHO, THAT THE 

RESPONSIBLE ACTION OF CONGRESS IN PROVIDING FOR SOME RELIEF 

FROM A LITANY OF FRIVOLOUS APPEALS AND LITIG~TION HAS 

PROVIDED ADDITIONAL BASIS FOR IMPROVED FOREST MANAGEMENT 

THAT SHOWS SIGNS OF RESOUNDING SUCCESS AS WITNESSED BY: 

-INCREASED UTILIZATION OF VALUABLE RESOURCES 

-IMPROVED FOREST HEALTH 

-REDUCED THREAT OF CATASTROPHIC FIRES 

-SUBSTANTIAL FINANCIAL RETURN TO BOTH LOCAL AND U.S. 

GOVERNMENTS 

-SUBSTANTIAL INCREASE IN RAW MATERIALS DESPERATELY 

NEEDED BY FOREST DEPENDENT COMMUNITIES THAT WERE 

PROMISED A STABLE FLOW OF FEDERAL TIMBER 

-INCREASED EFFICIENCY AND MORALE AMONG FOREST SERVIC2 

PERSONNEL 

-ALL THE ABOVE WITHOUT A REDUCTION IN SENSITIVITY TO 

THE ENVIRONMENT. 
72 

OUR GOVERNOR OF MONTANA, MARC RACICOT, HAS CONCURRED 

WITH THIS ASSESSMENT AND HAS SUGGESTED THAT WE JOINTLY SEEK 

EVEN MORE OPPORTUNITIES TO "REVERSE BUREAUCRATIC IMPULSE AND 

SIMPLIFY, NOT COMPLICATE" THE QUEST FOR RESPONSIBLE 

MANAGEMENT AND PROGRAMS THAT CAN BETTER SATISFY NATIONAL 

INTRRESTS AND LOCAL NEEDS. 

ONCE AGAIN, THANK YOU FOR THIS OPPORTUNITY TO SHARE 

THESE OBSERVATIONS. 
73 

TESTIMONY OF MATT BENNETT 

BEFORE 

THE HOUSE RESOURCES COMMITTEE ON NATIONAL PARKS, 

FOREST AND LANDS 

JUNE 20, 1996 

Mr. Chairman and Members of the Subcommittee, my name is Matt Bennett and I am 

testifYing today on behalf of the Southern Timber Purchasers Council, and the Tennessee Forestry 

Association. The Southern Timber Purchasers Council is an affiliation of forestry companies across 

the South who have joined together to advocate, seek and promote federal policies which will 

provide access to Southern forest resources. The Tennessee Forestry Association is a 1000 plus 

member organization of landowners, forestry professionals, hardwood and softwood sawmills, 

furniture manufacturers, and pulp and paper producers dedicated to the proper use and conservation 

of our state's forestland. I am the incoming President of this organization. Thank you for this 

opportunity to testifY today regarding the Forest Service administrative appeals process. 

I. BACKGROUND 

To meet its legislative mandate of multiple-use and sustained yield on the land that it 

manages, the Forest Service uses a decision making process that includes (I) developing 

management plans for forest, and (2) reaching project-level decisions for implementing these plans. 

Project-level decisions might include such activities as timber harvest, livestock grazing, wildlife 

habitat management, and recreational development. 

In a good faith effort to increase public participation, the Forest Service implemented an 

administrative appeals process to provide recourse for disagreements over its management decisions 

(36 CFR Sec. 215 and 36 CFR Sec. 217). Further recourse is available through the federal courts 

by those seeking to delay, modifY, or stop a project they disagree with. 

It is the object of this testimony to show that the process, however well intended, has become 
74 

dysfunctional agency policy. This policy results in unnecessary delays, and costly expenditures of 

taxpayer dollars that could be more wisely spent by the Forest Service to achieve its multiple-use 

objectives. Plainly speaking, time and money the Forest Service spends on appeals and litigation 

is time and money not spent on trail maintenance, improving wildlife habitat, or protecting forest 

and rangeland health. 

In 1985, the Forest Service received 118 appeals against timber sales. This doubled in 1986, 

and by 1990, the Forest Service received 1154 appeals against 585 timber sales. Since 1990, this 

rate has dropped somewhat, but then the number of timber sales has dropped as well. 

It seems unlikely that the problem of excessive administrative appeals results from a lack of 

diligence on the part of the Forest Servic~. According to General Accounting Office testimony given 

before the Senate Subcommittee on Forest and Public Land Management, the "Forest Service 

estimates that it spends more than $250 million each year conducting environmental analyses and 

preparing about 20,000 environmental documents to support project-level decisions--consuming 

about 18 percent of the funds available to manage the National Forest System, and an estimated 30 

percent of its field units' staff resources. According to the Forest Service, it has conducted extensive, 

complies analyses in order to comply with NEPA and other environmental laws and to avoid or 

prevail against challenges to its compliance with these laws at the project level." (GAO testimony 

of Barry T. Hill, 1/25/96) 

This would seem to be born out by the relatively few times these appeals are successful. In 

most cases, the original Forest Service decision is confirmed. 

Unfortunately, some special interest groups regard administrative appeals as just the first 

rung on the ladder when it comes to stopping timber sales. According to the Region 8 Forest Service 

office in Atlanta, there has been a shift in tactics from appeals to litigation in Fiscal Year 1995. The 

Forest Service estimates that appeals have dropped by 1/3 while litigation has tripled. 

There no longer seems reason to doubt the misuse of the appeals process by some groups. 

The actions of these groups shows a clear pattern that I believe attempts to thwart the multiple-use 

objectives of the Forest Service. I doubt the administrative appeals process was ever intended to 

grant so much power to a minority of the public opposed to timber sales. And I do believe it is a 

minority. At the recent Seventh American Forest Congress, 91 percent of the delegates rejected the 

2 
75 

proposal calling for an end to logging on Forest Service land. 

However, unless the flaws in the appeals process are corrected, I predict the situation will 

only worsen. This May, the Sierra Club formally adopted a position to oppose all commercial timber 

harvest on National Forest. Administrative appeals and litigation are tools they intend to use to 

accomplish this. 

If this is allowed to happen, in the end the losers will be the thousands of small businesses 

and their workers who depend in whole or in part on Forest Service timber. The U.S. consumer will 

loose in the higher prices they must pay for fiber and wood products. And the taxpayer wi ll loose 

in the millions spent fi ghting appeals and litigation. Tax dollars that could be better spent 

improving and protecting the National Forest themselves. 

II. APPEALS AND LITIGATION 

As mentioned above, Forest Service decision making focuses on both long term 

management objectives through the forest planning process (10-15 years), and the shorter term 

project-level decisions. Both of these are subject to appeal and litigation. I would now like to offer 

specific examples of how time consuming and expensive this process has become. 

(I) Forest Plan Liti~ation--Cherokee National Forest 

As required by the National Forest Management Act of 1976. Forest Service personnel on 

the Cherokee National Forest (CNF) made extensive efforts to involve the public in decisions 

regarding the Forest Plan (the Plan) for the CNF. After seven years of work, the Plan was approved 

on March 1, 1986. However on March 29, 1986, the Plan was appealed. 

It is significant to note that the issues listed in the appeal, such as below cost timber sales, 

visual quality, and biodiversity were national policy disputes that extended beyond the scope of the 

forest planning process. The appeal attempted to force the Forest Service to resolve these issues. 

The appellants thought that if this could be done in their favor, then a precedent would be established 

for other Forest Plans. 

Herein lies a fundamental misuse of the process. Instead of using the appeals process to 

address local management disagreements, the CNF Plan was appealed to advance a national agenda 
76 

by special interest environmental groups. These groups attempted to by-pass the legislative process 

and affect change through agency or court ordered action. 

A partial settlement was reached in August of 1988, and the Plan moved forward with the 

settlement agreement in place. In the interim, the unresolved issues were reviewed and denied by 

the Chief of the Forest Service in December 1990. 

At the time, most of us thought that would end the matter, however after 18 months of no 

action, The Wilderness Society (TWS) decided to proceed with litigation on the remaining issues 

denied in the administrative appeal. Having failed to persuade the Forest Service, TWS decided to 

try and persuade the courts. 

Now, having already worked over 10 years on the Plan, the Tennessee Forestry Association 

had to go to court to ask for intervenor status in the pending legal battle. I am happy to report the 

litigation is finally over, although it has not been a short process. Ironically, work had already begun 

on the next ten year plan, before the present one was finally approved. 

At the District Court level, Judge Evans dismissed the suit on the grounds that the plaintiffs, 

TWS, lacked standing. TWS appealed the Judge Evans decision to the Eleventh Circuit Court of 

appeals. On May 22, 1996, ten years after the original appeal, the Eleventh Circuit affirmed the 

dismissal of the challenge to the CNF Plan. 

In the Eleventh Circuit's opinion, the environmental group's "claimed injury is not ripe for 

judicial review" because: (I) it is uncertain whether the Forest Plan will be implemented by a site 

specific action that injures plaintiffs, and (2) judicial review would be more manageable if it takes 

place in the context of a concrete timber sale, rather that at the abstract level of a Forest Plan. 

No one would disagree that TWS was within their right to appeal and subsequently litigate 

the Forest Plan. However, within the context of this testimony, it is relevant to ask how the appeals 

process might have adversely affected the operations of the CNF. 

It is possible to conclude that the appeals process may have significantly reduced the amount 

of timber for sale from the CNF. Anxious to avoid further litigation, CNF staff may have sought 

to lessen their chances by reducing the volume of timber offered for sale. 

In 1989, the CNF sold 36.2 MM bd. ft. (million board feet) of timber, however by 1995 the 

amount sold had fallen to 12.1 MM bd. ft. The CNF now harvest timber on less than I /2 of I 

4 
77 

percent of its available land base. 

The small businesses that deal with the CNF, owning little or no timber land of their own, 

have been able to make up most of the decline from private timber sources. However, this may 

prove to be a short term solution. Imagine the difficulty of operating a small sawmill when the 

largest landowner in your area, the Forest Service, is an unreliable supplier. Making long range 

decisions about the growth and operation of your business becomes a roll of the dice. 

There is also the question of new forest industry coming to the East Tennessee region. At 

last summer's 21st Century Jobs Initiative, forestry was selected as an industry that could provide 

new job opportunities in the region. However, in the course of the discussion, one CNF 

representative admitted that the uncertain timber supply form the National Forest was likely to 

discourage new forest industry from moving to East Tennessee. 

