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80-160 PS 2002

PROCESS GRIDLOCK ON THE

NATIONAL FORESTS

OVERSIGHT HEARING

BEFORE THE

SUBCOMMITTEE ON FORESTS AND

FOREST HEALTH

OF THE

COMMITTEE ON RESOURCES

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

June 12, 2002

Serial No. 107-126

Printed for the use of the Committee on Resources

(

Available via the World Wide Web: http://www.access.gpo.gov/congress/house

or

Committee address: http://resourcescommittee.house.gov

(II)

COMMITTEE ON RESOURCES

JAMES V. HANSEN, Utah, Chairman

NICK J. RAHALL II, West Virginia, Ranking Democrat Member

Don Young, Alaska,

Vice Chairman

W.J. ‘‘Billy’’ Tauzin, Louisiana

Jim Saxton, New Jersey

Elton Gallegly, California

John J. Duncan, Jr., Tennessee

Joel Hefley, Colorado

Wayne T. Gilchrest, Maryland

Ken Calvert, California

Scott McInnis, Colorado

Richard W. Pombo, California

Barbara Cubin, Wyoming

George Radanovich, California

Walter B. Jones, Jr., North Carolina

Mac Thornberry, Texas

Chris Cannon, Utah

John E. Peterson, Pennsylvania

Bob Schaffer, Colorado

Jim Gibbons, Nevada

Mark E. Souder, Indiana

Greg Walden, Oregon

Michael K. Simpson, Idaho

Thomas G. Tancredo, Colorado

J.D. Hayworth, Arizona

C.L. ‘‘Butch’’ Otter, Idaho

Tom Osborne, Nebraska

Jeff Flake, Arizona

Dennis R. Rehberg, Montana

George Miller, California

Edward J. Markey, Massachusetts

Dale E. Kildee, Michigan

Peter A. DeFazio, Oregon

Eni F.H. Faleomavaega, American Samoa

Neil Abercrombie, Hawaii

Solomon P. Ortiz, Texas

Frank Pallone, Jr., New Jersey

Calvin M. Dooley, California

Robert A. Underwood, Guam

Adam Smith, Washington

Donna M. Christensen, Virgin Islands

Ron Kind, Wisconsin

Jay Inslee, Washington

Grace F. Napolitano, California

Tom Udall, New Mexico

Mark Udall, Colorado

Rush D. Holt, New Jersey

Anibal Acevedo-Vila, Puerto Rico

Hilda L. Solis, California

Brad Carson, Oklahoma

Betty McCollum, Minnesota

Tim Stewart, Chief of Staff

Lisa Pittman, Chief Counsel/Deputy Chief of Staff

Steven T. Petersen, Deputy Chief Counsel

Michael S. Twinchek, Chief Clerk

James H. Zoia, Democrat Staff Director

Jeffrey P. Petrich, Democrat Chief Counsel

SUBCOMMITTEE ON FORESTS AND FOREST HEALTH

SCOTT McINNIS, Colorado, Chairman

JAY INSLEE, Washington, Ranking Democrat Member

John J. Duncan, Jr., Tennessee

John E. Peterson, Pennsylvania,

Vice Chairman

Mark E. Souder, Indiana

Michael K. Simpson, Idaho

Thomas G. Tancredo, Colorado

J.D. Hayworth, Arizona

C.L. ‘‘Butch’’ Otter, Idaho

Dale E. Kildee, Michigan

Tom Udall, New Mexico

Mark Udall, Colorado

Rush D. Holt, New Jersey

Anibal Acevedo-Vila, Puerto Rico

Betty McCollum, Minnesota

(III)

CONTENTS

Page

Hearing held on June 12, 2002 ............................................................................... 1

Statement of Members:

Hansen, Hon. James V., a Representative in Congress from the State

of Utah ........................................................................................................... 6

Prepared statement of ............................................................................... 8

Hayworth, Hon. J.D., a Representative in Congress from the State of

Arizona ........................................................................................................... 4

Inslee, Hon. Jay, a Representative in Congress from the State of

Washington .................................................................................................... 1

McInnis, Hon. Scott, a Representative in Congress from the State of

Colorado ......................................................................................................... 10

Prepared statement of ............................................................................... 11

Otter, Hon. C.L. ‘‘Butch’’, a Representative in Congress from the State

of Idaho .......................................................................................................... 5

Tancredo, Hon. Thomas G., a Representative in Congress from the State

of Colorado ..................................................................................................... 2

Udall, Hon. Mark, a Representative in Congress from the State of

Colorado ......................................................................................................... 9

Udall, Hon. Tom, a Representative in Congress from the State of

New Mexico ................................................................................................... 3

Statement of Witnesses:

Bosworth, Dale, Chief, Forest Service, U.S. Department of Agriculture ..... 12

Prepared statement of ............................................................................... 15

Additional materials supplied:

U.S. Forest Service Report ‘‘The Process Predicament’’ submitted for the

record ............................................................................................................. 37

McCormick, Mary, Staff Assistant to the Deputy Chief for Research and

Development, Forest Service, U.S. Department of Agriculture, Article

from The Oregonian submitted for the record ............................................ 62

(1)

OVERSIGHT HEARING ON PROCESS

GRIDLOCK ON THE NATIONAL FORESTS

Wednesday, June 12, 2002

U.S. House of Representatives

Subcommittee on Forests and Forest Health

Committee on Resources

Washington, DC

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

1334, Longworth House Office Building, Hon. Scott McInnis

[Chairman of the Subcommittee] presiding.

Mr. HANSEN. [presiding.] The Committee will come to order. I am

hesitant to start this meeting as the Chairman of the full Committee, but we understand that Mr. McInnis, the Subcommittee

Chair, is coming down from Bethesda right now and is hurrying

down here. Possibly if the colleagues on the Committee wouldn’t

mind if it would be a good time to give our opening statements before we turn to Chief Bosworth, and with that in mind I turn to

the Ranking Member, Mr. Inslee from Washington.

STATEMENT OF THE HONORABLE JAY INSLEE, A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF

WASHINGTON

Mr. INSLEE. Thank you, Mr. Chair. Thanks for joining us Chief.

We are always glad to have you here. Mr. McInnis has been very

involved in the fire efforts in Colorado, too. He has been a busy guy

recently. We hope that your agency is doing the best possible in

that regard and good luck in that regard. I may parenthetically, I

think there is some bad news out there for future fires with the

global warming prospect that we face. There is a new report out

about the potential droughts that we face in the west. I am afraid

that we might be in for a few decades of this until we get a handle

on global warming.

I look forward to your testimony today. I would just make a couple comments briefly about it. One of the things that strikes me on

this topic of management and efficiency and decisionmaking in the

Forest Service, if you step back from it, it looks to me like one of

the things that has driven this issue is that essentially, we have

had a bit of change of mission in the Forest Service in the last couple of decades and that we have been going through a culture shift,

both nationally and in the Forest Service that are associated with

our laws, and that is a transition from looking at our forests

2

predominantly for resource extraction industries to now valuing

and representing and using the other good assets and resources of

the forests for recreation and good quality water and open space

and habitat for wildlife.

And it strikes me that this shift we are still in the process of

doing that to reach a new balance in our forests. And in that process, I don’t think it is surprising that we have had controversy in

that regard, that there has been questions about the right decisionmaking and that there has been litigation when the Forest Service

is not, at least according to some citizens view, following the law.

I don’t think it is surprising that we have had controversy about

the decisionmaking in the Forest Service as we have gone through

this cultural shift.

Second thing I want to say, I think there are a lot of things, and

I look forward to your testimony that the Forest Service can be

doing, even absent legislation to ease this decisionmaking, because

I really believe, and I have seen it up in the northwest where if

the Forest Service decides to listen to the public and listen to the

values the local public has been advocating, they can avoid a lot

of controversy.

Let me give you an example. By moving away from some of the

controversial old growth proposed timber sales in the northwest,

down the lower slopes of newer growth thinning operations where

we can have cuts that are noncontroversial. It is a management decision, I think the Forest Service can and should be making, and

we look forward to talking with you about how to do that, and perhaps even from a legislative standpoint about how to make those

type of transitions. I look forward to your thoughts about how we

move in those directions. But bottom line is, I think we will come

out of this hearing with a finding that listening to the public will

help us get over a lot of these problems, and of course, that is

something we will be talking about the roadless rule with you too

in that regard. Thank you, Chief, and thank you Mr. Chair.

Mr. HANSEN. Gentleman from Colorado, Mr. Tancredo.

STATEMENT OF THE HONORABLE THOMAS G. TANCREDO, A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF

COLORADO

Mr. TANCREDO. Thank you, Mr. Chairman. There is little that

can actually focus one’s attention on this kind of a problem like an

80,000 acre blaze going on in one State as we sit here and speak

today. People perhaps don’t understand exactly what that really

means putting it in perspective for people who live out here. 87,000

acres, which is what we have now is twice—is actually 135.9

square miles, which is about twice the area of Washington, D.C.

That is what is involved in one blaze so far in Colorado, and there

are, of course, several others that are ongoing. This is an incredibly

tragic situation, caused, we believe, by a careless campfire being

unattended. Out of every single tragedy, there is something that

we can hope for in the way of a positive development.

In this particular case, I think it is perhaps going to be helpful—

this congregation is going to be helpful in getting people to the

table and understanding that there are ways in which these kinds

of fires can be dealt with, can be minimized. We will always, of

3

course, have and should, of course, have fires. They are healthy

part of the ecosystem. But these kinds of fires, fires we are talking

about here, the ones we had just in the recent past, Hi Meadow,

Buffalo Creek, Snaking Fire, these are not healthy fires. These are

fires that do far more damage to the ground and the surrounding

ecology than would have been the case if it had been able to be a

fire burning in more of a natural surrounding, that is to say, in a

less densely forested area.

And the way in which that better management policy can be developed, better management of forests can be developed is through

cooperative effort on your part and ours what we can do to help you

overcome the inertia that exists within the agency.

That is what I want to hear today, and I am hoping that you are

going to be able to help us figure out what we can do to move away

some of the obstacles that prevent the analysis paralysis that we

have heard so much about. I think the concept of charter forests

is one way to attack that problem, greater flexibility to the forests

management idea and operation.

But I am interested in knowing what you will tell us about that.

And it is fascinating, I have a picture here of the High Meadow fire

and where it burned and where it stopped in Colorado, and something I am going to pass along here to my colleagues. If anybody

is still questioning whether or not management, forest management can work in order to minimize the destructiveness of these

kinds of fires, this is, I think, proof positive that it can be done.

Where the forests had been thinned, where we had been working,

we saw the fire line stop almost immediately. You know the fire

came out of the tree tops, burned lower to the ground and eventually put itself out.

We know it can happen. We know we can do it and that is the

most disconcerting thing. We know how to manage forests a lot better. The problem is that extreme environmentalists on one side and

bureaucratic inertia on the other have prevented us from doing so.

That is just my observation at this time. And I would sincerely appreciate, and I am certainly glad you are here today to give us your

observation.

And the last thing that I would like you to comment on is the

proposal I introduced last night to increase fines for people who do,

in fact, start campfires in areas where they should not. Believe this

or not, the first night of the Hayman fire when helicopters were

taking water into the fire, they overflew seven other camp fires in

the same area. When some of these people were contacted, they

were willing to sort of chip in the five bucks a piece to pay the 25

dollar fine. So I would like to hear your comments on that too.

Mr. MCINNIS. [presiding.] I will keep it real tight on the opening

statements because I want you to have an opportunity.

STATEMENT OF THE HONORABLE TOM UDALL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW MEXICO

Mr. UDALL OF NEW MEXICO. Thank you, Mr. Chairman. Let me,

first of all, just say that to my colleagues in Colorado that I know

what you are experiencing. We had the Cerro Grande fire and a

number of fires in New Mexico in 2000. As your fires rage right

now, we have thousands and thousands of acres also burning. So

4

we are once again in a fire situation that is out of control on this.

And as the Chief knows, these catastrophic fires are a different

kind of fire. I mean, you talk to the incident commanders and they

say they haven’t seen fires rage like this. They have their own

weather conditions and they burn in a way that is out of control

and it is something we really need to tackle.

And I guess my message to you, Chief, and you know this, but

to the public, is this is a long-term situation. We need to commit

the resources over the long term to make sure this is done. We are

not going to get out of the conditions that my colleague from Colorado talked about in a couple of years. I mean, we have gotten into

this situation over 100 years and it is going to take us quite awhile

to get out of it, so we need to have that long-term commitment.

And once again, my sympathies to Colorado and what you all are

going through.

Mr. MCINNIS. Thank you.

Mr. Hayworth?

STATEMENT OF THE HONORABLE J.D. HAYWORTH, A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF

ARIZONA

Mr. HAYWORTH. I thank you, Mr. Chairman, and my colleagues

and Chief, we welcome you today and we thank you for coming

down to visit with us during the course of this hearing. Mr. Chairman, my colleagues, it strikes me that someone may join us via television. Aside from the obvious anguish of the fires that we see in

the west might be worth going into some background just to point

out that so much of the land in the west belongs to the Federal

Government.