Some have observed that tourism might serve as a replacement for timber industry jobs. 

would only point out that tourism's average annual wage is approximately $9000, while forestry 

related jobs average about $17,000. 

Finally, how much did ten years of appeals and litigation cost taxpayers? If the Forest 

Service knows, they aren't telling. However, considering the thousands of man hours expended by 

the CNF staff while they prepared to defend their decisions, the cost must be substantial. 

Again, in view of competing needs, was money spent in litigation the best use of taxpayer dollars? 

I would argue, it was not. 

In the final analysis, only the special interest environmental groups stood to gain from the 

appeal, but in the end they lost too. However, the Court's opinion is unlikely to dissuade these 

groups from future litigation. 

(2) Project-Level Apoeals 

When looking at project-level appeals, two things quickly become evident. The majority 

are often brought by one appellant, and the majority apply to timber sales. This further supports our 

contention that the process is being misused by a few whose goal is to stop timber harvesting on the 

National Forest. Let me cite examples: 

5 
78 

• On the Daniel Boone National Forest in Kentucky, 17 timber sale appeals have been filed, 

13 (76 percent) by the environmental group Heartwood. 

t On the Chattahoochee National Forest in Georgia, 38 timber sales appeals have been filed, 

23 (60 percent) by the Sierra Club. 

• On the Ouchita National Forest in Arkansas, 57 timber sale appeals have been filed, 52 (91 

percent) by a single appellant. 

• On the Ozark National Forest, also in Arkansas, 40 timber sale appeals have been filed, 18 

by the same appellant who filed 52 appeals on the Ouchita. 

Project appeals may be successful tactics for delaying the proposed action, but they 

contribute little new insight into these actions. To date, of the above appeals that have been decided, 

the overwhelming majority were either dismissed or decided in favor of the Forest Service's original 

opinion. 

Unable to achieve significant redirection in Forest Service actions, i.e. stopping timber sales, 

there appears to be a shift from administrative appeals to litigation. Perhaps anticipating the Court's 

comments that judicial review would be more effective in the context of an actual timber sale, 

environmental groups have begun litigation against timber sales on both the Ozark and the 

Chattahoochee National Forest. We are concerned that the CNF will not be far behind. 

Probably due to the Forest Plan litigation and a lack of timber sales to appeal, there have 

been fewer timber sale appeals on the CNF. However, there are two sales where we feel litigation 

may be forthcoming. The Little Citico sale on the Tellico Ranger District has already been appealed 

twice, and the Bear Branch sale on the Nolichucky Ranger District, is a roadless area the TWS 

considers a "Tennessee Mountain Treasure". 

If the Chattahoochee and the Ozark are any indication, then the litigation will claim 

violations of three laws: the Clean Water Act (CWA), the Migratory Bird Treaty Act (MBTA), and 

the National Forest Management Act (NFMA). (See attached for more detailed discussion.) 

If the violation of the MBTA is upheld by the courts, this could well become the "spotted 

owl" issue of the South. Its impact would not be confined to Forest Service land, as private 

landowners would also be subject to the conditions of the Act. 

6 
79 

It would be difficult to overstate the importance of this to private landowners. sawmills, and 

loggers in the region should the Court rule harvesting must stop during the April to August nesting 

season. Logging is a weather dependent industry, and this time coincides with the period of peak 

production in the industry. It is also a time when the associated environmental impacts of logging 

are at a minimum for some sites. 

Ill. CONCLUSIONS 

We have a saying in Tennessee that, "if it ain't broke, don't fix it." Unfortunately, the Forest 

Service appeals process is broke and it does need fixing. I am not aware of any other government 

agency that goes through so torturous a process to arrive at a decision and spends so much money 

to get there. I don't believe the Forest Service ever intended to give so much power to so few. That 

has happened none the less, and now the process is dysfunctional and subject to misuse by groups 

seeking to stop timber sales. The end result is an uncertain future for forest dependent small 

businesses, and taxpayer dollars wasted on litigation that could be spent to ensure a healthy, more 

productive forest for future generations. 

How can we "fix" the Forest Service appeals process? I would like to reiterate some of the 

suggestions l have heard over the course of my preparation for this testimony. 

(I) Examine and resolve conflicting requirements of the various laws that guide Forest 

Service policy. 

(2) Examine and reconcile multi-agency responsibility for the enforcement of environmental 

laws. For example, the Forest Service must deal with EPA, U.S. Fish and Wildlife, National Marine 

Fisheries Service, and the Army Corp of Engineers on different environmental laws. These agencies 

sometimes disagree among themselves over the interpretation of the law. 

(3) Limit appeals to those who have participated in the decision making process. 

( 4) Limit appeals to forest specific issues. Don't allow appeals filed to address national 

issues, and apply more to Jaws such as NFMA act, than to Forest Plans or projects. 

(5) End frivolous appeals and litigation by requiring appellants to post a bond. 

(6) Require the Forest Service to make a full and detailed cost accounting of the taxpayer 

7 
80 

dollars spent on appeals and litigation, and disclose this information to Congress and the public on 

an annual basis. 

Mr. Chairman, this concludes my statement. I would be happy to respond to any questions 

that you or Members of the Subcommittee may have. 

8 
81 

Junell.Im . 

INFORMATIONAL UPDATE 

Sierra Club Litigation filed in Georgia alleging violations of Clean Water 

Act, Migratory Bird Treaty Act and National Forest Management Act 

On April17, 1996, the Sierra Club filed a lawsuit against the Chattahooche 

National Forest timber sales. The suit was filed in the U.S. District Court for the 

Northern District of Georgia, Atlanta Division. The plaintiffs, in addition to the Sierra 

Club are: The Wilderness Society, Georgia Forestwatch, The Armuchee Alliance, the 

Rabun County Coalition to Save the Forest, and Friends of Georgia. The Defendants 

are George Martin, Forest Supervisor of the Chattahoochee National Forest and Robert 

Joslin, Regional Forester. Seven timber sales are involved, four with active contracts. 

The Sierra Club Clajms: 

The lawsuit claims three major violations of law. The alleged violations of Clean 

Water Act and Migratory Bird Treaty Act could potentially affect all lands (public and 

private) as well as other activities such as development, farming, etc. The claims are: 

(1) Clean Water Act: Sierra Club claims that the construction of logging 

roads without a National Pollutant Discharge Elimination System 

(NPDES) violates the Clean Water Act. An NPDES permit enables a 

person to obtain a permit to discharge a "pollutant" from a "point source". 

Sierra Club claims "the logging roads, streams crossings, yarding areas, 

spoil piles and other related grading and construction projects allowed 

under the projects which are the subject of this suit result in the discharge 

of sediment to rivers and streams. • 

(2) Migratory Bird Treaty Act: Sierra Club claims that the Forest 

Service's approval of the timber sales violates the Migratory Bird Treat 

Act of 1918 (MBTA). The Sierra Club further states that the harvesting of 

trees any time during the April to August nesting season for neotropical 

migratory birds should be stopped as an MBTA violation, because nests 

will be disturbed and migratory birds will die. 

(3) National Forest Management Act: The Sierra Club claims that it is 

the Forest Service duty to keep current population trend data concerning 

all "sensitive species." 
82 

The Temporary Restraining Order Hearing 

On April 18, 1996, the Court had expected to hold a hearing for the Sierra Club's 

request for a Temporary Restraining Order, which the Sierra Club stated was 

"necessary to prevent unlawful agency action, forestall irrevocable injury to the 

environment and preserve the status quo in order to enable a meaningful decision on 

the merits .. .". 

The Southern Timber Purchasers Council and the American Forest & Paper 

Association worked with the four timber purchasers to gain a voluntary 20 day 

suspension of operations which commenced on the close of business on April 19, 1996 

through and including May 9, 1996. This action avoided the need for a Temporary 

Restraining Order. 

The Council's Intervention Reqyest 

The Southern Timber Purchasers Council and the four timber purchasers filed a 

request for intervention on April 26, 1996. 

The Preliminary Injunction Hearing 

A Preliminary Injunction hearing, was held on May 1, 1996. On May 9, the 

Judge issued a preliminary injunction which extends through September 15, 1996. 

Summary of the Southern Timber Purchasers Council's Brief Arguing Against the 

Sierra Club's Claims 

(1) Clean Water Act: The Sierra Club's CWA claim fails on the merits 

because the timber harvesting activities at issue are exempt from the 

NPDES permit requirement. Normal silvicultural activities such as road 

construction constitute "nonpoint sources." As such, they do not require 

NPDES permits because the permit requirement applies only to 

discharges from point sources. 

Regulation under the Environmental Protection Agency (EPA) states that 

forestry and silvicultural activities are nonpoint sources and are in the 

permit-exempt category. In fact, EPA has reiterated several times that 

forest roads are nonpoint sources. Regulation expressly exempts most 

silvicultural activities, including roads: "The term silvicultural point source 

does not include non-point source silvicultural activities such as nursery 

operations, site preparations, reforestation and subsequent cultural 

treatment, thinning, prescribed burning, pest and fire control, harvesting 

operations, surface drainage, or road construction and maintenance from 

which there is natural runoff. ... " 

2 
83 

Under EPA regulation "only discharges from four activities related to 

silvicultural enterprises (rock cursing, gravel washing, log sorting and log 

storage facilities) are considered point sources .... subject to NPDES 

permitting requirements.· 

(2) Migratory Bird Treaty Act (MBTA): The Sierra Club alleges that 

the Forest Service's approval of the challenged timber sales violates the 

MBTA. The Council's brief stated that "The Court should recognize that 

acceptance of this grandiose theory would virtually halt timber harvesting 

over a large proportion of the forested United States, and would subject 

other innocent landowners to the threat of criminal prosecution or 

injunctions against ordinary land use." 

Virtually all birds in the U.S. are covered by international treaties and the 

MBTA. If the MBTA allows an injunction against a land use or habitat 

modification that would injure a single migratory bird or nest, the MBTA 

would significantly constrain land uses nationwide. 

The MBTA., like all statutes, should be interpreted to avoid such absurd 

or odd results. The Court should not so expand the MBTA without a 

strong showing that Congress recognized and intended that the MBT A 

impair Fifth Amendment property rights on such an extraordinarily broad 

scale. This legislative intent cannot be discerned in the limited MBTA 

statute enacted in 1918, when Congress's intent was to stop poaching. 

(3) National Forest Management Act (NFMA): The Sierra Club's claim 

that the Forest Service must keep current population trend data on all 

"sensitive species" is not enforceable. Neither the NFMA nor its 

implementing regulations explicitly require information on all "sensitive 

species." The Forest Service is only regulated to conduct appropriate 

inventorying of resources during the process of preparing a forest plan 

and the regulations leave the decision on the appropriate level of such 

inventorying to the agency. 

Instead of requiring information on each of the thousands of species in a 

given national forest or on all "sensitive species", the Forest Service 

selects a "management Indicator Species" .... a smaller group of species 

used to "indicate the effects of management activities" on certain habitats. 

It would be prohibitively expensive to repetitively survey each of the 

749,000 acres in the Chattahoochee National Forest to obtain accurate 

population counts and population trend information for dozens of 

"sensitive species." The Court should be sensitive to the separation of 

powers issues in demanding a level of information on "sensitive species" 

that exceeds the legislative appropriation. 

3 
84 

STATEMENT FOR THE RECORD 

BY 

JAMES L. MATSON 

PRESIDENT 

VERMILLION SERVlCES 

BEFORE THE 

SUBCOMMITTEE ON NATIONAL PARKS, 

FOREST AND LANDS 

OF THE 

UNTITED STATES HOUSE OF REPRESENTATIVES 

JUNE 20, 1996 
85 

My name is Jim Matson. lam President of Vermillion Services, which is an economic 

development and natural resources consulting firm headquartered in Kanab, Utah. My 

clients are the communities of Fredonia, Arizona, Kanab, Utah, and Kane County, Utah. 

These two communities and Kane County are continually affected by federally 

administered public lands and the policies of the BLM, Forest Service, and Park Service. 

l would prefer to report to you that these affects were mostly benign or beneficial, but 

they are not. 

Leading a list of adverse impacts on our communities are the Department of Agriculture, 

Forest Service administrative appeals procedures. Appeals have provided the opponents 

of human managed forests the means to breach a forestry system which until recently was 

of significant value to the American people and public forest lands. People in the 

communities that I represent have suffered greatly because of administrative appeals. 

Kaibab Forest Products Company, formally the areas largest employer of people and their 

500 families was forced out of business by the constant barrage of administrative 

appeals, companion lawsuits and the acquiescence of the Forest Service. Administrative 

appeals continues to be the thin edge of the wedge utilized for purposes of paralyzing 

public forest lands enhancements and investments. 
86 

Our democratic system of governance usually reacts slowly to correcting excesses 

enjoyed by a few at the expense and detriment to the majority. Clearly the current and 

existing appeals procedures are excessive and have benefited a very vocal and aggressive 

minority in our society. The fact is, Forrest Service appeals rules are little more than a 

governmental give-a-way program. These give-a-ways allow a very small number, who 

care little for rural human communities much less a forest a free ticket to dismantle 

months of work and effort. Just grab the appeals rules and let it fly. The Forest Service 

usually just caves in, and the plan or projects are delayed, changed or canceled. Losses 

accrue to us all by allowing appeals to be one sided favoring eco- activists while the rest 

of have both arms tied off 

The magnitude of laws, rules, guidelines and procedures that project designers must 

navigate to implement a successful forest plan or associated project are simply 

overwhelming. An administrative appeal that stops a program has exploited the soft 

belly of Forest Service requirements, procedures and internal politics. I have noted and 

been involved with lousy projects, that were relatively challenge proof because process 

steps were adequate. On the other hand I have reviewed projects that were well 

conceived for benefiting forest resources, but were procedurally flawed and subsequently 

dropped. The point is procedurally correct or incorrectly implemented plans and projects 

are time consuming and costly. We are bearing these costs directly and indirectly 

throughout, but the heaviest impacts are falling on communities like Orderville, Utah and 

Fredonia, Arizona. 
87 

As a side bar after administrative appeals contributed to the closing of the mill in 

Fredonia, Arizona and a subsequent announcement of the closing of the Panguitch, Utah 

mill, the Dixie National Forest Supervisor on May 6, 1996 announced that the Forest 

Service is seeking new purchasers to assist with vegetation management. What I ask, 

was wrong with ones that were available? A friend wrote me from the Black Hills about 

the announcement and said "Oh- if you 're looking for a partner to build a mill and take 

advantage of this wonderful Forest Service opportunity- please DON'T call~'' Trust in 

the situation is totally lacking. A company and their bankers would have to commit to 

invest eight to ten million dollars to meet the needs of the Dixie Forests challenge. 

Would you invest your savings to help the government out with the specter of running out 

of a raw material, while that material either rots or bums up in the woods under 

administrative appeal? 

l would also like to point out that the closing of these two mills resulted in the local area 

loosing the only entity capable of handling the volumes of material that will have to be 

harvested to handle the current spruce bark beetle infestations on the Dixie National 

Forest. The alternative is to have taxpayer to foot the bill and expense in order to stay up 

with the disease, insect killed and fire destroyed trees and ecosystems. The two Kaibab 

Forest Products Company mills could have processed a log mix of diameters ranging 

from six(6) inches in diameter to twenty-five(25) inches. These mills were designed to 

handle a blend of log sizes of 88% six(6) inch through sixteen( 16) inches and 12% 

seventeen( 17) inches and greater. 
88 

Preservationists bait and switch tactics evolved a strategy of goading the Forest Service 

about below cost timber sales by delaying and stop planned programs. Eventually it 

became impossible for the Forest Service to meet its goals and budget objectives. Before 

long the media and others were clamoring for answers as to why costs were higher than 

revenues. The leading reason for the higher cost is administrative appeals and the 

resulting delays. I've mused from time to time, asking if this is the case and Forest 

Service costs are increasing due to its own appeals rules then was there not an incentive 

to remedy the problem? Evidently not 1 

RECOMMENDATIONS: 

The following recommendations are offered as basis for considering legislation or for 

directing the Department of Agriculture to strengthen the administrative appeals 

program. 

I. Take the free out of the appeals process, if the appellant looses, they pay. At time of 

filing an administrative appeal that appeal would proceed under an agreement that 

stipulates that if the appeal is turned down and or litigation is unsuccessful, 

restitution be made. 

2. Emergency programs after being certified as an emergency would be limited to an 

accelerated administrative appeal process that requires a deciding officers final 

decision within 15 working days. 
89 

3. Intervention by affected parties to an administrative appeal be allowed and a 

intervener be made a party to any settlement process of an appeal after standing is 

established. 

4. Shorten and fast track the administration appeals to not to exceed 30 working days 

after an appeal is filed. Notice of an appeal received by the Forest Supervisor be 

made to affected parties who have noticed the Forest Service of their interest in the 

appeals process. 

5. Require that state agencies appealing a particular decision of the Forest Service 

secure an approval of the governor of that state. 

6. Statements of reasons in an appeal be limited to actual facts, personal opinions and 

peer reviewed biological and physical sciences. 

7. All appeals should have one level of re> iew by a designated Forest Officer above the 

level of the Officer whose decision is being appealed. The reviewing officers 

decision is to be will be final and due within the 30 working day appeal period. 

This concludes my remarks. 

Thank you for the opportunity to comment for the record on the Forest Services 

administrative appeals procedures. 
·

UnltK 

-

States 

Oepartlllenl of 

AgrlouMure 

Forest 

Service 

90 

Dtxle 

N&tlonal Forest 

82 North 100 East 

P.O. Box 580 

Cedar City, UT 84n1·0580 

File Code: 2430 

Date: May 6, 1 996 

TO PURCHASEI'lS OF NATIONAL FOREST TIMBER SALES: 

The Dixie, Fishlaka and Manti-LaSal National Forests and the Nonh Kaibab Ranger District ol the Kaibab 

NatiOnal Forest are seeking add~ional timber purchasers to assist w~h vege1ation management projects in 

tha southem Utah/nonhem Arizona area. Since t 993, these Forests have lost more t/lan 40 million board feet 

o1 sawmill c:apacily due to lOcal mill closures. 

The Foresl$ are experiencing differing vegetation management needs. but all require the use of commercial 

timber saleS to accompliSh desired resource objectives. The Dixie and Manti-LaSal Forests are experiencing 

hea.y OU!tlreaks of bark beetles in old-growth spruce ano scattered ponderosa pine stands. Salvage sales 

on tnese Forests am designed to remove beetle broods from the forest and make wood prooucts available 

to indusuy. lhe Fishlake Na!Jonal Fore5t has thoosands of acres of aspen standS needing regeneration. The 

North Kaibab Ranger District has some of lha most magnific8nt stands of ponderosa pine io the Nation. and 

they need thiming to promote improved Northem goshawk habitat. 

COllectively. the lour Fo'est Service un~s are scl'>eduled to offer more than 63 million board feet ol sawtimber 

in the remainder of calen<lar yeill 1996. At the current time we are concerned a significant portion of lhis 

lo'Ok.lme could remain unsold. For !his reason. w11 are reaChing beyono our nistoric marker area boundaries 

10 locale addillcnal purchasers fot our timber sales. We have asked Nalional Forests ~hin 500 miles of our 

oo-ing area to supply us with mailing lists (Q( their limber sale bidders, and that is hoW we rteeive<l your 

name tor this mailing. 

lhe volume of timber sales on !he four National Forest unitS along with contacts for information for the 

remainder of calendar year 1996 are as follOws: 

Forest Servi!l,e Unrt Sale Offerings Forest SBA Unit Conract 

4/1196 • 12131/96 (MMb!l Percentage ~ 

~ Green Total 

Dixie NF 15.0 9.7 24.1 33% Barry Johnson 

(Cedar Clty,.J.JT) (801) 865-3725 

Fishlakl NF 1.0 1.8 2.8 SO'!' Ron Sanden 

(Ric:hlield, UlJ (801) 896-9.233 

Manti-USaf NF 9.5 .6 10.1 80% Glen Jackson 

(Prlct, U1) (802) 637 ·2817 

North Kaibab AD 25.7 25.7 0% Scon Nannenga 

(Fredonia, ~ (520) 643-7395 

Totals: 25.5 37.8 63.3 
91 

-2-

We would be pleasea ro ada your name to our bidders ijsts_ To receive aaverusemems lor :.moer sales in 

our area. please nolify tile conract person listed above for the unils you OQSire_ We w111 also be pleaseo ro 

diScuss program or project spedfiel wirtl you ar any rime_ Again. please notify the contact person lisreo abOVe 

regarding Questions or the nHd for additional inlormalion. 