So, for example, Gila County, Arizona, 97 percent of the county

owned by some governmental entity, not all the Federal Government, but still, when you consider that roughly 3 percent of the

county is private property, it is problematic because when you are

dealing with questions of what might be called in an urban setting,

zoning or property management, in the western United States, the

landlord in many cases is the Federal Government.

And I would second the comments of my colleagues today as we

are dealing and confronting with the fire danger. Chief, we pointed

out and as fires rage in southern Arizona, perhaps not as dramatic,

but certainly as devastating in our own way what we are seeing

right now in Colorado, I think it is important to reiterate that we

have seen what has been characterized here as a rather elegant politically scientific term of bureaucratic inertia. And translate it to

everyday language, that is, folks in government service choosing

through delaying tactics not to carry out the will of the people and

constitutional officers and sometimes by delay, subverting the law

of the land.

The challenge we confront on the fires is obviously one that in

terms of public policy triage is front and center. But there are other

issues that emerge, Mr. Chairman, and I think next week we will

hold a hearing to go more in-depth on the New Education Land

Grant Act, which we passed unanimously through this House,

which was passed by the Senate and signed into law by President

Clinton on December 28 of the year 2000.

5

And I think Mr. Chairman, in my opening statement, I would be

remiss if I didn’t point out a perfect example of the type of bureaucratic inertia and the type of change in culture we need to see in

the Forest Service that is long overdue. We put together a conference in Phoenix in the fall of last year for Arizona school districts that were interested in applying for land conveyances under

the New Education Land Grant Act to convey nonenvironmentally

tale sensitive public land at a low cost to these districts.

I have to report to this Committee, and again, I will go more indepth next week in the hearing, the conference was met with major

resistance from the Forest Service. In fact, although Forest Service

officials had initially confirmed that they would participate in the

conference and certainly they have a key role in providing information to school districts, they apparently decided to sabotage the

event by not showing up at the conference without giving notice to

me or any member of my staff save a last minute message on a

staffer’s cell phone on the voice mail.

Finally, upon my personal demand that they do so, two officials

did make an appearance at the conference and proceeded to outline

various hoops the school districts must jump through and pay for

in order to qualify for a land conveyance. As it turns out, local

Forest Service personnel had a presentation complete with power

point slides ready to go for the conference, but they were told at

the last minute by bureaucrats in Washington not to attend the

conference presumably because implementation procedures were

still unclear. The reluctance by the Forest Service to implement the

law aside from efforts of the Forest Service to make conveyances

more costly for school districts can only be interpreted as an effort

to frustrate the obvious intent of the law. This is a prime example

of bureaucratic inertia. Now to be fair for purposes of full disclosure, I am hardened by the fact that in Georgia, the Chattahoochee-Oconee National Forest, the first land grant will be completed

under this Act next month. But right now in Arizona, we have a

couple of applications that they are just sitting as victims of bureaucratic inertia.

I say this, Chief, because we want to work with you and there

needs to be a culture shift and if it must begin in the Forest

Service, let it begin now to implement the law of the land and to

put an end to the unelected deciding what laws they will follow and

what laws they will ignore. I look forward to your testimony and

I thank the Chairman for the time.

Mr. MCINNIS. Mr. Otter?

STATEMENT OF THE HONORABLE C.L. ‘‘BUTCH’’ OTTER, A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF IDAHO

Mr. OTTER. Thank you, Mr. Chairman, and welcome Chief. I as

you know just walked in and I only got to hear my colleague from

New Mexico and my colleague from Colorado and now Arizona and

it is extremely frustrating I am sure in the short time in your office

you already know that. And we have all got our ideas on how to

probably break down gridlock. Unfortunately for some gridlock it is

exactly what they want. But for others, those who lost their jobs

and for the school districts that have closed down in Idaho and the

888,000 acres that burned up 2 years ago and now lays waste and

6

is devastating our fisheries and is devastating our water shed and

really creating quite a bit of havoc in those water sheds, those of

us that live on the land out there and for the most part try to represent what is good for the land, we want gridlock over with. And

I am not exactly sure—I wish I had the magic wand I could wave.

My Lord didn’t grant me with the wisdom to come up with the solutions to all these ideas. But I would hope that most of your energies would be directed toward overcoming gridlock. If we have to

bring everybody to the table, however we have to do it, I think we

ought to set a time line and say by this date, it is going to be over

with because I think unless we set ourselves a drop-dead date on

when we are going to have processes that will allow us to defend

ourselves from hazards that we would not allow to exist anyplace

else, potential devastation to water sheds and fisheries and communities and jobs and those sort of things, we would not allow that

to happen anywhere else.

If that same disastrous overgrowth, if that same disastrous hazard existed in Washington, D.C., we would marshal every forest—

we would deploy every talent and every piece of equipment at our

disposal in order to eradicate that potential disaster.

And so I am frustrated, as I am sure you can hear that frustration in my colleagues. Whatever we do, let us get it over with.

Gridlock is actually serving the intentions of a lot of folks. To do

nothing is exactly what they want. But it is also devastating communities and it is ruining lives. It is ruining water sheds. The very

thing we seek to protect is now being devastated.

So I look forward to hearing your comments, but I really look forward to hearing the date or the time or the years or the months

that you are prepared to set and say by this time, we are going to

have this thing behind us and we are going to go forward. Thank

you, Mr. Chairman. And once again, Chief, thanks for being here.

Mr. MCINNIS. My apologies to the Chairman, I should have

called on you first. Chairman, opening remarks?

STATEMENT OF THE HONORABLE JAMES V. HANSEN, A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF UTAH

Mr. HANSEN. Thank you very much, Mr. Chairman. Let me just

say if you go back and read the charter of the Forest Service from

1905 up to today, much of it is predicated on one word and it is

called ‘‘manage.’’ and we give these folks the tremendous responsibility to manage the Forest Service of America. As I—and I have

known Dale Bosworth for a long time and I feel comfortable with

him as Chief. I know how capable he is. He worked in areas of

Ogden, Utah, an extremely capable man and I don’t think we can

do better. I also know in BLM, if I may talk about that for a just

a second, Kathy Clark is also a very competent young lady and has

a very good knowledge of things; and between the two of them, we

worked some of this out.

But we are talking about the frustrations we have and we all got

them. There is a lot of frustrations out there right now. You know,

I would challenge members of the Committee to go on the next

break to take half a day and go to your local forester and have him

show you the forests. You are going to find more fuel load than we

probably ever had in the history of the forests. I am not trying to

7

place any blame on anyone, but some folks remind that we don’t

clean the forests, we don’t thin the forests and don’t have prescribed fires.

And as you know, we are going to have a hearing in the full

Committee which will talk about the amount of lawsuits that have

been filed against the Forest Service and the BLM and how it has

bogged them down. And I am sure Chief Bosworth will be at that

meeting. I think you are going to be amazed of what these people

tell you. Right now they spend 40 to 60 percent of their time filling

out charts with NEPA trying to take care of that. So a lot of that

rests here in Congress. We probably have made such a fudge factory for a lot of these folks to go through that we got to start

straightening up some of the these things so they can do what they

were asked to do in 1905, which worked then and will work today,

and that is, manage the grounds of America.

When you got that many people working on NEPA problems—

and now add to that and I am sure the Chief will give us better

information at our next hearing, there is 5,000 legal actions pending against the Forest Service right now as of May 2002. I was

talking to Kathy Clark, and I said how much of your budget do you

spend on litigation? She said just a tad over 50 percent. So we are

going to give all this money to the BLM and they are spending it

on litigation.

No disrespect for the American trial attorneys have found anything besides tobacco and asbestos to go after and to file one lawsuit on top of another, which really are predicated on some of our

extreme environmental groups. Let us say to our managers of the

public land, let us let them have the opportunity to manage the forests. Let us see them clean the forests.

Remember back, and boy, this will really get you if you remember this, but there used to be something called the CCC boys, and

they went in and they thinned the forests and cleaned the forests

and the forests looked pretty good. And now we have dead fall and

fuel load like you can’t believe. Of course we are going to have

fires. We have a very fine forest supervisor retire not long ago in

the State of Utah, and his name is Hugh Thompson, and is now

working for natural resources. Hugh had the Dixie Forest.

Dixie Forest years ago, when the first pioneers came in the valley, there was nothing. And they started planning. The Forest

Service went in and created one of the most beautiful forests there

is in America called the Dixie Forest in southern Utah. And then

up by Cedar Breaks they had an infestation of something called the

pine beetle, and Hugh wanted to go in and cut out about 17,000

acres. No, got a lawsuit just like that. Stopped him. The trouble is

those little beetles just kept eating away and finally got through

the first one, another lawsuit. Now I would just challenge any of

you, and as an old pilot and I go down there occasionally and fly

over it and you know what you got? You got dead sticks. It looks

like dead toothpicks all over the place.

And I started thinking about the time we had a really great forester here in the 1980’s, and we are talking about the Uintah

Mountains, and there was a fellow from one of the extreme environmental groups, and he said don’t touch it, leave it alone. Don’t

even come close. And this forester said I don’t have a dog in this

8

fight, but let me tell you what is going to happen. If we don’t go

in and clean out that infestation of pine beetles, you are going to

have a dead forest and I will guarantee you will have a fire. He

said I can guarantee you will have a fire and that beautiful green

carpet that you don’t want touched will be an ugly dirty mess.

And his next comment was, and I think you can guarantee you

will have a flood. And if you are going to do it nature’s way that

we keep hearing around here, it will take 100 years before you will

see that forest back to what it was. This gentleman doesn’t have

the option of just letting it go. He has to take care of the forests

as the BLM has to do. I just say to my friends here this is an extremely important issue that we have in front of us today, but I

wanted to add the dimension of we, Congress, have created a lot

of this fudge factory ourselves. And one thing we could move into

would be rule 28 of the civil procedure on how these lawsuits are

filed, and I would urge the Committee to do it.

Mr. MCINNIS. Thank you, Mr. Chairman.

[The prepared statement of Mr. Hansen follows:]

Statement of The Honorable James V. Hansen, Chairman,

Committee on Resources

A little over a month ago, the Resources Committee held a hearing on the future

of the Forest Service. Secretary Veneman and Chief Bosworth told us about their

vision for the Forest Service and what changes would have to take place to keep

the agency working to protect and enhance our National Forests.

One of the most important issues that surfaced in that hearing was the excessive

gridlock, or ‘‘analysis paralysis,’’ and the hampering effect it has on the Forest

Service’s ability to manage the nation’s 192 million acres of National Forests for all

Americans. I look forward to hearing more about Chief Bosworth’s report today that

details this problem.

I’ve worked closely with the Forest Service for many years, and have a good relationship with many of the people who make it run. I worked with Chief Bosworth

when he was the Regional Forester in Ogden, Utah, and know that he is very capable of leading this organization. I’ve been impressed by the outstanding men and

women that are the regional foresters, forest supervisors and district rangers. I

know they’re great leaders and managers, and that they have only the best of intentions for the nation’s forests.

But today, the Forest Service leaders can’t lead and the managers can’t manage.

This has nothing to do with their abilities as leaders or managers, but has a lot

to do with the way that we do business here. Often, this Body passes laws that

begin with good intentions. By the time these laws are interpreted and put into

place, they end up only making things worse. Over the years, more and more restrictions have been placed on managers, and their ability to make management decisions has slowly diminished.

If that isn’t bad enough, add frivolous appeals and years of confusing and contradictory court interpretations, and the result is gridlock. Instead of being able to

make and implement good management decisions, the Forest Service spends 40%

to 60% of their management time preparing NEPA documents, meeting other statutory and regulatory requirements, and preparing agency decisions to withstand possible appeals and litigation. This does not include time spent defending those decisions in the courtroom. Just as a side note, in May 2002, about 5,000 legal actions

were pending against the Forest Service.

The result of this gridlock is poor management, or no management at all in some

cases. For example, regardless of the urgency, a 34-cent stamp can hold up a badly

needed timber sale for years. Take the case of the Dixie National Forest in Southern

Utah. For more than a decade the spruce forests in the Dixie have been under siege

from bark beetles. When the epidemic began, the Forest Service began to offer timber sales in an attempt to contain the bark beetles. However, although these timber

sales would likely have improved the health of the forest by reducing the spread

of the beetle and the number of dead and dying trees, the timber sale decision in

1994 was appealed. As was the timber sale decision in 1995. And the sale decisions

in 1996, 1997, 1998, 2000, 2001, and 2002. The result? Fat beetles and dead trees.

Like a slow moving wildfire, these beetles destroyed every spruce in the area, and

9

left them standing. Anyone that has driven through the Dixie National Forest in

the last ten years will attest to the decimation of this once beautiful forest.

Sadly, the ramifications of this tragedy extend past the dead trees. Adjacent landowners now face an extreme fire hazard. Wildlife habitat has been destroyed, including potential habitat for the goshawk and spotted owl. Hikers must find another

place to recreate. Passers-by are left with a dreary visions of a standing forest of

dead trees. And the beetles have now spread into the Cedar Breaks National Monument.