Thank you for taking rne rime to review this summary of our National Forest timber sale program in the 

soutnem Utilll/nonnem Arizona area. 

Sincerely. 

I HUGH c_ THOMPSON 

~ Forest Supervisor 

/, 
25 

% 

20 

0 

F 1 5 

1 0 

L 

0 

G 5 

s 

0 

6-7 

KAIBAB FOREST PRODUCTS COMPANY 

LOG DISTRIBUTION - FREDONIA AND PANGUITCH SAWMILLS 

FISCAL YEAR 1990 

Mean SED = 11.5" 

8-9 10-11 12-13 14-16 17-20 21-24 

SMALL END DIAMETER CLASS 

c.c 

25+ 
93 

Testimony 

House Resources Committee 

Subcommittee on National Parks, Forests and Lands 

Thursday, June 20, 1996, !O:OOam 

Nadine Bailey 

Executive Assistant 

Michigan Wisconsin Timber Producers Association 

P.O. Box 1278 

Rhinelander, WI 54501 

Members of the committee, Thank you for allowing me to testify before you 

today. This is an issue that has affected me on a very personal level. I now serve as 

the Executive Assistant to the Timber Producers of Michigan and Wisconsin. I 

have been in this position since October of 1995. However, before moving to 

Wisconsin my family and I lived in the small Northern California town of 

Hayfork. 

In 1990, a federal judge upheld an appeal brought by the Seattle Audubon against 

the US Forest Service. The judge place an injunction against any further timber 

harvest until a habitat management plan for the Northern Spotted Owl was 

completed. At that time my husband and I had a small timber falling business that 

employed approximately fifteen people. Because the federal government owns 

approximately eighty percent of the land in Trinity County, we were unable to 

continue operating our business. By the end of 1993 we were forced to close that 

business losing everything that it had taken us a lifetime to build. Our story is not 

unique. Unemployment in Trinity County and other forest dependant communities 

has skyrocketed. Some California school districts still have as many as ninety-five 

percent of the children on free and reduced lunches because they are living at or 

below poverty level. As the situation worsened, my family and I were forced to 

leave the area. This spring, the last remaining forest employer in Hayfork, the 

SierraPacific mill, closed it doors. 

Although this is outside the basic question you asked me to address, I believe it is 

important for this committee to understand my fru stration. Never once during the 

appeal process did anyone stop to consider the economic impacts of the appeal 

prucedure, or attempt to take public comment from the people being impacted. At 

26-518 96-4 
94 

the same time, many sales outside of the appeal process were also changed 

without public comment to address issues that might be included in future 

litigation. Sales that should have been sold were delayed and reviewed to insure 

that they would not be appealed. This attempt by the Forest Service to "appeal 

proof' all of their existing sales caused the cost of timber sale preparation to rise, 

and caused the future timber sale program to be decreased. This created the 

massive gridlock that continues today. 

This type of gridlock is not just a western phenomenon. In the Lake States region 

there are also increasing examples of the misuse of the appeal process. In 1993, a 

small environmental group in Michigan appealed the West Hyde II Vegetation 

Management Plan. They maintained that the Forest Service had done an 

inadequate job on the environmental impacts of the plan. The plan was upheld by 

the forest supervisor. The timber sales were sold to Nagle Lumber, a small family 

owned company. Hoping to reduce some of the plaintiffs concerns about the plan, 

the Forest Service went back to the purchaser, Nagle Lumber, and asked them if 

they would be willing to delay harvest on the sale for one year so that a more indepth study could be completed. Nagle Lumber agreed, and the Forest Service 

completed a full revision of the environmental assessment in addition to a 

biological evaluation on issues involved in the complaint. Satisfied that they had 

met federal mandates the Forest Service made plans to continue with the 

vegetation management plan. On May 31, 1996 the plaintiff of the original appeal 

resubmitted the appeal alleging the same charges in the first appeal, an appeal 

already overruled by the forest supervisors office. 

This is just one small example of how the Forest Service through its appeal 

process, is being force out of timber sale preparation and into a litigation defense. 

This approach to fore st management has already proven to be a disastrous to both 

the Forest Service and forest dependant communities. 

I want to assure the members of this committee that it is not our intention or desire 

to circumvent public process or cause harm to any eco-system, but there has to be 

some reason brought back to the appeal process. The present process demeans the 

land manager and forces undo stress on the rural communities that are adjacent to 

our national forests. The present timber sale appeals process also costs the 

American tax payer money, as the Forest Service is forced to answer questions 

that have already been addressed . 
95 

In I 993, I was a speaker, on the first round table, at the Forest Summit convened 

by President Clinton. At that summit, President Clinton likened the federal 

regulations that governed forest management to a wagon with a team of horses 

hooked to both ends. He promised that his administration would be committed to 

ending that gridlock. The fact that I now live in Rhinelander, Wisconsin and not 

my native California, is proof that he has not been successful. I urge this 

committee to make the needed changes to the conflicting laws that govern 

resource management in this country. Thank you for your time. 
96 

IN THE SUBCOMMITTEE ON NATIONAL PARKS, 

FORESTS AND LANDS 

U.S. HOUSE OF REPRESENTATIVES 

CONCERNING PROBLEMS WITH THE APPEALS PROCESS 

TESTIMONY OF ALASKA FOREST ASSOCIATION 

Jack E. Phelps, Executive Director 

Offered June 20, 1996 

Mr. Chairman: 

My name is Jack Phelps. Thank you for the opportunity to address you today. I am the 

Executive Direcior of the Alaska Forest Association (AFA). The Association was established in 

1957, and represents the forest products industry in Alaska, including more than 250 regular and 

associate member companies statewide. 

Let me begin my testimony today by pointing out that the timber industry in Alaska is 

starving in the midst of plenty. Although we operate on the largest national forest in the country, 

which includes more than five million acres of productive old growth, we are unable to harvest 

enough timber to meet the needs of our modest domestic processing capacity. Since the Tongass 

Timber Reform Act passed Congress in 1990, more than 42% of our direct timber industry jobs have 

been lost. 

Ketchikan, the town in which I live, recently lost another independent mill, putting 35 people 

out of work. That may not sound like a lot of jobs to you, but in a town the size of Ketchikan, those 

losses will be felt. In any case, they were important to the families they used to support. 

My message to you today is that the Forest Service cannot supply enough timber to our mills, 

not because they lack sufficient standing timber to sell, but because the process through which they 

must defend every sale is seriously flawed. The National Environmental Policy Act (NEPA), though 

designed with good intentions, is not working to protect the environment so much as it is working 

to impede America's economy and to interfere with the lives of the resource industry workers upon 

whom so much in this country depends. 

I bring before you one example: 

There is an island in Southeast Alaska called Kuiu. It is located northwest of Ketchikan, and 

southwest of Juneau. In the mid-sixties, some logging took place from along the beaches of east 

Kuiu Island at a place called No Name Bay. although no roads were built. In I OT', preliminary sale 
97 

planning for timber harvest on east Kuiu began in connection with the Alaska Pulp Company's long 

term contract. 

In March 1979, the Tongass Land Management Plan was adopted and it designated the No 

Name Bay region as Land Use Designation IV, meaning that it was available for timber harvest. 

Consequently, in April 1980, the Forest Service issued an Environment Impact Statement which 

identified No Name Bay for extensive timber harvest activity. At the same time, the Alaska National 

Interest Lands Conservation Act (ANILCA) created wilderness areas on west and north Chichagof 

Island, greatly increasing the importance to the industry of the east Kuiu LUD IV designation. 

By 1986, however, there had been no harvest in the area, and the Forest Service was required 

to produce a second EIS for east Kuiu. It also found the area suitable for harvest with little 

environmental effect, and again approved extensive harvest in the No Name Bay area. 

On each of these EISs, an environmentalist group filed appeals and, failing to achieve 

satisfaction, filed suit. The Circuit Court ordered a supplemental ElS, which was concluded and 

signed in 1987. This was now the third EIS prepared for the same site. It, too, was appealed and 

litigated. 

In May of 1989, the state of Alaska, exercising its land selection rights under the Alaska 

Statehood Act, selected 3400 acres around No Name Bay for eventual conveyance to the state, thus 

further complicating the appeals process under NEPA. The state selection controls access to the 

planned site of the Log Transfer Facility. In October of the same year, the Forest Service tiled with 

the state a request for road reservations in the No Name Bay sale area. The actual harvest units 

within the selection were considered a prior existing right, and were still slated for harvest. 

In 1990, Congress placed 35,000 acres of Kuiu Island into a new wilderness area, 

immediately to the south of the 66,000 acre TebenkofBay Wilderness Area (TBWA) which lies due 

west of No Name Bay. The TBWA was created by ANILCA. 

In 1993, the Forest Service issued the flmrt!! EIS on the east Kuiu harvest area, the North 

and East Kuiu Environmental Impact Statement. It was appealed and litigated. Furthermore, all 

efforts by the Forest Service to get concurrence from the state on planned actions affecting its 

interests were also appealed. Meanwhile, the state was getting pressure from environmental groups 

to change the intended purpose of the No Name Bay state selection from " remote settlement," the 

state's given reason for the selection under the Forest Service Community Grant program (FSCG). 

to "wildlife habitat. " It should be noted that ''wildlife habitat" would not have been a legally 

acceptable reason for a state selection under the FSCG guidelines which have been upheld by the 

United States Supreme Court. 

During neg~ions on the state's Mental Health Land Trust Settlement case, the 

environmentalists succeeded in their quest, and No Name Bay was given a tentative reclassification 

for "wildlife habitat." This resulted in the state dropping the priority for conveyance of this selection 

from a priority A to priority C. Given the ratio of allowable overselections and the number of 

2 
98 

conveyances remaining under FSCG, it is now highly likely that No Name Bay will never be 

conveyed to the state and will remain under the jurisdiction of the Forest Service. Thus, due to 

appeals and litigation, the United States Government is being defrauded out of significant revenues 

at No Name Bay. 

In April of 1994, Alaska Pulp Company's long term contract was terminated, puttmg 450 

people out of work at the Sitka pulp mill and eventually causing the closure of the company's 

sawmill in Wrangell at the cost of another 250 direct jobs. The Forest Service then attempted to 

transfer the planned sales on east Kuiu to the remaining long term contract with Ketchikan Pulp 

Company which, due to appeals on its sales, was also running short of timber. 

The Alaska Wilderness Recreation and Tourism Association (A WRTA), a local 

environmentalist group, appealed, then filed suit, alleging the need for yet another EIS since the 

timber was not reviewed for sale to this particular buyer. The Superior Court found in favor of the 

government, but A WRTA appealed to the Ninth Circuit and obtained an injunction against 282 

million board feet ofNEPA cleared timber, including a proposed sale at No Name Bay. 

At first, the Forest Service vigorously defended its position, filing an excellent response brief 

on December 22, 1995. Eari.Y this year, however, the Clinton Administration's Justice Department 

entered into negotiations with the plaintiff (excluding intervenor-defendant Alaska Forest 

Association) and produced a settlement agreement which strongly favored plaintiff. Eventually, the 

court approved the settlement agreement and ordered a fi.!l!! EISon east Kuiu. 

The result is that, after nearly twenty years of planning and producing paperwork by the ton, 

the Forest Service has yet to produce a single stick of wood or support a single private sector job 

from the significant stands of timber on east Kuiu Island. Sales that were laid out in I 979 are still 

awaiting harvest. Please remember that this is land that was purposely left in the timber base by 

Congress in 1990 when the Tongass Timber Reform Act was passed into law. Four Environmental 

Impact Statements have been performed, now a fifth has been ordered. 

What we have, under the current system, is not environmental protection, but a never-ending 

process. The laudable goals ofNEPA simply are not reachable under the current law. The problem 

is NEPA itself. UnderNEPA we never get product, we only get lots of process. It becomes a neverending planning cycle. 

A big part of the problem is that no justification for any action will ever satisfY the law 

because Jl.Dl::ll!l.!: can allege possession of new information or a significant impact on some protected 

activity such as subsistence, thus forcing a new EIS. The east Kuiu example illustrates how this can 

undermine every attempt by the agency to do its job. l have had Forest Service employees tell me 

in frustration that they cannot write an EIS that will satisfY court scrutiny. The law is simply too 

open ended. 

As a result, NEPA documents have completely lost their usefulness as planning documents. 

Instead they have become a means for the Forest Service to pad the record so that they have some 
99 

hope of prevailing in court when (not if) a lawsuit is fil ed against the proposed action. This is not 

right and it is not good. We need environmental laws that protect the environment, not laws that 

simply gum up the works and impede progress at great expense to the agencies, deprive the Treasury 

of needed revenue, and cost hard working Americans their jobs. 

In summary, Mr. Chairman, if you want to repair the appeals process, you must amend 

NEPA. It must be rewritten so that it becomes a tool to protect the environment, not a club to 

prevent actiOn. 

Thank you very much. 

4 
Cttgg Cook ,-,,,..,~ ~~ ... NC 

Shitley C1i1p 

St..:;:(Hh , N( 

Cli,e G.Hdl'ltr 

M.orlOf!. NC 

Fted Hatdif'l 

fiuti>trlo-dton. N( 

Kpi1 h Ht•ma, 

h~ '"C 

ll,,,dv McKinney 

"t!lo dft NC 

/Ohf'l MetCIC't 

llt~bbi111~;11• . NC 

Parton 

. _,-..rfotdfon. NC 

Ca!l 8. Powell. Jr 

w~,...,~ ~m . NC 

/.T. Po-tU. Ill 

CJ .. IO ... N( 

J,unei SittS 

(Jid folf. N C 

Thomas E. S!an l«y 5~1·~ ,.., 

O.de Thr3Sil 

('~r.o1 Fr. N( 

MarkWist-muo 

CAIWO'>. N( 

ari'!~ 0 . Woodard lA IN:IJf<>~<'0i' ft:l0' 

"~'"~ NC 

Sl.:u::y Howell 

~f"':·tlt~l'f 

8rymf! Cily, NC 

100 

THE MULTIPLE-USE COUNCil 

·fOREST MANAGEMENT 

June 19, 1996 

Comments of Steve Henson, Executive Director of the Southern 

Appalachian Multiple-Use Council, regarding U.S. Forest Service 

Administrative Appeals Process. 

Submitted to U.S. House of Representatives Subcommittee on National Parks, Forests and Lands. 

The Southern A~palac~ an Multiple Use Coun c il is a nonprofi~ 

organization committed to promot i ng the principles of multip l e use on public lands as defined by the MULTIPLE-US~ SUSTAINED 

XIELD ACT OF 1960, that all forest lands should be managed for 

the multiple uses of sustained yield harvest, fish and wildlife 

habit at, rangelands and recreation. We actively participate 1 n the decision making processes on National Forest Lands in the 

Southern Appalachian region to promote these concepts. 

Our organization recognizes the importance of public 

participation in decision making processes associated with 

National Forests in our a rea and across the Nation. However, we also recognize that this participation has been abused by 

organizations and individuals with radical environmental agendas 

who wish to stop all timber harvesting on pub l ic lands. These 

abuses have created an env iron~ent which is counter productive 

for the wise managemen t of our valuable natural resources on these lands. For this reason , our organization supports the 

significant restructuring or elimination of the administrati ve appeals process after a project decision i3 rendered. 

The current appeals process has no ne gative consequences for 

those abusing the process with frivolous appeals; therefore, 

making it attractive for some to appeal any activity they deem 

obj e ctionable to their private agendas. These supe~fluous 

appeals are used to punish deci3ion makers through expenditure of 

time and monies to further justifY and document decisions. It is 

our opinion that sufficient opportunity exists to address project concerns prior to decisions under the current NEPA process. When a decision is rendered it should be accepted by participants in 

the process . In the event some organization or individual is not satisfied with the decision, they have the opportunity to pursue 

it through the courts system. We feel a public participation 

process structured in this manner will create a. situation where any objections will be of some reasonable nature requiring 

appellant's expenditure of time and monies and place the burden 

of proof where it belongs. 
101 

U~I 19 ' 96 13 : 26 MULT I PLE -USE COU>IC I L 095 P83 

rn ~h~ Southern Appalaoh i ane, the ~ppcal3 pro e~~ a~ been 

grossly abuseo anO is nav1ng a nRg~~~v~ eff9ct on needed 

management practices to maintalu uc · improve our public lands for 

multiple use purposes. Very few of the many pro j ect appeal~ i n uur area have revealea any aocumP.nt.P.<i negat.ive consequences on the environment or any species c·equ.i.c·iug ~pe 1al attention. AS a m~ttP.r of fact, most of these project level ~ppcal~ concentrate uu !JC' UCt;:>S technlcalltles rather than neg>~t. •Ee P.nv1ronmental 

impacto. 'I'hi3 3trongly sugge3ts to us that t~ppdlanLs real1ze 

t.hey hav~ little or no valid environmental ooncernz relating to 

pcojt:<.:l lwplementatlon. 

We arP. gl:~<i t.o "'e~ the SubcolUII!it t ee taking a serioue look ~t the 

admiu.bln:tll ve appeals process ana 1t 's obvious flaws. Wh i I e we support public participation in decision making pc·ocesses ou 

public lann~, WP. ~~~ opposed to a flawed appeals process allowing 

the ~ystem to b~ ~~u:>~u. We strongly urge the Subcommittee to 

significantly reetructurc or eliminate the administrative appeals 

process. 

If you have any qucetiono or commcn t a, plea3e feel fre e to 

contact me ~Y ph nn ~ >~t 104-45?-971? or by mail at 154U S . Main ~t., Waynesville, NC, 2G70u. 

Thanks ror your tlme ano consideration. 
102 

' _£-c-

~tt · The Ruffed Grouse Society ~J \~ DEDIC.\ TED TO I\1PROV I:-;G THE :-;\ IRO~~IE :-;T _ FOR ~L FFED GROL:SE. WOODCOCK. 

A\D OTH ER FOREST WILDLiFE 

P.O. Box 2 • R1ce LJke. WI 5-1 868 

J7 I5J 23-1-8302 • Flx !7 I5 ) 23-1 -505 1 

Statement of 

Daniel R. Dessecker 

Forest Wildlife Biologist 

regarding 

U.S. Forest Service ~dministrative Appeals Process 

Provided to 

U.S. House of Representatives 

Subcommittee on Nat ional Parks, Forests and Lands 

12 June 1996 

The Ruffed Grouse Society, established in 1961, is a nonprofit wildlife 

conservation organization dedicated to promoting forest resource stewardship. As the Forest Wildlife Biologist for the Society I work 

closely with the staff of approximately 30 National Forests in 24 states 

to further mutually-agreeable initiatives. In addition, my 

responsibilities require that I interact on a regular basis with personnel 

at the Regional Office and Washington Office levels. 

The Ruffed Grouse Society recommends that public input remain an integral 

component of that portion of the Forest Service's decisionmaking process 

where project alternatives are initially prepared and considered for 

implementation. However, once a project alternative has been selected 

using public input, tempered by professional analysis, interested publics 

~ 

should respect and accept these decisions. Therefore, the process whereby ~ utilize administrative ~ to halt Forest- or project-level decisions should be eliminated. 

The appeals process as outlined in the National Forest ManagB~nt Act is 

fundamentally flawed in that it is based on the assumption that 

potentially negative consequences emanate only from active management. 

The appeals process largely fails to provide recourse to address the 

deleterious effects that can be byproducts of a failure to implement 

management activities. In addition, the inherent complexity of forest 

ecology renders it possible to appeal any decision based on the fact that 

any decision, including a no-action decision, will benefit certain forest 

resources while harming others. This situation literally invites appeals. 
103 

2 

Various organizations Nitn a decidedly pr~se vationist agenda use the 

appeals process to halt management actions they deem objectionabl e . 

Habitat development through timber harvest, especially e~en age 

manage~en t, for those species of forest wildlife that require young for est 

habitats is one action that is commonly aP?ealed. Activist organiz~tions 

have learned that with the investment of only a 32-cent stamp, l and 

management decisions and programs ~~at have been reviewed in detail by 

agen:y staff representing numerous disciplines can be derailed. 

The current appeals process is a significant hindrance to l and management 

on our National Forests in several ways. First, an inordinate amount of 

Forest Service staff time is expended in an attempt to ensure that 

decision documents are appeal proof, that all of the "i's" are dotted and 

"t's" are crossed. A r ecent report by the General Accounting Offi ce 

estimated that 30% of Forest Service f ield unit staff resour ces are annually used to respond to filed appeals or in prepa ration for expected 

appeals. In summary, Forest Se rvice professionals are forced t o 

concentrate their efforts on paperwork rather than land management. 