The point is that gridlock doesn’t only affect projects to improve the health of the

forest or just timber sales. It affects the Forest Service’s ability to manage endangered species habitat, grasslands and ranges, watersheds, trails, campgrounds, minerals, roads, and a host of other important multiple uses that occur on our public

lands.

The Forest Service was once known for the local managers’ ability to manage the

forests. Let’s let them do it again. We have the right people on the ground. We have

great leaders and managers. But they need to be allowed to lead and manage. I look

forward to hearing Chief Bosworth’s report and his recommendations.

Mr. MCINNIS. Members, we keep having members come in, so I

am going to allow two more opening statements on your side, two

more on this side and I am closing off opening statements and you

can submit it for the record. We take all this time we are not going

to get to hear from the Chief and that is who we want to hear

from. We all hear from each other all the time. So Mr. Inslee, I will

go in the order of how they are seated. Mr. Udall, you came in next

and I will go in the order you showed up.

STATEMENT OF THE HONORABLE MARK UDALL, A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF

COLORADO

Mr. UDALL OF COLORADO. Thank you, Mr. Chairman. I will make

my comments very brief. I did want to echo the concerns of my colleagues from Colorado, particularly Mr. Tancredo and Mr. McInnis,

when it comes to the Hayman fire and the situation we now face

in Colorado. And, Chief, I am looking forward to hearing your comments. I also support what my colleague, Mr. Tancredo, has proposed when it comes to increasing the fines for campfires that

shouldn’t have been set in the first place, and the incredible damage they can cause.

All of us in the Colorado delegation have worked on the fire plan

and fuel reduction efforts over the last couple of years. And I want

to emphasize again that we need to get those resources into the

urban wildland interface, the so-called red zone. And I am eager

to do all I can to help the Forest Service and work with my colleagues to see if that is the case. This is a long term problem. We

are in it on a marathon basis. This has been developing certainly

for 100 years. We have more to learn about the forest ecosystems

and the best way to manage those forests. But if we can pull together and find our common ground, I am optimistic we can reduce

these hazards and return our forests to a healthier condition. I

thank the Chief for coming up to the Hill today.

Mr. MCINNIS. Mr. Udall, if you don’t mind, I will let you yield

your 3 minutes and 45 seconds to Mr. Holt.

Mr. UDALL OF COLORADO. I would be happy to yield my time to

my colleague from New Jersey, Mr. Holt.

Mr. HOLT. No. I yield. You can yield your time to another.

10

Mr. MCINNIS. Go ahead, Ms. McCollum, you may proceed. Do you

have an opening statement?

Ms. MCCOLLUM. No, I don’t, Mr. Chairman.

STATEMENT OF THE HONORABLE SCOTT McINNIS, A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF

COLORADO

Mr. MCINNIS. I will wrap it up, first of all, Chief, I want you to

know we just finished the White River National Forest Plan. And

the regulations, the comment period and the things—I mean, we

have asked for public input in our democracy of 200 years, frankly,

I think has saddled your agency with regulations and input. And

everybody that I have talked to thinks they know how to run that

forest better than your people do.

Unfortunately, I think your agency has been somewhat bashful

or timid about saying hey, why don’t we let the experts in and instead, we are taking more and more public comment, and I will

give you an idea. I, as you know, in the White River National

Forest, was appalled by the alternative that they came up with

which for the first time in forest planning set human use as a

lower priority than ecological or biological—any ecological or biological use that took priority over any human use. So I submitted

my own forest plan, which was a very thick complicated, detailed

document prepared by scientists.

That was the science. When I went into your office in Glenwood

Springs, one of the Forest Service employees wouldn’t even shake

my hand. It is embarrassing for me. I put my hand out and he said

I am not going to shake the hand of someone like you. And I am

wondering what was happening there.

Now fortunately, Martha Cattell and Rick Cables and some of

those people responded. But we also heard that despite the fact

that the Chairman of the Forest Committee, the fact a congressional representative of this district got elected by the people of

this district, and the fact that his report was done with experts, including the former supervisor of the White River National Forest,

which was my expert who primarily authored the report, so to

speak, combined with the others, this should—some of these people

say this comment should have the same as somebody off the street

who sends a one-sentence comment to your agency that says that

I either oppose the White River alternative or I support it.

And that is bureaucracy. I know you know this. You came into

this. You inherited this. On top of that, I have just come as you

know, all the major—or most major fires including the big one

right now started in my district in Colorado. Saturday night I was

interrupted at a dinner to be told that my parents home of 60 years

had been burned to the ground. That was incorrect, but the fire

was on all sides of them.

By the time I got to Glenwood Springs, they said we had 150

homes in flames. I actually went in and did my own damage assessment because, obviously, having lived there I know it like the

back of my hand. The actual damage was perhaps 30 homes. That

said, I want to tell you your Forest Service out there with that fire

and with every fire we have had so far in my district, which are

the major fires we have had out there, your agency has been splenVerDate 11-MAY-2000 12:09 Mar 14, 2003 Jkt 000000 PO 00000 Frm 00014 Fmt 6633 Sfmt 6602 80160.TXT HRESOUR1 PsN: HRESOUR1
11

did and been there, with their air tankers, their people are first

class and seems to me that last year when we gave you these resources, we hired additional fire men and equipment, we are clearly seeing a difference now with this fire season over what we saw

last fire season.

So if we can see that kind of improvement in the other parts of

the agency that we deal with as we have seen in my opinion, the

dramatic improvement in our fire management that I witnessed

firsthand and spent the entire weekend with your people out there,

I think we can make some real progress.

So it is clear from the comments made by this Subcommittee,

and fortunately everybody on this Committee has a deep and intense experience with Forest Service property all in our own ways.

In my district, for example, 119 out of the approximately 120 communities are completely surrounded by public lands. So these are

experienced voices.

But you are an experienced leader and I think we can see some

results. So I look forward to your testimony. And Chief, the time

is yours. You are not going to be limited to 5 minutes. We want

to hear your discussions and then we will open it for two-way discussion.

[The prepared statement of Mr. McInnis follows:]

Statement of The Honorable Scott McInnis, Chairman,

Subcommittee on Forests and Forest Health

Today, the Subcommittee on Forests and Forest Health will hear testimony from

the Chief of the United States Forest Service, Dale Bosworth, who will present the

findings of a widely anticipated report on the decision-making process that guides

the management and use of our national forests. This Subcommittee and many others have been eagerly anticipating the findings of this report for several months,

and we appreciate the Chief coming here today to present the results of this analysis.

It is altogether fitting that we are having this conversation at a time when catastrophic wildfire is quite literally laying waste to forests and communities throughout the West. If we’re ever going to slow this fiery march across the West, we’ve

got to start managing our forests. Unfortunately, mortal flaws in the Forest

Service’s decision-making process makes widespread and meaningful treatment of

our national forests a virtual impossibility. The Forest Service estimates that 50

million acres of our public forestlands are at high risk to catastrophic fire. And yet,

because of the cumbersome process impediments described in the Chief’s report, the

Forest Service this year will be hard pressed to treat one million acres of those high

risk areas. Clearly, this glacial pace is unacceptable in the face of such a massive

threat. Effective management of our forests, then, necessitates a substantial overhaul of the way the Forest Service makes and implements management decisions.

That process, I hope and trust, begins with our consideration of the Chief’s report

today.

The laws and regulations that govern the national forests are the result of more

than 200 years of American democracy. Unfortunately, as this body of law has

evolved and expanded over the decades, policy makers and the Forest Service have

failed to assimilate the sea of relevant statutes, regulations and court decisions into

a workable whole. We’ve piled procedure on top of procedure, process on top process,

and analysis on top of analysis. The result is a mountain of congressional mandates,

administrative directives and court decisions that rival the federal tax code in their

complexity and convolution. Jack Ward Thomas, the former Chief of the Forest

Service, accurately refers to this nightmarish bureaucratic heap as ‘‘the blob’’.

As I have said previously, the vast majority of the laws and regulations that we’re

talking about were established with good motives and for sound public objectives.

Cumulatively, however, this incoherent maze of mandates has crippled the Forest

Service. The statutory mission of the Forest Service is to ‘‘care for the land and

serve the people.’’ Paralyzed by process, shackled by gratuitous bureaucracy, today

the Forest Service is incapable of living up to that charge.

12

So what does all this mean on the ground, in the real world? For the answer, look

no farther than what’s going on in Colorado right now. All of us have seen the images of the Hayman Fire on the news, the massive wildland fire just outside of Denver that has made scorched earth of nearly 100,000 acres in the Pike/San Isabel National Forest.

For those living in communities like Bailey, Decker, Woodland Park and Pine,

these images aren’t new at all. They saw the same ominous images from their backpatios and front-lawns when fire ravished much of the same country in 1996 and

2000. Those fires burned 23,000 acres, destroyed nearly 100 homes and other structures, dumped several tons of sediment into Denver’s primary source of drinking

water, and filled our Rocky Mountain skies with black smoke and soot.

As bad as these fires were, though, the Forest Service and others in these communities new it could get worse. They knew that, as often as not, second and third

burn-overs are more catastrophic than the initial fire. So in August of 1999, they

set out to do something about it. In collaboration with a broad array of federal, state

and local officials, the Forest Service set in motion the South Platte Watershed Protection, which was focused on protecting adjacent communities and Denver’s drinking water from another major fire by reducing excess forest fuels in the treatment

area.

Like so many other efforts like it, though, this project was strangled-out by red

tape and inane bureaucracy. Thanks to an 800 step decision-making process (according to Forest Service figures), two appeals by environmental groups, and a retaliatory appeal by the forest products industry who wanted to make sure it had a seat

at the table when the Forest Service negotiated an agreement with the environmental community—the Upper South Platte Restoration Project is almost entirely

unimplemented nearly 3 years after it was first proposed. Today, the area slated

for treatment under the plan is on fire, 6 thousand homes in the area have been

evacuated at last count, old-growth stands in Inventoried Roadless Areas have been

reduced to ash, tons of sediment are once more being dumped into Denver’s drinking

water, and our blue skies have once again been made black with smoke.

In my opinion, Colleagues, the Hayman fire is the face of process gridlock on our

national forests. The Forest Service’s fundamentally flawed decision-making process

didn’t start the fire; it appears that that was the doing of an illegal campfire. But

the unmistakable reality is that the Forest Service’s inability to make and implement a management decision on the South Platte turned a complicated situation

into a regional crisis.

Clearly, Mr. Bosworth, the time for reforming this framework is past due. Your

predecessor Jack Ward Thomas has said that, the General Accounting Office in a

1997 report said that, and now with this report you have said that. Your

challenge—a challenge which we substantially share in—is to parlay these words

into long-past-due action.

It is with this that I thank the Chief for being with us here today and I look

forward to this important dialogue.

Mr. MCINNIS. And thank you, Chief. You may proceed. Rick

Cables, by the way, if there were some medal I could give him, he

was wonderful out there. So my compliments to them and I hope

you pass that on.

STATEMENT OF DALE BOSWORTH, CHIEF, U.S. FOREST

SERVICE, U.S. DEPARTMENT OF AGRICULTURE

Mr. BOSWORTH. Thank you, Mr. Chairman. I will pass those comments on, and I appreciate hearing those and I know the folks in

the field will appreciate hearing that as well. Mr. Chairman and

members of the Subcommittee, I really do want to thank you for

the opportunity to continue the discussion that we started several

months ago regarding the processes that Forest Service line officers

face in trying to make decisions on the land and in trying to comply

with a myriad of laws, regulations and standards that end up being

imposed. About 6 months ago, I told you that I would ask the team

to update former Chief Jack Ward Thomas’ study on the Forest

Service’s legal and the regulatory framework, and to take into conVerDate 11-MAY-2000 12:09 Mar 14, 2003 Jkt 000000 PO 00000 Frm 00016 Fmt 6633 Sfmt 6602 80160.TXT HRESOUR1 PsN: HRESOUR1
13

sideration any kind of new laws or new regulations, new court

decisions that had happened in the intervening years. That report

has been completed.

And I am happy to provide that report to you. I would like to

talk today about the report and I would like to talk some about

how I expect and how I begin to intend to try to unravel the procedural knot in which the Forest Service is bound at this time. The

report I am giving you today doesn’t set out to propose solutions,

and I want to be clear about this. At this point in the report, we

didn’t want to talk about solutions. We want to develop consensus

on the problem so we can search for the right solution. My big fear

would be we would come up with solutions in search of a problem

and I think we need to do it the other way around. And as you see

the report, we will find out whether or not there is any agreement

that we have identified the right problem, that it is a problem, and

then I think together we can move forward to start correcting that.

Environmental laws and regulations, I don’t believe, are in conflict. I think the fundamental problem is that the legal and the procedural requirements that the Forest Service has to comply with

haven’t been systematically developed or systematically constructed

over time. They really evolved over probably 30 years in response

to laws, agency regulations, court decisions, public expectations,

scientific understanding. They don’t have very much coordination,

little or no coordination. So that resulted in three general problems. The first I will talk about is excessive analysis. We have created a short-term risk-adverse atmosphere, which most of the time

doesn’t properly weigh the more significant long-term considerations or long-term consequences of only thinking about the shortterm.