Second, the Forest Service is often r eluctant to issue decisions t hat it 

feels may be appealed by local activists. Hence, the mere knowledge that 

a decision may be appealed has a significant impact on the Forest 

Service's decisionmaking process and, therefore, on land management 

policy. 

Finally, the continuous barrage of appeals has, more than any single 

factor, led to a significant decline in the morale of many within the 

Forest Service. This erosion of motivation may, in the long run, prove to 

be the most damaging aspect of the administrative appeals process. 

I have enclosed t he following items that document how those publics 

philosophically opposed to forest management use the appeals process not 

to promote meaningful dialogue, but to promote their very narrow agenda. 

l. Sing-to-the-trees~ 

Appeal of a timber sale on the Pisgah National Forest (North Carolina) 

filed by Preserve Appalachian Wilderness (PAW1 stat ing that forest 

healt h is best addressed by singing to the trees. PAW offers to 

provide the required singers if the Forest Service isn't able to do 

so. 

2. More-the-merrier ~ 

Three appeals filed against one timber sale on the Pisgah National 

Forest. Appeal documents were obviously prepared on the same word 

processor. These appeals use identical text including the same 

spelling errors (page 3). This strategy is commonly used to attempt 

to assert that a given project has engendered significant public 

opposition when in reality action is taken by only a handful of 

individuals. 
104 

3 

3. Instructions distributed by Preserve ~ppalachian Wilderness on how to 

use the appeals process to halt forest management activities. The 

instructions pertaining to eventual appeals (page 2) are enlightening. 

They state " •• we' 11 pick one particularly offensive and well situated 

sale, go whole hog and take it to court, do some media grandstanding 

and CD (civil disobedience) to make it a statewide issue." 

4. Newsletter from The Forest Trust announcing the . development of a workshop designed to instruct participants in how best to use the 

appeals process to intervene in Forest Service timber sales. 

5. Newsletter from The Forest Trust that identifies how the workshop 

discussed in #4 above was used to train "future activists" at a New 

Mexico High School. 

In summary, US Forest Service land management policy must incorporate 

public input into the decisionmaking process. However, once decisions 

have been rendered using this input, these decisions need to be suP?Qrted 

and put into action in a timely manner. The process whereby publics ~ 

~ Forest- or project-level decisions should be eliminated. 

If you have any questions or comments, please do not hesitate to contact me. Thank you for your time. 
APPE:AL TO THE: F"ORE:ST 

OF' THE NATIONAL 

105 

SUPE:RVISOR 

F'ORESTS 

IN NORTH CAROLINA 

F' . Af'\.1e r- sun, 

F.E~V i FGF: STAY , AN[• AE!'!~NT 

}. 
106 

are impac.~ing the -tcr ~st. :~ngotr!l 

co:ll.!lc:!O!"'!: Cl."'!! in ~~:1 ine. Frasier r~ a!"e in de::l ine. Oak: are in dec! ine. 

il.re enn'? ~~. ! f prtit-2~ !!~OJ toring were dcne for non-cce •. <r.e!": ial 

~r:-e: U!! sucn as +ung1. arthr-ocods, and non woody pI ants, it waul d l ike} v be 

!cer :na: i:!! .1Y ~r! !;Oectes are 1n seriou5 trouble. Less than ll of 

~lc grJw!h rerMins. Tne Forest Se~v1ce II'IUSt plan its oroJects 

not onlv that this area not be log;leC, but that 

:!a~ be adocted to recovc:er st anas Nlth oak dec I inp, 

ini!:: ~wul ~ t·= ca.c.:omol ished by Sl~ging. Music has been demonstrateC 

it be l ow :c:s:J, If the Forest 

oromu::es tc :ing 

EFERENCES 

: ., r:, Mann, and H .H. Shu9ar: , 1977, "The !He:t of 

!..1:1! C:~r idor~ or. E-i!"d F·cpu! ati on s." Ame!". Mid l . Nat. 97: 

ot Juven i 1 e isu·;za. 

~o~ :: !'l: =~ 19e7. 

::~~ ::-. }er:r-y S. "~t ~unural ~nd F:.m!: ttonel k•1vers1tv 1n Te:11perate . 

!..~w;: n, Tnomas "St~e O!~turo~nce REduce~ Tr ee ' s Acil itv to Batt!e 

~cC!'r::1· , Fna"l C. "The E:clogy of Olo Grcwth Forests• fro11 a lec ture 

;1ve:r at Fr~::tourg: Sta!e Uni versity , ~~ril 1991 . 