The procedural requirements imposed by regulatory agencies and

the courts just never stop. They just continue to pile on, to pile on.

And that means you have increased analysis and documentation

which is costly, it is complex, it is time-consuming, and often

doesn’t result in timely decisions. And I think Congress and the

public has every right to ask at the end of the day is the result

a better decision.

I can’t think of a better example that illustrates this point than

a report that is called the Beschta report. It is a commentary that

was authored in 1995 by eight university and government scientists. The paper has never been published in any scientific or

professional journal, never been subject to any formal peer review,

but in four cases now, courts have concluded the project decisions

violate NEPA because the associated NEPA documents didn’t adequately document the agency’s consideration of the Beschta report.

I think it is a good but definitely not the only example of an incentive that our line officers feel to fill, overstuff NEPA documents

with excessive amounts of information, excessive amounts of analysis and documentation. It is time consuming and costly, but it

doesn’t really contribute very much in the end to the quality of

public involvement and land management. The question is, Is that

what Congress wants? Is that what the public wants? Another area

is unproductive public involvement.

A lot of our critics say that we would avoid a lot of our problems,

if we would only include the public earlier in our project planning.

14

I think the reality is that I really don’t believe there is another

Federal agency that provides more opportunities for public review

and comment on proposed plans and projects than the Forest

Service does. We try to do it early in the process at the very beginning. We involve the public all the way through the process

through multiple meetings, field trips often to make sure we understand what people are thinking.

We encourage competing interests to sit down and reason together to try to find ways to accommodate their various viewpoints

and various objectives. The theory behind the approach is that it

will lead to more informed decisions and those more informed decisions will have more broader public support. It can—I don’t think

it can be reasonably expected to mean that the Forest Service has

to have unanimous support, unanimous support for every aspect of

a project if we are going to move forward.

Ultimately, Forest Service officials have to end up making a decision based upon a lot of different factors, some of which may not

be represented. However, the benefits of this dialog with the public

too often frustrates the public, just like it does the Forest Service.

Now my testimony that I submitted talks about the efforts of the

Hiawatha National Forest to remove an existing concrete bridge

across a creek called North Light Creek, that is within the Grand

Island Research Natural Area.

This bridge was breaking apart, chunks of concrete falling into

the creek. The forest closed the bridge in 1995 and started scoping

on a replacement bridge. There was a fair amount of public support. A lot of public support in the initial scoping period and in the

environmental assessment comment period there was substantial,

but not unanimous, support by local residents, recreation interests,

and environmental groups for the project. One individual who had

participated earlier in the process but who had not opposed the

project appealed it.

Although the appeal wasn’t based on agency’s consideration of alternatives, the regional office review then found the document, at

least the documentation of some other alternatives, was lacking so

the ranger had to withdraw the decision several months later. It

was subsequently decided to consider the bridge project in the context of revisions to the research natural area record of the establishment record. And the forest’s plan amendment took about a

year-and-a-half to complete, and that one wasn’t appealed.

So now here we are, we are scoping now again for the bridge replacement project which began last June. We figure the construction of the replacement bridge could begin in 2005, so we end up

with a single appellant that really overrode broad public support

for the project when it was proposed in early 1995 and has placed

the bridge replacement back 10 years.

Again, small bridge, safety issue, environmental issue and the

question is, Is this what Congress wants? Is this what the public

wants?

The third problem is really us, the Forest Service. When I testified before the Subcommittee last year, I admitted that we are part

of the problem. In the work that our folks did to develop the report,

the team also found that agency leadership and management in

planning and decision-making needs to be improved.

15

I have asked our Deputy Chief for national forest systems, Tom

Thompson, to take a comprehensive reengineering of our processes

internally to address those parts of the report that we can correct

internally as an agency.

Mr. Chairman, I want to close today with pretty much the same

message I had last year. We are frustrated with the status quo.

Forest Service employees are committed to protecting and improving the quality of the land, the water, wildlife and air and with the

goals with protecting and preserving this Nation’s precious historical and cultural resources.

But I want to be clear that I am not coming here to dump the

problem in your laps and say this is your problem. I am really

more here to deliver a promise. We are going to work hard and we

are going to get this fixed. We will go as far as we can. But we

will go a lot further and a lot faster if we can get your help, your

advice and support.

And I want to be clear that this isn’t about going backward to

the past. This is really a new time. You know the public is at a

different place today than when a lot of our environmental laws

were enacted. The science wouldn’t let us go back to the old ways

even if we wanted to. We know more today than we did when these

laws were passed. But I don’t believe when it passed these important laws, that Congress really had in mind unnecessary and unproductive procedures.

I don’t think that we expected the process to produce absolute

certainty, and that is what we seem to be in the quest of, absolute

certainty for every decision. So I am dedicated to revising and not

just reviewing Forest Service processes to provide the best tools

and training for our line officers and staff. And we will do a better

job of managing our processes. But I don’t want the Forest Service

to just get a whole lot better at a bad process. I want us to fix the

process and to be good at managing a good process. We have been

consulting closely with the counsel on environmental quality.

This report has their stamp of approval. We have been consulting

closely with other Federal agencies and departments such as Commerce and Interior. They share our desire to improve the effectiveness and the efficiency of our processes.

So today I am asking the members of the Subcommittee to look

at this report with an open mind and give me a chance to work

with you to find a way to make Forest Service land management

decisions in an effective, efficient, and timely manner that doesn’t

compromise protection of natural resources that people expect us to

manage carefully.

With that, I am ready to answer questions and thank you again

for the opportunity to be here.

Mr. MCINNIS. Thank you, Chief, for the presentation.

[The prepared statement of Mr. Bosworth follows:]

Statement of Dale Bosworth, Chief, Forest Service,

U.S. Department of Agriculture

Mr. Chairman:

Thank you for this opportunity to continue the dialogue we started late last year

on the difficult, costly, confusing and lengthy processes that Forest Service line

officers must follow to comply with the laws enacted by Congress, implementing

16

regulations and procedures put in place by the Forest Service and other agencies,

and standards imposed by the courts.

Six months ago, I told you I had tasked a team to update former Chief Jack Ward

Thomas’ study on the Forest Service’s legal and regulatory framework to take into

consideration new laws, regulations, and court decisions since the study was prepared in 1995. That report has been completed.

Today I want to discuss the report and how I intend to begin to unravel the procedural knot in which the Forest Service is bound. As I have said before, I need the

Subcommittee’s help if I am to be successful. This knot is no less tightly tied than

the Gordian Knot of ancient Greek mythology. And unlike Alexander the Great, I

cannot simply draw my sword and cut it.

By design, the report I’m giving you today does not contain specific recommendations for changes in Forest Service policy or guidance, the regulations or policies of

other Federal agencies, or laws. Frankly, I felt that doing so would distract all of

us from the more immediate task at hand: fully appreciating and agreeing on the

existing legal, regulatory, and management framework under which the Forest

Service must labor to get work accomplished.

Before we can begin to agree on solutions, we need to have general agreement

that the current framework is not conducive to this agency getting the work that

the Congress and public expects done, in a reasonable amount of time and at a reasonable cost. I believe that report makes a persuasive case that the existing framework is an impediment to those ends. Unless we can change the existing framework,

it is only going to go from difficult to impossible to get work accomplished on the

national forests and grasslands.

The Team concluded, correctly I believe, that the difficulty of complying with the

laws, regulations, and management procedures are not primarily the result of conflict between the laws. Rather they arise from the piecemeal imposition of regulations, court decisions, and internal agency process requirements over time. Over the

several months that the team conducted its review and analysis, it generally agreed

with the 1995 Task Force Report’s findings that the legal and procedural requirements the Forest Service must comply with have not been systematically constructed. Rather, they have evolved over time, in response to laws, agency regulations, court decisions, public expectations and scientific understanding with little or

no coordination. That circumstance results in three general problems.

1. Excessive Analysis

Regulatory agencies take very seriously their obligations to enforcing the statutes

under their jurisdiction and they are properly reluctant to allow projects to proceed

absent documentation of the anticipated impacts. Courts also demand a high level

of analysis and documentation from the agency’s decision documents.

This has led to lengthy consultation and a short-term, risk averse environment,

frequently at the expense of far more significant long-term benefits. That means increased analysis and documentation, which is costly, complex and time consuming.

The procedural requirements imposed by regulatory agencies and courts never seem

to abate—they just continue to pile on.

Congress and the public have every right to ask, ‘‘At the end of the day, is the

result a better decision?’’ I don’t think so.

I can’t think of a better example to illustrate this than the so-called ‘‘Beschta

Report,’’ a commentary authored in 1995 by eight university and government scientists. Many members of the Subcommittee may not be familiar with this report.

The authors prepared the paper at the request of the Pacific Rivers Council. It

offers 21 ‘‘principles and recommendations’’ regarding a wide range of topics. The

topics include: erosion, soil impacts, noxious weeds, sensitive areas, effects of road

building, reseeding, and fire management policies. The paper generally recommends

against any active management of post-fire areas other than removal of existing

roads. The paper has never been published in any scientific or professional journal,

nor has it been subject to any formal peer review.

Nonetheless, interest groups have filed numerous lawsuits challenging post-fire

recovery projects in part on the grounds that the associated NEPA documents fail

to adequately document the agency’s consideration of the ‘‘Beschta Report.’’ I have

been told that information on how to use the report to write comments on proposed

projects and appeals of project decision documents is available on more than 100

Web sites. To date, there have been judicial opinions on the ‘‘Beschta Report’’ in six

cases.

In four of these cases, the Courts have concluded that project decisions violated

NEPA because the associated NEPA documents did not adequately document the

agency’s consideration of Beschta. In two other recent cases, Federal District Courts

have ruled in favor of the Forest Service. In one case, Native Ecosystem Council v.

17

U.S. Forest Service (D. Mont.) (Maudlow–Toston, Helena NF), the Court found that

the EIS complied with NEPA even though the plaintiffs strenuously argued that

failure to adequately consider the ‘‘Beschta Report’’ violated NEPA. In the other

case, Center for Biological Diversity v. Andre (D. N.M.) (Corner Mountain Fire Salvage, Gila NF), the Court found that the EA adequately considered the issues in

the ‘‘Beschta Report,’’ even though the EA did not reference the ‘‘Beschta Report.’’

Hitting .333 is very good in baseball. It’s not much of an average in natural resource case law. As a result of these 4 decisions, land managers wishing to reduce

the risk that their decision will be reversed in Federal Court should feel compelled

to thoroughly document their consideration of the ‘‘Beschta Report’’ even though the

underlying land management issues are already addressed. This includes documenting why some elements of the ‘‘Beschta Report’’ are not relevant to the specific

proposed project.

The judicial opinions against the agency have inspired some interest groups to demand that the agency consider numerous other papers and articles that they assert

are relevant to the some proposed actions. Sometimes the list of references exceeds

100 articles and papers. To minimize the risk of adverse judicial opinions, land managers are advised to fully document within the body of the NEPA document their

detailed consideration of each and every paper or article.

So, when critics assert that the Forest Service is its own worst enemy by spending

so much time preparing large NEPA documents, I ask that you remember the

‘‘Beschta Report’’—an unpublished document of questionable science proposed for an

advocacy group that has never been peer-reviewed—but whose consideration now

must be documented in several if not all judicial districts in order to build a defensible NEPA document.

It’s a powerful example of the incentive for land managers to fill, or overstuff,

NEPA documents with excessive amounts of information—even if the information

is of questionable relevance and does not illuminate the reasons for the decision—

all in an effort to protect their decisions from charges they failed to adequately consider some piece of information. As a result of these efforts to increase the legal defensibility of decisions, project analysis and documentation processes are very time

consuming and costly, but the additional documentation contributes little to the

quality of public involvement or land management

Consider the following from the article, ‘‘Toward a Smarter NEPA: Monitoring

and Managing Government’s Environmental Performance,’’ by Bradley C.

Karkkainen that was published in the Columbia Law Journal (May 2002).

‘‘...The upshot is that agencies have an incentive to overstuff the EIS with information from every available source, regardless of its quality, so as to achieve a protective layer of redundancy or ‘‘overkill’’ while at the same time inoculating themselves against the charge that they overlooked relevant information. Eighty-three

critical comments from NGOs, academic experts, EPA or other federal agencies at

the scoping and draft EIS stages quickly translate into an even more bloated final

document, as agency managers seek to incorporate, recharacterize, or rebut relevant

details of the critiques. If high quality information is included, it may be diluted

or simply lost under the avalanche of lesser quality information, vague case-specific

analysis, marginally germane off-the-shelf studies, reports and data sets and

boilerplate cribbed from previous EAs.’’

Is that what Congress wants? Is that what the public wants?

If not, it is something I would like to change for the Forest Service.

2. Unproductive Public Involvement

As the Subcommittee has stated previously (for example, in the November 29,

2001, letter co-signed by the Chairman and Mr. Udall (NM), the public is vitally

interested in community-based land management approaches that bridge ideological

differences and focus on results. Your letter suggested an opportunity to translate

that interest into legislation authorizing a pilot to implement and monitor innovative approaches to land management drawn from communities. The Administration’s Fiscal Year 2003 Budget included a similar proposal to establish pilot forests

administered outside the normal Forest Service structure. The details of that proposal have not been finalized. The idea has merit.

There is no federal agency that provides more specific opportunities for public review and comment on its proposed plans and projects than does the Forest Service.

These opportunities occur at multiple planning levels and include: Federal, state,

local and Tribal agencies; advocacy groups; user groups; and private citizens. A district ranger who wants to seek consensus advice from a range of opinion leaders in

the community must be extremely careful to avoid any technical violation of the

Federal Advisory Committee Act and that’s not easy to do.

18

We encourage competing interests to sit down and reason together to find ways

to accommodate their diverse objectives. We try to do it early in planning a project.

While the decision still rests with the agency, the theory behind this approach is

that it will lead to more informed decisions that have broad public support. It cannot reasonably be expected to mean that there is unanimous support for every aspect of a project. Ultimately, Forest Service officials must render decisions based on

a wide range of factors, some of which may not be represented.

However, the benefits of this dialogue is too often not as productive as one would

hope. Consider the efforts of the Hiawatha National Forest to remove an existing

concrete bridge across North Light Creek within the Grand Island Research Natural

Area that was breaking apart and falling into the creek. Although it’s signed

‘‘closed,’’ snowmobilers and other non-motorized traffic still use the bridge. Visitors

not using the bridge cross the creek by scrambling down banks, causing bank erosion. The Forest wants to replace the bridge with a single-span, 6-foot wide, treated

glue laminated arch bridge with railings at the existing crossing. The scoping on the

project started in early–1995.

There was considerable public support to replace the bridge. At the initial scoping

period and EA comment period, island residents, recreation interests, and local environmental groups all supported the project, without exception. The Decision Notice

to replace the bridge was signed in mid–1998. One individual, who had participated

earlier in the process, but who had not opposed the project, appealed. Although the

appeal was not based on the agency’s consideration of alternatives, the Regional Office review found that the documentation of other alternatives was lacking, so the

District Ranger withdrew the decision several months later.

The Forest Service subsequently decided to consider the bridge project in the context of revisions to the RNA Establishment Area. Revision of the Establishment

Record and the Forest Plan Amendment took 1.5 years to complete and was not appealed.

New scoping for the bridge replacement project began in last June. The new EA

is underway. Construction of the replacement bridge could begin in 2005. So, a single appellant overrode broad public support for the project when it was proposed in

early 1995 and has pushed bridge replacement back almost 10 years.

Is this what Congress wants? Is this what the public wants?

It is something I would like to change for the Forest Service.

3. Management Inefficiencies

When I testified before the Subcommittee last year, I admitted that we were part

of the problem:

‘‘I want to address this problem head on, not engage in finger pointing, or blaming

everybody but us for the current problem. In written reports and hearing testimony,

the General Accounting Office and others have detailed their views on the underlying causes of inefficiency and ineffectiveness in the Forest Service’s decision- making. No question—we share responsibility for the problem. But we cannot fix the

current problem by ourselves.’’

In its work, the Team also found that agency leadership and management in planning and decision-making needed to be improved. The case studies in the report we

are submitting illustrate situations where process management decisions cost the

Forest Service. Sometimes distracted managers and line officers have hurt us. There

is a clear need for us to better train and inform our line officers so that they, in

turn, can clarify the scope of decisions being made, undertake the appropriate analyses required to make an informed decision, and adequately document decisions in

a timely and cost-effective manner.

The Forest Service is currently engaged in a number of efforts to make the decision process more efficient, including the work done by this Team. Others include:

revising the planning regulations under the National Forest Management Act, updating the agency’s categorical exclusions under NEPA, a developing an array of

tools for assisting with NEPA compliance.

We need to make a substantial investment in technology. Consider what I said

about the many Web pages that provide information on how to use the ‘‘Beschta Report’’ to challenge proposed projects. There is no reason that the agency can’t use

the same technology to assist our line officers in responding to those challenges, and

whatever new ones arise at some point down the road. We are doing that. We need

to do more. We will.

I have asked Tom Thompson, Deputy Chief, National Forest System, to undertake

a comprehensive re-engineering of our processes to address those parts of the report

that we can correct as an agency.

Mr. Chairman, I’ll close today with much the same message as last year.

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We are extremely frustrated with the status quo. Forest Service employees are

committed to the goals of protecting and improving the quality of our land, our

water, our wildlife, and our air and with the goals of protecting and preserving this

nation’s precious historic and cultural resources. But, we find ourselves too often unable to do the work that we know needs to be done, the work that Congress and

the public expect us to do because of unnecessary and unproductive process and procedure.

I believe the report I am providing you today makes the case for change. At the

least, it makes it hard, if not impossible, to argue that current environmental laws

and regulations couldn’t be implemented more efficiently and effectively. Who would

argue the laws and regulations shouldn’t be implemented as efficiently and effectively as possible?

I am dedicated to revising, not just reviewing, Forest Service processes to provide

the best tools and training for our line officers and staff. We will do a better job

of managing our processes. But I do not want us to just get better at playing a bad

game. I want to fix the game.

I expect our endeavors to resolve analysis paralysis will take significant effort and

a great deal of time and will generate opposition. At the end of the day, those who

are determined to keep projects from going forward, the merits notwithstanding, are

afforded a considerable advantage by the dysfunction of the our decision making

process. They will not cede that advantage without a struggle.

The Council on Environmental Quality, which, as you know, is responsible for the

NEPA regulations that apply to all federal agencies, and the other federal agencies

and departments with whom we closely work, such as the Department of Commerce,

the Department of the Interior, and the Environmental Protection Agency, share our

desire to improve the effectiveness and efficiency of our processes. I know we can

count on their support as we undertake this task.

Today, I ask you and the other Members of this subcommittee to look at this report with an open mind and give me a chance to work with you to find a way to

make Forest Service land management decisions in an effective, efficient and timely

manner that do not compromise protection of the natural resources we are entrusted

to manage for the American people.

Mr. Chairman, that concludes my statement. I would be happy to answer any

questions from you and the other Members of the Subcommittee.

Mr. MCINNIS. I have a couple of points and then we will move

on for the balance of the Committee. One thing I think would be

helpful is education at the local management level within the agency, kind of advice on you know frivolous lawsuits. I know that

every time the local forest service and the number of forests that

I have make a decision, somebody always says they are going to

sue them. And frankly, I am a little concerned that having been a

lawyer, I am a little concerned that our employees out there are

becoming gun shy about that. That just throwing that threat at

them causes them to retreat or reconsider. Most of the threats of

lawsuits are not sustainable in the courts.

Now anybody has a right to file a lawsuit, but whether or not

they win in the end, only a small, small percentage would prevail,

and only a small percentage of those threats would be filed. So I

think that is important and I would like your comment on that.

The second thing, if you would just—we have been talking about

a very broad picture, can you point out what you would think

would be the most significant factor contributing to the gridlock

and the stalemate that we are running into today? If you would

help me with those two and then we will move on.

Mr. BOSWORTH. OK. Your question about, or comment about forest service people backing off or being afraid to move forward because of the threat of lawsuits, that does affect Forest Service people when someone says we are going to file a lawsuit. But my experience has been that our folks are not backing off, but they are

spending a lot of time trying to make sure that if they do get sued,

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that they are going to be able to withstand that lawsuit. So the

backing off may be to do some additional analysis to make sure

that your documentation is carefully done to try to resolve the

issue with people that are considering the lawsuit.

And as I mentioned in my testimony, there are things like the

Beschta report that will pop and then we will go back to all of our

other projects and make sure we documented the consideration of

the Beschta report and there may be another report.

So our folks tend to add a lot of stuff into these documents to

make sure they can withstand a challenge if they are unable to resolve it through a collaborative approach. I don’t think they are

afraid to move forward; they are afraid to move forward without

strong recommendation and without strong feeling that they will be

able to withstand the challenge.

In terms of the most significant factors that result in some of the

gridlock, I think it is very difficult, to try to identify one thing that

is a big problem. It is an overlapping number of things. That is

why it is going to be difficult and challenging to try to deal with

it because there are so many things. You cut one string but there

are still a million other strings you need to cut. You have to figure

out what things will give us the greatest benefit for the time and

effort we take to straighten out. The thing that probably frustrates

me the most would be an analysis that needs to be done simply to

overcome a challenge as opposed to adding good value to a decision.

I support analysis that is going to help make a better decision.

But I really get frustrated with doing work that doesn’t seem to

add to the value of the decision. I think our whole climate of being

adverse to any kind of risk is also a problem and particularly when

we talk about short-term risk versus long-term. And I think that

is partly there because of the regulations that have evolved. We

don’t want—we don’t want to take short-term risk, but in the end,

we end up with lots of long-term risks in some of these ecosystems

and you can see examples of that in the fires that are burning right

now.

Mr. MCINNIS. Thank you, Chief. One point I probably should

have made in my opening statement, I mentioned about the fact

that the Forest Service employee that I ran into, I want you to

know that was not one of your management or senior people. It

was lower level. My relationship with your supervisory personnel

at every forest at every level even though we have not agreed has

always been professional. I should note that.

Mr. Inslee?

Mr. INSLEE. Thank you, Chief. I want to ask you about the extent of litigation related to the decisions by the Forest Service. I

got to do some digging and I found a GAO report that said in 2001,

out of 1671 hazardous fuel reduction projects there were a grand

total of 20 projects or about 1 percent had been appealed and none

had been litigated. Zero had been litigated. And then I looked at

this issue that Mr. Hansen brought up and he said there were

5,000 pending lawsuits at the Forest Service, and I went to take

a look at what those were about and I found that the Forest

Service documents said that even though you have probably 5 to

7,000 environmental assessments on various projects a year, you

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only have 119 cases pending regarding NEPA and 91 regarding the

National Forest Management Act and a lot of those overlap.

A lot of those have both NEPA and the Forest Act both in them

of course. You have got somewhere from one to 2 percent that appears to me at most of cases that end up in litigation where you

have had some environmental assessment. Are those numbers from

the GAO and the Forest Service about in the ball park or what information could you provide us?

Mr. BOSWORTH. I would be happy to check those out carefully. I

was just listening, I don’t think they would be out of the ball park.

They sounded realistic to me, but I need to check that specifically.

Mr. INSLEE. Given the fact that you know you have competing

constituencies interested in the forests, if you are in a 1 to 2 percent level of controversy that ends up in a court system, does that

really strike you as unusual or not to be expected when particularly when you are trying to do cuts in old growth forests?

Mr. BOSWORTH. Well, we are going to have lawsuits. That is not

my concern. My concern is the evolution of the process, the length

of time that it takes for us to work our way through all the process

and, in some cases, ends up by itself eliminating the project where

we never made a conscious decision to move forward with the

project, but just the fact that it took us so long to work our way

through and we had the challenges whether appeals or lawsuits

really end up—the decision ends up being made by default rather

than having conscious decisions made to do the right things. And

in many cases, people don’t recognize that there are environmental

consequences, adverse environmental consequences to no action.

Mr. BOSWORTH. And when decisions are made by default, that is

not what the people expect from us.

Mr. MCINNIS. I want to ask you about a way to try to reduce that

controversy, if you will, taking the Northwest as an example. Many

of us out in the Northwest feel that we have an opportunity to reduce the controversy by trying to move timber harvest activities

away from the old growth and mature forests down to the younger

forests where we can do thinning, which can allow both resource

extraction—in fact, it has been estimated that we can get

600,000,000 more feet out a year in some of those lower, younger

forests through thinning, commercial thinning, and at the same

time making it more likely that these younger forests will develop

quicker into old forest or late successional reverse characteristics

for habitat purposes. And we think this would be good not only for

the environment, but would be good for reducing a lot of the controversy in the Northwest, where people would rather see less cutting in the old growth and more in the young growth, if you will.

Is that something that the Forest Service is considering, is willing

to talk with us about? What are your thoughts in that regard?

Mr. BOSWORTH. Well, I am willing to talk—at any time— about

solutions that will achieve a broad base of public support that will

meet the needs of all sides. I also feel that what we thought we

had achieved with the Northwest plan 8 years ago was the balance

that had the support of a broad base of folks. It was the plan that

was going to move us forward and meet the needs of all sides, significantly reduce the amount of harvest that was being done, which

was fine, and also protect the spotted owl and the other species;

22

and yet, that lasted about 2 years before it became controversial.

And that is part of the frustration some of our folks have in trying

to work our way through in these kinds of things.

Mr. MCINNIS. Thank you, Chief.

Chief, before I go on, I just want to point out that one of those

1 or 2 percent that is on appeal is currently on fire in Colorado.

Mr. Tancredo?