Nc==, F:eed "A Fe9ional L3nos:aoe Aoprcach to Ma1nta1n D!versttv• 

~~~~: l~!"' CI!:. \to:. jj, No, 11. i•i:. 1983. 

Ot Oi d Growth ' Forest PI anntng 

~::~~, F~e-:: r:T;-: 2 Eo::o ! :;IC.3l E~fects cf Rc::ads 11 

E~rth First~ Jcurnr:a.l , May 
107 

-1-

APPEAL TO THE FOREST SUPERVISOR 

Of The United States Forest Service 

National Forests In North Carolina 

REGION 8 

(names) __ W!ll!am H. Isely ____________ _ 

__ Doris B. Isely _ _____________ _ 

Appellants 

v 

District Ranger Michael L. Wilkins 

Nantahela National Forest 

u .s. Forest service 

Deciding Officer Michael L. Wilkins 

In re: Appeal ot the 

decision Notice and 

Finding ot No 

Significant Impact 

for the Wildcat Knob 

Project Timber Sale 

In the Nantahala 

National Forest, 

Wayah Ranger District 

APPELLANT'S 

NOTICE OF APPEAL, 

REQUEST FOR STAY, STATEMENT OF REASONS, 

RELIEF REQUEST 

dated this 5th day of Sep. '91 

(names) William H. Isely 

Doris B. Isely 

(address) 80 Walnut Creek Rd. 

Franklin NC, 28734 

{phone) 704-369-7590 

Others attll!at!ng with 

Appellant in this appeal: 

Carson Col!llllunlty 

Frank II n , NC . 

(appellant's tile) Appeal~l.msc 
108 

-3-

REQUEST FOR A STAY 

The Wildcat Knob Project Timber Sale Decision Notice and Finding 

of No Significant Impact violate 42 U.S . C. 4223 et seq (herein after 

called NEPA). This decision violates NEPA, NFMA, and Forest Plan 

direction . All activities pertaining to the sale must be halted until 

the Forest Service complies with these federal regulations. 

Appellants request a stay, for the duration of this appeal , of 

the District Ranger's decision to approve the Wildcat Knob Project 

Timber Sale. Specifically, appellants request that the Forest Service 

halt the offering and awarding of any commercial timber sale, any 

planning or offering bids for construction and reconstruction of any 

roads , and further marking of any trees in the Planning Area for the 

proposed sale. This stay should be granted for the following reasons : 

The Wildcat Knob Pro·ject Timber Sale would Irreversibly alter the 

existing natural character of the creeks In the watershed area that are 

part of the water supply for the town of Franklin , nam~e 

and Mill Creek. Wallace Branch would also be damaged. Sell stability 

would be compromised, stream shading lost, sedimentation would Increase, 

and the forest would be fragmented, resulting In less fish and wildlife 

diversity than would otherwise exist If the area were allowed to recover 

from past logging and road building. 

VIsual beauty from numerous sites would be irreversibly destroyed 

due to the large number of planned clearcuts, and other harvesting 

methods that would not maintain a continuous canopy. 

The Record of Decision relies on an Incomplete assessment of the 

environmental Impacts when It concludes that the selected alternative 

Is the optimal management strategy for the Wildcat Knob Project Planning 
109 

9'1-08'- //-0005' -1-

APPEAL TO THE FOREST SUPERVISOR 

Of The United States Forest Service 

National Forests In North Carolina 

REGION 8 

(names)_~~~~~~-~~-:~~~~~~~~----------- In ref: Appeal of the 

Bernadene M, Foglesong 

Repersentlng Mill Creek Community 

Appellents 

v 

District Ranger Michael Wilkins 

Nantahala National Forest 

U. S. Forest Service 

Deciding Officer Michael L. Wilkins 

APPELLANT'S 

NOTICE OF APPEAL, 

decision Notice and 

Finding of No 

Significant Impact 

for the Wildcat Knob 

Project Timber Sale 

In the Nantahala 

National Forest, 

Wayah Ranger District 

file: Appeal-2.msc 

REQUEST FOR STAY, STATEMENT OF REASONS, 

RELIEF REQUEST 

Others affiliating with 

Appellant in this appeal: 

See ll!tachment "A" 

704 (phone) ___ _ 524 8954 

(winter phone• 407 562 2854} 

NOTICE OF APPEAL 
110 

91-0 8'-J;-oeo tr -1 -

APPEAL TO THE FOREST SUPERVISOR 

Ot Th@ Un!t@d Stat@s Forest Service 

NP 1al Forests ln North Carolina 

RE· · ·' 8 

(nam@) Walnut Creek In re: App@a) of the 

N@!ghborhood, Inc. Decision Notice and 

Appellant Finding of No 

v S!gnltlcant Impact 

for the Wildcat Knob 

District Ranger Michael L. Wilkins Project 

Nantahala National Forest in the Nantahala 

U.S . Forest Service Nation~! Forest, 

Deciding Officer Michael L. Wilkins Wayah Ranger District 

APPELLANT'S 

NOTICE OF APPEAL, 

REQUEST FOR STAY, STATEMENT OF REASONS , 

RELIEF REQUEST 

dated this 11th day ot Sep. 1 91 Others aff!l!at!ng with 

Appellant In this appeal: 

(name) Walnut Creek See Attached list· of 

Neighborhood, Inc. Macon County Residents 

(address) 80 Walnut Creek Rd. 

Franklin NC, 28734 

(phone) 704-369-7590 (appellant's file) App@a)-w . msc 
111 

Topic 179 PAW eastern Forest Task Forces 

jeffelllott en.forestplan 6:54pm Jun 26, 1991 

>· 

Preserve Appalachian Wilderness Eastern National Forest Task Forces 

Greetings 

Thanks for contacting PAW about working on Forest Issues. We've got enough 

folks now to really get going and kick some butt. 

We'll be working pretty extensively with Jasper Carlton and the Biodiversity 

legal Foundation, tying our work In with nationwide campaigns to force the USFS 

to carry out their mandate to preserve biodiversity on national forestlands, as 

well as putting pressure on them locally through appeals, guerrilla theater, 

lobbying and road blocks and tree sits for whoever's up for It, and whatever any of us choose to do on our own time. I think It would be best to build the 

pressure slowly and steadily, so that by the time things get real controversial 

and public we'll have all of our research done. 

Each of us needs to pick a specific district on the forest we are working on, 

The first things to do are to cont ~t the district ranger on your district and 

ask to be notified of all future management activities In the district. You can write to the main office to get notices for the entire forest If you really like 

getting mall, but It'd be easter to manage a single district. 

Write to the Wilderness Society and ask th-am for a copy of "How to Appeal Forest 

Service Decisions" and all updates, 

Wr1te to the forest planner at the maIn office and request copies of the 

Management area maps for the forest, as well as the forest plan and EIS 

(Environmental Impact Statement) for the plan, 

Also request copies of NFMA (National Forest Management Act), NEPA (National 

Environmental Polley Act) and ESA (Endangered Species Act) with all amendments. 

When you get these, color code the management area maps (familiarize yourself 

with what the activities are allowed In each management area. Color by number 

(put the protected areas In green. You won't need a lot of green). 

Look through the plan for all Information pertaining to Protected, Threatened, 

Endangered, Rare and Sensitive species on the forest. 

You can make an overlay of these areas and habitats of the species to 

superimpose over the Management areas In your district. 

Write to the Fish and Wildlife depts (state and national) and ask for a llst of 

Rare, Threatened, Sensitive, Endangered Protected, and candidate (cl ,c2,c3) Species In PA and any habitat maps and studies they may have. 

(All this Information will most likely be given to you voluntarily. If you don't get a response, or If you get a negative one, write back and request the 
112 

Information pursuant to the Freedom of Information Act. Its better not to do 

this the f i rst time you write so that you can establIsh a friendly workin g 

relationship with these foax Instead of an antagonistic one.) 

Familiarize yourself with these species and their habitat requirement, and where 

they have been sited. Pick your favorites and start from there. 

When you get a notice of a proposed action, request copies of the USGS Quad Maps 

for the area with outl fnes of the forest boundaries, and a 1 !sting of all 

management activities In that area (Prior cuts, offerings, and sales) You'll 

probably have to go go the office yourself and look through the files (wfth 

their assistance, of course) to map out all these on the USGS map as well. 

Now we'll have a picture of what Is actually going on In the forest . 

Eventually, once we've got all our research done and know what we're talking 

about, we'll pick one particularly offensive and well situated sale, go whole 

hog and take It to court, do some media grandstanding an~to make It a 

statewide Issue. We'll have better Information on the state~~ e forest than 

they do, and we'll kick their butts. . f j 

So go to ltl Cl '/ ' J ·, c~ ' 'r ;u r 

Contact me as soon as possible and tell me what you're working on, and keep me 

Informed as things progress, 

Please send a reasonable donation as well to cover mailing and modem costs. 

Subscriptions to the PAW journal are available for S20 a year. 

All other donations graciously accepted. 

Also, feel free to contact me If you have any quest Ions about anything you 1 re 

working on. 

For all things wild, 

Buck Young PO Box 52A Bondville, VT 05340 

(602) 297-1022 

e-mafll jeffelllot 
113 

GRASSROOTS 

Network News 

Environmental Protection for Nation.al Forests 

Summer 1993 

Timber Sale Intervention Made Siinple 

___ ,,,.; .. _,,, ..... ,, _____ ;...;,..,.: ..• 

·c·. omrrl ~riti ~g 'on .a timb~r sale can be 'hard an-d 

... · confusili.g work_. · Finding .out about the sa l~

_: attending ro team r.ne_etings .;md field trips', irid'sifting 

· through ffiass·es- of Forest SerVice do_cUrrients is often 

ove'rwiielming. You know you want to pro tect th e . 

forest, but r:naybe you're. not sure ex:l~ y how. .What 

~:'~/s 11 of~his information-- unles's yo_U: :know h?W to 

. ·- -. . . . 

reduced or redesigned based on the environmenul 

}lternat i~e. · Whatever tack Is taken, th e workshop'$_ 

p_reemprive: strategy will mean (ewer- appeals. . If a · 

timber sale does go _to court: the \~orkshdp Will have , 

J.rmed grassroots acovists _with a solid groundwork for 

makmg their- ca.s-e. But perhaps ·most inspiring to 

grassroots organizations _ is· the fun9amental . b.elp the 

workshop provides Yflth .seui_og :· thei"r .goals . .1nd 

_prioritie~ . 

. ~nd .. then, before yo4 you -know._it,: th~ Ei\ ·and . ·. . · 

,eciSion .. Notice ·.are out and your only ahe~native_ w·· The ·Fores(.-Trust prese:nred , this· wdl-.ks.ho.p· to an 

_. pro~~Ct the fores_t is to appeal the sale:, extremely enthusiastic ~udienc'e at die. ~ecent-7th 

Annual National Forest Reform:· Pow .Wow: One 

.. i.Me•nWhileJ the FOrest "S_ervice· is rn.akin~ the appe;ls participant; iiwigoratC:d py 'the. empow~ting mood of 

proces! increaSingly difficult, heighteni,ng the · need-for the ork..s~op eXcLaimed. "K.i ~ butt!'_'.. · · · 

grC'ater pre-decisional-involvement. But how· can you 

w e. e~ rty invOivernentto yOur advantage? · . . · 

To ·help activists ga in _ _greater i'nfluenc e early in the 

public partiCipat'i-on process; the Forest Trust has 

d~Veloped ·a new wo rkshop en.titled Timbrr Salt 

Jn.ttrvenfioii : The workshop uses a ·step - by-step 

mapping approach ·to identify key ·fac tors affecti n·g .;t' 

· tHnber. sale and . highl_ights ·strat!:.gic P.oin.tS_ Where 

acrivjsts can have the great~st impa·ct on ·th.e·dccision- inaking.prd{:ess. · · · · 

· . .Ac'tjvjsts learn ~ow_ to:· . , . 

•Det~rmine ·· ecological un_.itS' where ~he .impac~ : 

of timber sales· are felt. 

. . 

One participant, invigorat.ed 

·by lite empowering ,;wod of 

the workshop, exclaimed, . 

"Kick butt!" . 

-The maps used in this workshop . wfre r~aftijor an- a6turil 

timber: ·sale 'in the Santa.·Ft National.· Fortst; . i'n ~which boch.-

the Fo~est- Tmst an~ the . Fortst 'ResCiurct' c;:~u~cil .interVmed. · 

71u Fort;st Trust is gra tef~IJor tht liSt of Forest . Resource, ·•Ider:ttify. and map admini:stntiVe and -resource' · Council's data maps, which we-rf! ·used in d~ f!(fJpf ng· tl~ . 

· harvesting·constraintS siJch .as special use artas; o·verltt:ysfo.r_this'Works!wp.. ·· · · 