Mr. TANCREDO. Yeah. That is really—we can talk about the actual numbers, how many or how much of your process is being impeded by the appeal and/or litigation process, but let’s just go

through one specific example, the Upper South Platte Watershed

Restoration Project. 1996 to 2000, we have the Buffalo Creek/Hi

Meadow fires. They burned a big chunk of 23,000 acres in Pike and

San Isabel National Forest, destroying 100 homes and other structures; watershed damage estimated in excess of $10 million.

In August 1999, the Forest Service begins to develop a fire management plan for thinning in the roadless and roaded areas of the

Pike National Forest. It goes from 1999 to 2001. 2001, in September, environmentalist groups appealed the plan. November

2001 to January 2002, the Forest Service negotiates a scaled-back

management plan with the environmentalist groups. March 4th,

2002, on the final day to appeal the plan, that the environmentalist

groups who helped negotiate the plan to begin with appealed it.

The Regional Forester rejected their appeals on April 2001. Of

course, there is nothing really now—we anticipated at that point

in time litigation would be filed, litigation would be undertaken by

these same groups, because that is their next step after all this, all

these obstacles that they put in the way; finally, they want to litigate. Well, now there is nothing really to litigate because the whole

damn forest is burning down. So there really isn’t a reason for

them to go to court at this present time, but this is one example

of how it works.

And I don’t know how many others are out there, but this is one

too many, and we want to do something about this. We have to do

something about this. We have to relieve you of the burden at the

point that we can interject ourselves into this. I think that is our

responsibility.

I would like you to comment on the concept of charter forests as

they may be able to affect—to actually affect the decisionmaking

process. I know that it really is nothing more than a concept. I

have a bill; I am not asking you to address that bill—you haven’t

even seen it, we just dropped it yesterday—but it is just one idea.

Our bill is just one way of looking at the whole concept of charter

forests. I would like you to just tell me what you think about the

general idea of giving greater flexibility to people on the ground,

to people in the area to manage that forest, relieving you of some

of the regulatory burden that is there initially, and whether you

think this is a way for us to go conceptually, not any specific bill

or anything like that.

Mr. BOSWORTH. Well, first I would like to thank you for talking

about the South Platte watershed, because I was going to talk

about it at some point in here through a question, if I could, because I think it is an extremely good example.

Mr. TANCREDO. You may. Go right ahead.

23

Mr. BOSWORTH. It is an extremely good example of the problem

that faces us. If we had been doing field treatment for the last 8

or 10 years in there, we would still have a fire. That fire would be

burning entirely differently than what is burning now, and it would

be one that wouldn’t be threatening homes, in my view, if we had

been doing the work. I have said that we spent $40 million in fire suppression costs

on the Buffalo Creek fire and High Meadows fire. Do you know

what we can do with $40 million in terms of trying to treat the

land? Especially if we didn’t spend half of it on planning, we would

be able to get a lot of work done out on the ground that would help

communities from catastrophic wildfire and help protect municipal

watersheds.

So, I mean—the South Platte is a great example. It is on fire

right now. You are right, there is no need for us to proceed now

with fuel treatment because the fuel is gone.

As far as charter forests, I think that the notion of charter forests has a fair amount of potential. I mean, the idea of—it is a sort

of skeleton idea that we are still trying to put some flesh on the

bones to really get—and we are looking for ideas on how that

might work, and I think this Subcommittee held a hearing on some

of those ideas. And any time that we think we can get greater flexibility for our line officers in the field, in my opinion, that is good.

I believe we have good line officers out there that work with the

public, and so the more flexibility we can give them, I think that

is good.

My only concern about charter forests would be I don’t want us

to sit back and wait until we have identified charter forests and

then 10 years later learn from them before we try to fix the process

problems that we have right now. So I think we need to continue

to have the dialog about charter forests, about whether it will

work, how we might put them together, how we might want to do

it, but at the same time try to move forward with fixing the processes that we have that are very difficult to work our way through

right now.

Mr. TANCREDO. Thank you.

Mr. MCINNIS. Thank you, Chief. I might also point out further

in that fire that we are experiencing today, which is now about

100,000 acres, that also includes acreage that was not designated

to be thinned, but would have been protected had the designated

acreage had been thinned—would have been thinned. So now we

have a pile of ash of areas that we thought were in good shape and

didn’t need to go in there and were almost of a wilderness-type setting, and they are gone. And I would guess that the youngest person in here—for example, from my parents’ home, the mountain

that they viewed for all of their life, that the youngest person in

this room may be lucky at the later stages of their life to see that

same vegetation come back.

So, let’s see. Mr. Udall?

Mr. TOM UDALL. Thank you, Mr. Chairman.

Chief, you mentioned, when you were asked about gridlock problems, what was it that was causing them, and one of the things you

said was doing work that doesn’t improve the decision, that you

don’t—you don’t like to do that additional work and the costs that

24

it entails. And that seems to me to be a really fine balance in terms

of the management of your agency and your people that are on the

front line as to how much you do, how much public involvement,

and those kinds of things. I mean, I don’t really see that as subject

to a law that, unless we were doing something collaborative—as

you are aware of, there are collaborative—that we are discussing

the idea of collaborative legislation. And I would invite my colleague, Mr. Tancredo from Colorado, to join me and Mr. Simpson

and Mr. Otter and others that are—and my cousin here that are

discussing collaborative ways.

But it seems to me when you talk about doing work that doesn’t

improve the decision, it is hard for us to pass a law that says, you

know, don’t do work that doesn’t improve the decision. That seems

to be a management issue within the Forest Service. Could you

comment on that? I mean, you know, people—go ahead, see if you

can.

Mr. BOSWORTH. OK. Well, first I would like—let me just—in

terms of the problem, you know, there are lots of parts of the problem, but essentially to me the problem is—is that we have stone

age rules we are working with, and we are in a dot.com world

today. The rules that we are dealing with were developed 30 years

ago in a lot of cases. When I think back of what was going on 30

years ago, you know, I was using a slide ruler, for crying out loud.

You know, we didn’t have things like the Internet. We didn’t have

GPS or GIS. We didn’t have the capabilities that we have today.

And we have a huge amount of information today because of the

technology changes that we didn’t have years ago, but yet we still

are trying to—we are trying to gather all that data, all that information we have the capability of gathering, and make decisions

using everything because we can or because it is there.

I don’t believe that it is Congress’s job or responsibility, or I have

no expectations that Congress solve that problem for us. All I want

from you is some support and some advice on where we might be

able to help with some of the analysis that is excessive. And, again,

a lot of that is evolved because of case law, because we lose a lawsuit that said we need to go out and gather more data or more information. So then on all of our future projects we go out and gather that data or do that analysis, and then we lose a lawsuit somewhere else that says, well, you didn’t consider the Beschta Report.

And so now we go back, and now all of our documents consider the

Beschta Report. Then we have a lawsuit that says, you need to go

gather soil samples in every drainage even if you get a log with a

helicopter, so we go do that on all of them.

And so it is the continuous piling on of additional requirements

that we put on ourselves in some cases, or that we have evolved

to through case law in some cases.

But, no, I don’t expect Congress to pass a law to say that this

is the limit of your analysis.

Mr. TOM UDALL. Chief, the other thing you mentioned was adversity to risk. And I presume you are talking about employees

within the Forest Service, the way you discussed it, who aren’t

willing to take the risk; and they are worried about the short-term,

and then that has a long-term impact. I—once again, that seems

to be an internal management issue. I mean, you need to empower

25

your Forest Service supervisors and people on the front line to take

those risks that need to be taken to get the forest healthy, to prevent the kinds of things that are happening in Colorado and New

Mexico today. And I don’t—I don’t see a specific law there either,

you know, passing a law saying employees take more risks.

I mean—and I would be willing to admit, I think Congress is

part of the problem, because when some of your supervisors are

courageous and are bold and step out there and do something creative, Members of Congress go and get them fired. So, you know,

it is a—as you move up the Agency and you do those kinds of

things, it is a tough thing.

Do you want to comment on that?

Mr. BOSWORTH. Well, yeah. I think our organization, like any organization, has quite a variety of different views. You know, 35,000

employees we have, we pretty much reflect, I think, what is out in

the general populace.

I believe that most of our employees are willing to take risks, but

we put a lot of processes in place that require them to do some

things that would be risk-adverse. An example would be that if we

can’t predict almost 100 percent what the consequence of a decision

will be, we are very vulnerable to losing a case in court.

It is impossible to predict 100 percent, and I am not sure that

it is a smart thing to do, to spend all of our money trying to be

100 percent sure of what the consequences are going to be. It would

make more sense to me to spend a lot less money on that, monitor

carefully, and make adjustments as you go.

Our processes really don’t allow for that. I think things like the

Endangered Species Act, for example, or at least the implementing

regulations in our processes really require very little short-term

risk. In other words, you can’t do some things that are going to—

or may have an effect, or you have to be very, very, very careful

if you are going to do something that may have an effect even if

what you are trying to do is going to be of a long-term benefit to

that particular species.

So I don’t want to throw it all on the fact that the Forest Service

folks aren’t willing to take risks. I think many of our folks are willing to take risks, but we have put a lot of disincentives in their

way to be able to take the appropriate kinds of risk.

Mr. TOM UDALL. Thank you, Chief.

Thank you, Mr. Chairman.

Mr. MCINNIS. Mr. Udall, with all due respect, I am not aware of

any case where a Congressman called up and got a Federal forest

employee fired. I don’t think that —

Mr. TOM UDALL. Oh, there are numerous instances.

Mr. MCINNIS. Chief, do you—

Mr. TOM UDALL. Mr. Bosworth—

Mr. MCINNIS. Let me ask you, Chief—

Mr. TOM UDALL. That puts him in a tough political situation.

Mr. MCINNIS. Mr. Udall, I have the floor. I have the floor. Now,

it is a sensitive point with me.

Chief, let me ask you this: If any Member of Congress called you

up, and on the merits of that complaint alone—not on other merits

that may necessitate the firing—although, I don’t think very many

26

Federal employees ever get fired. Chief, would you terminate somebody based on a phone call from the Congressman?

Mr. BOSWORTH. Would I? No, I wouldn’t.

Mr. MCINNIS. Are you aware if these terminations have taken

place while you have been in the Administration—

Mr. BOSWORTH. I have never been called—

Mr. MCINNIS. —because of a call of a Congressman?

Mr. BOSWORTH. I have never been asked to fire a Forest Service

employee by a Congressman. I have been asked to move a Forest

Service employee or two.

Mr. MCINNIS. Well, that is appropriate. I mean, there are some

times where you—

Mr. TOM UDALL. Oh.

Mr. MCINNIS. And let me clarify that.

Mr. BOSWORTH. Nobody really understands the—

Mr. MCINNIS. Sure. And let me clarify that, Mr. Udall. If you

have a—for example, in our community, in the community that I

grew up in, If we have got a forest—and a lot of times our forest—

our regional forest supervisor is brought in from out of the area,

and if they have a difficult time with the community, and the community is upset, I feel an obligation to relay that message to the

Chief. But I think that the Civil Service System and others give

protections out there. So I don’t want this fear laid out there that

all we do is pick up a phone and call, and the Chief terminates

somebody.

Mr. BOSWORTH. And if I may, I would also —

Mr. MCINNIS. Go ahead, and then we will go on to Mr. Hayworth.

Mr. BOSWORTH. I would also like to say that while I have been

called and asked to move somebody, I have never moved anybody

based upon a request from a Congressman. Not that I don’t respect

your advice a lot, but —

Mr. TOM UDALL. That is good. Hang in there and keep doing it.

Mr. MCINNIS. Well, now, to clarify that, he has not gotten a call

from me to move anybody either.

So, Mr. Hayworth.

Mr. HAYWORTH. I thank you, Mr. Chairman.

And, Chief, I don’t know, maybe some of those calls will be coming in in the days ahead.

To get this out of personalities and the employment situation, it

seems to me we have an essential problem here. Does the process

gridlock you have described limit your ability as the Forest Service

to protect communities, watersheds, and old growth forests from

the forces of catastrophic fire?

Mr. BOSWORTH. I believe they do. I believe that—I think that the

example in Colorado right now is a good example. If our processes

were more simplified, we were able to make more decisions more

timely and be able to get a larger percentage of the dollars that are

appropriated to us on the ground and less in the office doing analysis, I believe we would have many situations where a fire would

not burn through the area in the catastrophic way like it does, and

that it would be the kind of fire that is much more light on the

land. So I think there are numerous situations where that would

be the case.

27

Mr. HAYWORTH. Chief, I want to thank you again not only for

coming down to visit with us today, but the chance we had to visit

informally in the past on some issues. And, again, I commend the

Chairman of the Subcommittee for next week’s hearings on the

new Education Land Grant Act, and I just want to return to that

briefly in the time allotted to me.

Let me congratulate you. I understand that ChattahoocheeOconee National Forest in Georgia will complete the first grant

under the act, passed unanimously by this House and by the Senate, and signed by President Clinton in his final few days in office.

And what is gratifying, at least in terms of this Georgia experience,

is that the entire process from the school district application to the

conveyance of the land has taken less than a year. And so I think

we have an example of how things were envisioned as working, certainly as the author of the legislation. There is no gridlock there.