· .Serrll-Pritnitiv:e'-nOii-moi:orize_d rec reation . 

areas_. old grOwth forest; :tnd Unsuiuble so~ls . If your group Is intfresteiin l1aving tl~ Forts I . Tru.st'pf~t~~~- ·.1' Dev~lop · env_itoilmental aJ~ern:ltiv~ . for saJeS. tlzis· wor~hop _ln )'our reg~o11 , pltast cot:~ tall Shirl Crasmdti, · 

T~s ··;r,ppro:~ch-- <;,:~n be used to discou r;r.ge .the For~ i 

. Se~ice from -t?tfering·_ a sal~ or to prop_Qse that a _Sal_e 9e_ 

. Natioir.al Forest Progrnm, at (505) 9.83:.8992.· . ~·. ·. • 

·. -.SHIRL CROSMAN 
114 

---- --- ----- r·· l ru J tt,artr.-/1· H.t.'ll• •rt --~----------

TRAINING FUTURE ACTlVISTS: 

[0'< \ '0L\'1 'G YOL'TH 11\ FOREST P ROTECTION 

I

n Fd•rn:H\', thC' F"":"t r·~ Ti,_nbt . .'f S;tk luu:rn:-ndnn 

p rm:ccc; c; ur \·in· ~ q c~ n'lt :" ftdd tt'" f . Airc r ho"t H\!:! 

t.: \'C nl l fk"h ·r~ •wt rh t.• tr t:.' ·~.: nri n l1l <>Lk 1 t~' r 

)! f~ ~~fPtl " I! WII ~ in 19G l ;tnd I !1 q4 . dw Trw<t n.:cogni:cd 

dH; ne._:d IO cxr•;md rhe pr n(('~'i f l \ r(,':lCh rt:npJc Pllt !>i J c 

of rhl' erw tn t"I Ha l cotn tnll!l ity. To hi ~ C'Od , the 

inre n ·c Orio n wn r k"'I H1p 1\' :l.c; p rese n ted ro 11n~ · 40 

~cuden ~ a t San f;t Fe H i.l!h Sc hoi1 l' o; Ac aJ em\· o( 

CnnlltHIIlK<Hto n A n., :md Tcchno llli.!Y (ACA.T). . 

Th t TrtJs(o; Tunhcr Sillt! lnccrvc mi,, n proce ss wa;; 

Jes1g nc J .w hc'lr J.!rassroors activ iS ts g<u n grl! arc r 

The..· ;t ];~ ru llh wiHch rhc\· ·•rpr,•;H.: hcU this rasK w:l~ 

tn ~r tr!ll J! All ur cl t::c.: cd w r· ~sc ve vast rraCC$ ()t 

f,,n:H . PnH.' srn lurs wam cd co protct.: t :Hc<t" wirh "tccp 

.; l11pc:.:. \\ ~ theY fd t Hgg in ~ W<l.'i inappropriate, \Jthc r., 

\\';me ed to r,rntect sacreJ sites sut.:h :1s rhose idcnrifjcJ by 

the Santil Chua Pueblo. while t){ht!rs wanted to 'preserve 

ro;~ ll c~o; areas anJ Jimimshin"! olJ gro ~th swnJs. Some 

a.: roups went heyund the Trust's request to ident ify :lrcas 

ro rn ,tecr. anJ eH n idemificJ arens which theY wa nted 

rt' o;ec restt,reJ. ln .Forest Ser ... icc j<tl'}.!on. they Jevelor eJ 

thl'ir own "desired furu re cunt.liuon" fo r che furl!sc. 

infl uence irt Jech;inn -making <> n nat ional fo e~ s. T he: T l) c m::l ps se rved as a foca l 'poi n t fo r a refres h ing 

int.e rventio n pw<.:c s<: .uSe$ a ·h' r maP. pin_g J isc ussinh o f some nd ~nta l 4 uCst ii:> ns· abo ut· 

ec hr:"~ iq e to· identify key facn·" s affect ing a ri mbt·r Si\le. resou·rce mahagement. Sruderir.o; 1\SkeJ, "Why do they . 

and h il!h lighls str;Heglc pi,illts · · . h·ave ro cut lhl' wood at all? ... 

whe re act ,· o; ~ C;l n ha ve t he ,Can·r· t hey use uth(;r in~ 

c: ~st imr;lct nn the eci~io ri m;n c ria ls suc h ~s a~lnbc~ .... 

mak in c r roccs.<: . . Th e. Why can't they just le<t \'C the . 

presentation <tt .Sama Fe· High oiJ growc h nlo n d '' O t hers 

was. a o · · oppo rtun·it.Y Co quest io n ed .t he e co n omic 

·:decermine whether i: he process . in c e n'ti ve s fo r. h3rvest in g, 

.rid be use(ul .to non -aCtivists. . wonderiQg if. .. ,the only reasOn . 

· · ·to cut 'the wood was co make 

ACAT is· an inm)\•ari ve. and ey. :, O n e gro up's map · 

chnllenging jmJgrnrn that uses a in cluded a drawing of.' a cow.' 

vuiety of media to e;(plore the Wh e n ·asked bo u~ the ir 

princ ip les o f En glish, Soc ia l · feelings of the vii nmenct~l 

Stlldihancl S.cierict>. The three . impa c ts o( gra d n g. ' th ey 

ye d program St resses ACAT ~nu Working on Intervention Maps pOinted out .I hat "cows are n't 

community in vn kcment, inie rJisc ipli nary len rni ng, neces..'i<lrily .bad." and suggested rhat tbe number of cows 

htmds-Cm ac 1ivities. and 5el( moti\'tl ti9n. Judging from anJ the ext nt of g.raz ing s~o ld be <J Y'~· 

how quickly 1he ~c ude s unde rsrood and adopted the 

iri.te.rventi on r1roces..s, the rrogram is ~, ng ::1 sapt:rb j(Jb 

. o( rreparing them w nssume nim~m y e~ hi p ~s 

in e fuw re. · · 

The fi ~ I result of the Oso ti mber saie was co uragi~g 

tn the sruJencs. Tht: Forest Service 's origina l pJimneJ 

ha rVest of over 900,000 board-feet was reduced w 'under · 

206 .000 boa rd-fee r. The are::l in whkh 't he Forest 

A her .a bdef OverView of the process and its int'ent, rhe . Servic.e ·decided .ro harvj!St coinciJed .V:,ich the· areas . in 

·srudencs were asked ·ro apply if m .the 1993 Oso rimhc r which no ha rvesting constm(ms htuJ bee n .identified .' 

~ on th'e S<1m <i ·~ Na <? l Fprt st. The studerf ; lnspireQ by es ~ ma ny tu de nt . ex-p ressed 

formed .four working groups·, <1 nd we re provided u·, . 1 • ·eresr in usjrig a Va riation. of che imerv.ention· process.· 

~ap,s and da ra on vnrious ~eso ur c: e constraints. Each t.. evaluate o~her Fqrest Service ~c ivi ie , eSpec ia lLy the. 

group \~a s asked ro .. int t ·and ev<~ te " p:ucj c. g;, r!..: e~ tl y os ~ Sa nt ~ Fe ski bas ill expansion. 

constram:c and deqde to what extent 1t ul ~ ftm,V . · ·. · · . . 

tOgging actiVity.·. These- ~oi S ·induded old gic., h , t Trust's vision fOI' its Na ~> ila ! Fores! Program ~ to 

past logging acti vir'y In the area, local s~ patterns, and encourage c itizens ro .aCtively P.arti cipa re ih dec ision · 

Jie ~ are3s.' In Olddition, one' grOllp used topogr;~. pl-\i c · making on n:<i tio.na l fori!sts. 'T he AC AT Swden1s' . 

1ps to idemify .areas with steep slopes. Based on 'theu interest in adapting e iiuervention 'process to eVa luate · 

-s is, eaCh group created a map which renected the · a local ski area exparision demof'l;SUates that youth are 

ar e~s of the forest they_ wameJ to protect. ready to do their parr ro reali ze this vision. 
United States 

Department of 

Agriculture 

Forest 

Service 

115 

Honorable James V. Hansen 

Chairman, Subcommittee on National 

Parks, Forests and Lands 

U.S. House of Representatives 

Washington, D.C. 20515 

Dear Mr. Chairman: 

Washington 

Office 

14th & Independence SW 

P.O. Box 96090 

Washington, DC 20090-6090 

File Code: 5400 

Date' JJN I 8 19S6 

During the Subcommittee hearing held on June 6, 1996, Acting Chairman 

Richard Pombo asked Forest Service witness, Mr. Gray Reynolds, the following 

question: 

In ho•,.,r many previous instances have National Forest System lands been 

conveyed, without consideration, for school-related uses? 

Mr. Reynolds did not have this specific information at that time and advised 

that we would respond later to the Subcommittee. As noted during 

Mr. Reynolds' testimony, there is no existing authority for the Forest Service 

to convey National Forest System lands without consideration Conveyance 

without consideration would require legislation, therefore, we reviewed our 

records and found that during the last 10 years, two legislated transfers 

conveyed lands for local school- related uses. These are summarized as 

follows: 

Public Law 101-612, enacted on November 16, 1990, conveyed 12.0 acres of 

land to Del Norte County, Califo:rnia, for a camp for juvenile delinquent 

boys. 

Public Law 103-398, enacted on October 22, 1994, conveyed 30.0 acres of 

land to Lincoln County, Montana, for Libby Junior High School. 

In both instances, the transfers were made subject to a reversionary clause. 

Under this provision, the land would revert back to the United States should 

the intended use be discontinued by the county. 

Please do not hesitate to contact me again, if you should need any further 

information on these two legislative conveyances. 

Sincerely, 

~CK WARD THOMAS 

~ Chief 

Caring for the Land and Serving People 
116 

. ,&-·· 

• 

The Ruffed Grouse Society DEDICATED TO IMPROV ING THE ENVIRONMENT 

_ FOR RUFFED GROUSE, WOODCOCK, 

' AND OTHER FOREST WILDLIFE 

P.O. 8 Cl 't 2 • P.icc L~ke, WI !'i·i 868 

(7 1_l;) ~J.t l002. r :u (7 1!'i) l.\4 -505 1 

The Honorable James H<~ns en 

U.S . House of Representatives 

2466 P.ayburn House Office Bu i l ding 

Washington, DC 20515 

Dear Representative Hansen, 

15 August 1996 

The Ruffed Grouse Society, established in 1961, is a nonprofit wildlife 

conservation organization dedicated to promoting forest resource 

stewardship through forest management. As the Forest Wildlife Biologist 

for the Society I work clos~ly with the staff of approximately 30 National 

Forests in 24 states to further mutually-agreeable land management 

initiati•1es. In addition, my responsibilities require that I interact on 

a regular basis with personnel at the Regional Office and Washington 

Office levels. 

On 12 June 1996 I provided written testimony for consideration during the 

hearing of the Subcommittee on National Parks, Forests and Lands on the 

U.S. Forest Service appeals process. In this testimony I called for the 

elimination of the process whe reby publics may utiliz~ administrative 

appeals to halt Forest- or project-l evel decisions. Recognizing that this 

proposed solution may currently be politically untenable, I provide the 

following comments in the hope that they may aid the Subcommittee as it 

struggles to identify s ubstantive changes to the appeals process tha t will 

maintain the ability of the public to be fully involved in the management 

of public lands without unduly burdening the Forest Service by forcing it 

to respond to the misuse of the appeals process by those publics 

philosophically opposed to the agency's multiple-use mandate. 

The tiered nature of the Forest Service decision-making process offers an opportunity to drastically reduce appeals filed for little reason other 

than to complicate land management planning. Each National Forest 

functions under a Forest Plan that was developed with considerable public 

input. Landscape-level issues such as land use allocation (wilderness, 

old growth, intensive timber production, etc •. . }, allowable sale quantity, 

forest-type and age-class composition, forest fragmentation, etc ••. , are 

all dealt with at length and with considerable input from various 

publics as the Draft Forest Plan is developed. The Draft Plan is then 

circulated for additional public comment prior to the preparation of the 

Final Plan. 
117 

2 

Due to the many disparate interests that provide comment throughout the 

plann ilYJ proc<?ss, it is not possible for the Final Plan t o provi•J" 

everythin] for everyone and +:.h" Final Plan may ind e~ be ~ppealec1 hy any 

of thos-e publics who perceive that their interest3 have been slight•ed. 

tlon<>th<> l,oss, th<> rigorous planning process ensures tha t these publics have 

been afforded every reasonable opportunity to pursue their agenda . 

Froj<cct-level decisions arl! subs<oquently tailor~ to fit the man-1gement 

direction outlin~ in the Forest Plan. The tiered decision-~~king process 

is int-en•l"'J to preclude the dupli cation of effort and th!! endless clel,~L ~ 

assoc i ated with philosoph ical differences. Unfortunately, cur r ent apre.1J 

r<>g•Jla tions have aPowed such duplication of e ffort to become t he norm on ITArrt National Forests. 

If administ rative apreals of project-level decisions were required to 

address pertinent, site-specific considerations, the use of "canned 

appeals " and other tacti cs d<?signed primarily t o obstruct r esource management could be gr eatly r<?duced from current levels. Lik<?Wise , the 

costs and, mere importantly, the wast~ personnel time associat~l with 

responding to these perfunctory appeals could be minimized . 

It is reasonable to suggest that apreals of project-level dec isions that 

r a ise landscape-level issues should be summarily dismissed if these same 

issues were address2d during the development of the forest Plan. I 

respectfully suggest that only site-specific issues not addressed during 

the deve l opnent of the Forest Plan should be legitimate grounds for the 

~al f~ proj ect- l evel decision. 

If you have any questions or comments, please don't hesitate to contact 

me. Thank you for you r time. 

~~ Dan Dessecker 

For est Wildlife Biologist 

0 

26-518 (128) 
ISBN 0-16-053937-4 

90000 

9 780160 539374