And we have spoken informally, and indeed I have been honored

this morning to talk to the Under Secretary for Natural Resources

at the Ag Department, Mack Gray, about what has transpired in

Arizona. School districts have applied I think specifically about the

Grand Canyon District. The applications have had no action taken

on them, and there is a prime example of the gridlock and inertia

that we are talking about.

Chief, from your perspective, and the gridlock—and you said

cause No. 3 is the Forest Service itself, Forest Service culture.

Could you explain why the similar projects with similar intent and

identical processes receive such disparate treatment?

Mr. BOSWORTH. My understanding is—is that the project on the

Chattahoochee-Oconee actually started—the EA actually started 5

years ago under—and I believe they were trying to do this under

the Township Act. And when the legislation was passed, they

thought that would be a better tool to accomplish it with, and so

they moved forward with trying to do it under the more recent legislation. But the work the EA—the work I complain about the

amount of analysis and some of these kind of things, that actually

started 5 years ago in Georgia, if my information is correct.

Mr. HAYWORTH. Chief, do you see a difference as well? Some of

us ran for this job because of what was perceived to be a war on

the West in an effort to so restrict the use of the forest so as to

disallow just about every human involvement, it would seem, at

some juncture. And you mentioned earlier litigation. Is there—has

there just grown up, in terms of the risk-averse behavior, especially

in forests in the West—has there been a kind of, I guess, a group

thing that has gone on that says, well, gee, we have to deal so

much with the litigation, we have to deal with fire danger. Boy,

this education thing, it is nice, but it is not urgent; therefore, its

importance drops further down the list in terms of, for lack of a

better term, public policy triage or priorities?

Mr. BOSWORTH. Well, I would have to speculate, because I

haven’t sat down specifically with the folks, our Forest Service

folks, in, say, the Tonto National Forest to find out where they

have that in their priority list. I know that when those folks on the

Tonto National Forest are trying to sort through with several million visitors a year that are coming onto the national forest, they

are trying to be good hosts, too, and try to deal with the fire situaVerDate 11-MAY-2000 12:09 Mar 14, 2003 Jkt 000000 PO 00000 Frm 00031 Fmt 6633 Sfmt 6602 80160.TXT HRESOUR1 PsN: HRESOUR1
28

tions like they are dealing with, that something like that may not

be as high priority in their mind. And then, frankly, our funding

levels sometimes don’t allow for some of those lands projects, landstype issues. That is one of the areas we are historically underfunded in.

So that may be part of the problem, it hasn’t been a higher priority. And we have heard you are concerned about it, and we are

making sure that the folks out there understand that concern that

we move forward. I think we can work our way through and make

that work well.

Mr. HAYWORTH. Thank you, Chief.

Thank you, Chairman.

Mr. TANCREDO. But you have to call and get somebody fired

there.

Mr. MCINNIS. Mr. Udall.

Mr. MARK UDALL. Thank you, Mr. Chairman.

Chief, I wanted to move, after preliminary remarks, to the overall report. But I do just want to say that those of us from Colorado,

I think, feel today particularly sadness and despair in the sense of

helplessness when it comes to this fire in Colorado. As we look to

understand the causes of it and then to look toward problem-solving for the future, it is only human to begin to look at places to

point fingers and place some blame.

I think there is probably a lot of blame to go around, but I think

we could also put some of the responsibility on Mother Nature for

what is happening in Colorado. We are in the throes of a 4-year

drought cycle. The old-timers say it is the fiercest drought we have

seen in over 100 years, and we have had very dry, hot and windy

weather, which has compounded the process.

So my appeal to all of us is to continue to work together to find

ways to return our forests to a healthier condition and prevent,

hopefully, these kinds of fires over the long term. I think there are

a lot of really great ideas to move us in that direction, but if we

face off and put different groups and stakeholders in the corners

of the ring, and we have four or five different stakeholders in different corners of the ring, I don’t know that we are going to be able

to move in the direction you have suggested we can move.

We just received the report in the last, I think, 24 hours. I

haven’t had a chance to fully digest it. I look forward to looking it

over. But in your comments you said that you were going to begin

to act, not just to review things. And what do you consider that you

would do next along the lines of bringing action to the table?

Mr. BOSWORTH. Before I answer that, I would like to go back to

the first part of your comment.

Mr. MARK UDALL. Sure.

Mr. BOSWORTH. I don’t want and I don’t think it is valuable to

sit back and try to point fingers at somebody that might be at fault

for this or that. I want it to be clearly understood that I believe

the environmental laws are good laws, and I also believe that most

people that question our decisions do it with a lot of concern and

care about how the land is being managed. So when people are

questioning our decisions through appeals or through litigation,

that is part of our democratic process.

Mr. MARK UDALL. Yes.

29

Mr. BOSWORTH. But we don’t have to have our processes internally so bound up that we can’t do those things faster and do them

with more thought for the future. We—that is why I would like to

have us take a hard look at these processes so that we can make

timely decisions and that people will have their day in court if they

really want to have their day in court.

I also believe that our processes are disincentives for people coming to the table to collaborate. You know, there are places around

the country that—the community groups that are popping up all

over the country, community-based forestry groups that really want

to work together, and they are made up of people from the environmental side, from industry, from business, from NGOs that really

want to work together for the betterment of their community and

for the lands that surround their community. Yet our processes are

very frustrating for them, because they will work together and

come up with a proposal and work hard to do that, and then it

takes us 2 years or 2-1/2 years to go through the stuff. You know,

they don’t want to come back and work every night or 1 night a

week for the next year when it takes us 2 or 3 more years to implement it on the ground. So we have got to make some changes that

will allow those things to happen in a more timely way, to encourage that kind of community-based collaboration that results in decisions that I believe are more satisfactory for a broader range of

people.

Mr. MARK UDALL. If I might interrupt you, I think that is in part

what my cousin, Mr. Udall from New Mexico, mentioned in regards

to conversations he is having with Congressman Otter and others

about how we value everybody’s input, but create that collaborative

environment and everybody pull together once the decision was

made.

Mr. BOSWORTH. In some cases if people can get everything they

want without coming to the table and working in a collaborative

way, then there is not a whole lot of incentive to come to the table.

And there are situations where these groups will work together,

and some will be involved, and then we will get the appeals and

the lawsuits that will delay the activity.

And so we need to look, and we will look, at ways that we can

make the community-based collaborative forestry approach work

better and to have more incentives.

In terms of steps that I want to take, there are a number of

things that we need to move forward with very quickly, I think.

One is that we have got to—as I said in my testimony, I want to

have our Deputy Chief get a team together to start looking at our

internal processes. There are some training kinds of things that we

need to do. Our folks need to be better at project management.

How do you deliver a project within time, within budget? We need

to put some training into our folks along those lines. I think that

we have a person that is located at the Council of Environmental

Quality right now, one of our Forest Service folks, to work as a liaison between us and CEQ to see what things can take place within

our Forest Service regulations that will help, and then what things

that maybe CEQ could look at within their regulations.

I met with the Director of Fish and Wildlife Service within the

last 2 days to talk about opportunities that we might have to do

30

to look at our regulations that we live with and the Fish and Wildlife Service has responsibility for that will also try to see if there

is some ways that we can make the process work more effectively.

So those are some of the things that we need to do right away.

Mr. MARK UDALL. Excellent. That is helpful to me, and I look forward to hearing more about those steps you are going to take and

working with the Committee to support you in that process.

Thank you, Mr. Chairman.

Mr. MCINNIS. Mr. Otter.

Mr. OTTER. Thank you, Mr. Chairman.

Chief, once again, thanks for being here, and I certainly appreciate your responses thus far to both sides. I was told some time

back, in fact I think it was a year, maybe 2 years ago, of an incident that happened down in northern California, and it seems as

though there was a process that the Forest Service had gone

through to design a program cut, put it out for bid. Everything

went through the process, and it was either—maybe it was a disease, or perhaps it was a salvage, and I apologize for not knowing

the whole story firsthand, but at one point—and I guess it must

have been a burn, because we know that we have got about an 18-

to 24-month window. When we burn through a forest, we either get

in and get it out in 18 to 24 months, or it is gone. Is that not correct?

Mr. BOSWORTH. That is generally correct. Yeah.

Mr. OTTER. Anyway, there was a drop-dead date on it when it

wasn’t going to be any good.

Anyway, as the process moved forward, and the bid had been let,

and the cut was to begin, then a group came in and stayed the beginning of the cut, the beginning of the salvage, and said, for whatever reasons, maybe not all the rules and regulations were followed

to their satisfaction. But it went before this judge—and this is

what was intriguing to me— and the judge says, well—he says, you

know, you may well be right. Perhaps this report is a bit deficient,

and you have a good reason to delay this, but I just want to tell

you this. You—this intervening group—are going to put up a

$900,000 bond in order—just in case we find out that it is not true,

and just in case that we actually lose what value is there, just in

case there is an economic damage. And so if you are going to enter

this as an aggrieved person and delay this process, which Mother

Nature is going to take her toll within a 24-month—18- to 24-

month period, then you are going to have to put up a bond.

Do you think that perhaps something like that—that we could

codify something like that and so some of these—Mr. Inslee is

right, and I never, ever thought I would hear anybody in Congress

talk about there is not enough lawsuits. I was kind of shocked at

that whole process that we went through that we need more lawsuits, and 1 percent isn’t enough. It is not doing enough damage

to the process already.

But anyway, I am wondering out loud here if there can be some

kind of a sharing of the pain and a sharing of the burden for those

who would bring lawsuits and then just to delay the process, get

them to the front door, settle the lawsuit after we have gone

through all that process. In fact, I one time was thinking of introducing a bill in Idaho that said that the lawyer that brought the

31

lawsuit, if the plaintiff couldn’t pay it off, the lawyer had to pay

it off, and that didn’t get very far. We had too many lawyers.

Anyway, back to my codification. Could we codify some kind of

that rendering the process more fair or more reasonable?

Mr. BOSWORTH. You know, I have given some thought to something like this some in the past, although I haven’t—I am certainly

not an expert on the ramifications of something like that. I will

admit that I am somewhat uneasy of doing anything that doesn’t

allow people to have an equal access to justice, although right now

it feels to me to some degree like there is one side that—you know,

there are some people that have an interest in national forests that

don’t have access to the courts over some of the decisions that we

make, and anything that we can do to level that would probably

be good.

I don’t know if that is the right solution that you are proposing

or not. I would be more than happy to give it some thought and

maybe get back with you and talk with you. I believe that anything

that we can do, or most anything that we can do, that will encourage or create incentives for people to come to the table and—or,

better yet, come to the woods together, with differing positions and

points of view, and try to search for solutions and collaborate I

think is good. If something like that would help as an incentive to

get people to come to the woods and collaborate, then I think that

is something that should be thought about, because right now there

are just too many incentives to not come to the table or come to

the woods and try to sort through what the choices might be.

Mr. OTTER. Well, I think in your earlier statement you made it

very clear and it was very profound that you are not always going

to satisfy all sides. And many times folks that are engaged in the

process, when they didn’t get 100 percent of what they wanted, and

they only got a percent of what they wanted, then they still engage

in the legal—in trying to get a legal decision rendered on the process that their negotiation failed at and their collaboration failed at.

I would just be—my main concern is no matter what we come up

with to engage in collaboration, no matter how hard we extend ourselves across the table, as Messrs.. Udall and myself and Mr. Simpson and Ms. McCollum and a few others have done, no matter how

hard we try, there still is going to be one group out there by the

name Alf or Elf or something that can still file the lawsuit and still

stop the process.

And so if it were truly good, well-intended, reasonable people

meeting, trying to come to a common-sense solution, and if we

could count on that, I wouldn’t have a problem. But I hope that in

your process of looking these things over, you will look at what we

can tweak legally to make those who would endanger the entire

collaborative process simply by bringing lawsuits pay for the punishment that they are delivering to us.

Mr. BOSWORTH. I would be happy to look at that and to work

with you on that. Again, the frustration is that when we try to

bring people together and try to come up with solutions, and then

we come up with a solution that all people have bought into, and

then there are folks that are way outside of that that can stop the

projects or significantly slow them down to where, you know, the

32

decisions are made by default, that isn’t working, and that is just

simply not good government, in my viewpoint.

Mr. OTTER. Thank you, Mr. Chairman.

Mr. MCINNIS. Thank you.

Chief, if you don’t mind, we would like to take—we will adjourn

this in about 15 or 20 minutes. Is that all right if we go another

15 or 20 minutes?

Mr. BOSWORTH. That is just fine. I could talk about this all day.

Mr. MCINNIS. Very well. I know you have got a lot of priorities,

and I know you want to pay some attention to what is going out

there with those fires, but that will give us a few more minutes.

And, Mr. Inslee, you said you would like to make some more

comments?

Mr. INSLEE. Thank you, Mr. Chairman.

Just before I ask a question, I want to correct a misinterpretation my friend Mr. Otter suggested, that we needed more lawsuits.

I think actually it is the reverse. In heaven there are no lawsuits,

and we would like to bring heaven to Earth.

But we have seen in the Northwest repeated instances where

citizens had to go to court to get the Forest Service to follow the

law, And this Beschta case that you have alluded to—the Chief has

alluded to, I think, is one example of that where four district

courts—it took four judges to tell the Forest Service on four separate occasions to follow the law. And now I am pleased to hear that

the Chief—that you are incorporating that new science in your assessment, but it took four judges to tell the Forest Service to finally

follow the law, and I think that is unfortunate.

I want to ask about the Colorado fire, because there has been reference to the Upper South Platte Project, and it has been suggested that somehow this cataclysmic fire which is causing such

devastation in Colorado right now is somehow due to your failure,

Chief, or Congress’s failure. And my understanding, in Colorado—

although I haven’t been there during the fires—this is the worst

drought in over 100 years. There has been absolutely a terrible

combination of wind and lack of moisture. The fire has jumped the

Colorado River and a four-lane interstate. It is a huge cataclysmic

event, and that the South Platte Project, two-thirds of it could have

started last September. There was an appeal of a third of it last

September. But at minimum it would have taken 5 to 8 years to

implement, in any event, and then it appears clear this project

would not have been done by the time this fire blew up.

I want to make sure I understand your testimony. You are not

telling us that if this appeal hadn’t have been filed, that we

wouldn’t have a big fire in Colorado, are you?

Mr. BOSWORTH. No, not at all. In fact, I think I said if we would

have been actively managing that 10 years ago and accomplished

fuels treatment in a broad landscape way for the last 10 years, we

could have made a difference.

Mr. INSLEE. Right, if we would have started 10 years ago. And

I think it is important to note that the reason for the need for fuel

suppression is because the Forest Service and Congress and Republicans and Democrats, you know, we didn’t understand the science,

and we put out fires for decades and decades and decades, which

allowed this fuel to buildup on the forest floor, which created these

33

huge dynamitelike conditions because we didn’t follow the science,

and we made rash judgments without thinking about the science.

And I think one of the frustrations we all have in decisionmaking

right now is that following the science sometimes can be a pain. It

is just a pain to have to follow the science. But we didn’t follow the

science for 30 years, and now we are in this situation where these

forests are blowing up. And I just want to make that kind of editorial comment.

I want to ask you one more thing, if I can, and that is about the

drought in Colorado. According to the report that the White House

issued about 2 weeks—a week ago or 2 weeks ago about global

warming, they concluded that, in the best scientific minds of the

Federal Government—concluded that global warming is happening;

that it is caused by a large— significant amounts by human activities; that global warming will cause significant climactic changes in

the United States, and among those will be repeated and more severe droughts in the Western United States that will have not only

the result of reducing our irrigation supplies due to lack of

snowmelt, but would also, as I understand the report—would expose our forests to much more cataclysmic fires, as we are experiencing in Colorado right now, because of the very low moisture levels in the forest. And yet, to the Nation’s chagrin, the President of

the United States said he wasn’t going to do anything about it. He

decided that we just had to get used to it. He decided that we just

had to have a strategy of adaptation rather than facing this, what

I consider an imminent threat to our forest ecosystems and a lot

of things we hold dear in this country.

But I would like to ask you what the Forest Service is doing in

its decisionmaking to deal with global climate change, what you

think are the challenges it poses to you, and basically what your

advice has been to the President in this regard, who, as far as I

can tell, has just decided to ignore the problem. I would like your

thoughts in that regard.

Mr. BOSWORTH. OK. I would be happy to do that.

I would first like to go back to your comments about the Beschta

Report, because I see the world maybe a little bit differently than

that.

First, there were four court cases. Two were decided in the

Forest Service’s favor; two were decided in the other way. And the

two said that it was needed, you know, that need to be referenced,

and two said that it wasn’t. There is a difference of opinion when

you go to different courts, and, to me, it is not as clear as simply

whether we are following the law. The law isn’t very specific about

whether you are going to follow the Beschta Report. Our folks, they

do the analysis, but, again, we end up adding on and adding on

and adding on. And I believe that makes my point about where we

are headed in terms of some of these situations.

And I also would say, as I said in my testimony, the Beschta Report was not a peer-reviewed document, it wasn’t published in a

journal, in a scientific journal, it was just an opinion piece by some

very good scientists, but it was an opinion piece. It wasn’t peer-reviewed. And yet now we have to make sure that we analyze that

and consider that and document that and put it in the EIS. So I

just wanted to clear that up.

34

Mr. INSLEE. Chief, can I interrupt you just for a moment?

I am sorry, Mr. Chair. Go ahead. I am sorry. I will come back.

Mr. BOSWORTH. I was just going to go to the global warming discussion. So—

Mr. MCINNIS. Gentlemen, Mr. Hayworth would also like a few

minutes; so, if we can wrap up this exchange in about the next 3

or 4 minutes, that would be great.

Mr. BOSWORTH. Let me just finish on the global warming question. We do have research going on in our Forest Service research

and development program that ties in with global warming, but to

me one of the most urgent things that we can do is make sure that

the way we are managing the national forests will be managed in

a way that will be able to take into consideration climate changes.

If you have—if you had the situation of the national forest 100

years ago, there were much fewer trees on the land. You know, a

lot of these drier pine types we have around the interior West may

have had 20, 30, 40 trees per acre; now some of them have 500,

600, 1,000 trees per acre. When you do have drought conditions

and you have that many trees sucking up the moisture, those trees

get weakened. They are more susceptible to insects and diseases.

They die. You end up with a much increased fuel situation.

And so our job then makes sense that we do the thinning from

below that needs to be done, that we put fire back in a controlled

manner, that we keep more of the fuel loading down so that when

you have the inevitable fires, they are going to burn in a different

way and not in the catastrophic way that many of these fires are

burning right now.

Mr. INSLEE. Thank you. We are hoping the President at some

point will join us in an effort to stop global warming instead of just

trying to clean up the forest.

But just one more comment, if I can, Chief, and this is a small

point, but I need to make it. Where I got the issue— the information about Beschta was your testimony, which says, quote, in four

of these cases, the courts have concluded that project decisions violated NEPA because the associated NEPA documents did not adequately document the Agency’s consideration of Beschta, close

quote. I just want to point that out, and I am sorry if I misinterpreted your comment.

Mr. BOSWORTH. That is correct. Four went one way, and two

went the other way. That is the actual facts.

Mr. INSLEE. Thanks, Chief. I appreciate it.

Mr. MCINNIS. Thank you, Chief.

And Mr. Hayworth.

Mr. HAYWORTH. Thank you, Mr. Chairman. I am so glad we are

not playing politics here at this hearing and are all working together.

Let me just make sure I understand, Chief, and maybe this is

somewhat the chicken or the egg argument. Whatever one’s dispensation on global warning, if I understood your comments just a

second ago, to deal with reducing the risk of catastrophic fire, if we

were to rank how to deal with the challenges we confront, effective

forest management would probably have more to do with alleviating some of the challenges we confront than theories in terms

of global temperature at this juncture.

35

Mr. BOSWORTH. Well, there is no question in my mind that the

best way for us to be dealing with the potential for catastrophic fire

around communities is active forest management, which primarily

would be removing some of the material, mostly smaller-diameter

material, from below and reintroducing fire in a controlled manner.

Mr. HAYWORTH. You know, it is interesting to me, when I was—

and before coming here, as a private citizen I recall reading accounts of testimony before this very Committee in a Congress

where control just happened to be on the other side, where folks

came here and testified that a fire corridor was developing from

Idaho to our border with Mexico because of our failure to effectively

deal with the fuel situation and effective thinning and effective

management. And I think the key distinction perhaps upon which

we can all agree, whatever disagreements may be the vagaries of

being 150 days out from the midterm or something to that effect—

but who iscounting—is the fact that sound science should always

be utilized. And I know it doesn’t happen on your watch, but the

Chairman and others have made points, and we have seen sadly

in Washington State the planting and false reporting of Lynx Air,

in Fish and Wildlife situations by Fish and Wildlife biologists.

When politics overtakes sound science, no matter the number of

lawsuits, no matter how close in proximity we may be to another

political campaign, when we substitute a motion for sound science,

we sacrifice the well-being and the intent of what should transpire,

and we see the results in catastrophic ways.

I yield back.

Mr. MCINNIS. Mr. Hayworth, I might point out that those employees involved in that Lynx thing were not terminated, despite

any request by Congress; in fact, they got a pay raise and a

bonus—bonus and a promotion. So I thought I would just point it

out.

Chief, let me mention a couple things. I would like to get a little

more information on the carbon sequestration program. I know we

don’t have time today, but that deals with some of the global

warming. We got into this global warming issue here, and we could

have a hearing all on that alone. It is very interesting on both sides

of that issue, and at some point I hope we get to discuss it in the

future.

I want to mention one thing, and that is if you have some specific

things you think Congress can do to assist you in solving the process gridlock—I can assure you that I see as much gridlock in Congress as I do in some of these agencies, so we are not speaking with

clean hands in regards to that. But that is kind of the political nature we have. We don’t—it is kind of tough, but I appreciate that.

And, again, I just—I just want to tell you, I mean, I was there. I

was on Storm King. I have been on a number of your situations,

your fires out there. And you guys, boy, when the siren goes off,

you heed the call, you have heeded it well, and I just want to compliment you and the community.

And you know what is neat? We had mutual aid. So until we

were able to get your type on and your professionals in there, our

local professionals from several different communities came, and it

was—I guess we were still a little gun-shy from Storm King. And

36

for those of you in the audience, that is where we had 14 of our

firefighters die on the mountain.

So, anyway, Chief, kudos to you for what you are doing out there,

and Godspeed for your men and women out there fighting that fire.

It is a dangerous thing, and we appreciate very much your time

today. Appreciate the time of the Committee. The Committee now

stands in adjournment.

Mr. BOSWORTH. Thank you.

[Whereupon, at 11:47 a.m., the Subcommittee was adjourned.]

[The U.S. Forest Service Report, ‘‘The Process Predicament,’’

submitted for the record follows:]

37

38

EXECUTIVE SUMMARY

Despite a century of devotion to conservationism, the Forest Service today faces

a forest health crisis of tremendous proportions:

• 73 million acres of national forests are at risk from severe wildland fires that

threaten human safety and ecosystem integrity.

• Tens of millions of acres in all ownerships are threatened by dozens of different

insects and diseases.

• Invasive species are spreading at an accelerated rate, degrading an increasing

proportion of forests, rangelands, and riparian habitats.

Unfortunately, the Forest Service operates within a statutory, regulatory, and administrative framework that has kept the agency from effectively addressing rapid

declines in forest health. This same framework impedes nearly every other aspect

of multiple-use management as well. Three problem areas stand out:

1. Excessive analysis—confusion, delays, costs, and risk management associated

with the required consultations and studies;

2. Ineffective public involvement—procedural requirements that create disincentives to collaboration in national forest management; and

3. Management inefficiencies—poor planning and decision-making, a deteriorating

skills base, and inflexible funding rules, problems that are compounded by the

sheer volume of the required paperwork and the associated proliferation of opportunities to misinterpret or misapply required procedures

These factors frequently place line officers in a costly procedural quagmire, where

a single project can take years to move forward and where planning costs alone can

exceed $1 million. Even noncontroversial projects often proceed at a snail’s pace.

Forest Service officials have estimated that planning and assessment consume 40

percent of total direct work at the national forest level. That would represent an

expenditure of more than $250 million per year. Although some planning is obviously necessary, Forest Service officials have estimated that improving administrative procedures could shift up to $100 million a year from unnecessary planning to

actual project work to restore ecosystems and deliver services on the ground.

The Forest Service is deeply committed to the principles of sound public land

management in a democracy—long-term planning on an ecosystem basis, extensive

public involvement, interagency consultation and collaboration, and ample opportunities for public redress. In the 21st century, Americans have the tools and techniques they need to work together to stop invasive species, reduce the danger of catastrophic fire, restore ailing watersheds to health, and enjoy their national forests.

Permitted to use the tools and apply the techniques of modern management, Americans can look forward to a future of healthy, resilient ecosystems all across their

national forests and grasslands.

It is time to tailor the Forest Service’s statutory, regulatory, and administrative

framework to the new era of public land management. Part of the solution will be

internal. However, the problem goes far beyond the range of control of any single

agency, or a single branch of the government. The Forest Service will need to work

with partners, both in and out of government, to establish a modern management

framework. By working together with partners to create and operate within such

a framework, the Forest Service can focus more of its resources on responsible stewardship and thereby improve public trust and confidence in the agency’s ability to

care for the land and serve people.

THE PROCESS PREDICAMENT

HOW STATUTORY, REGULATORY, AND ADMINISTRATIVE FACTORS AFFECT NATIONAL

FOREST MANAGEMENT

In December 1995, a severe winter storm left nearly 35,000 acres of windthrown

trees on the Six Rivers National Forest in California. The storm’s effects created

catastrophic wildland fire conditions, with the fuel loading reaching an estimated

300 to 400 tons per acre’ten times the manageable level of 30 to 40 tons per acre.

The forest’s management team proposed a salvage and restoration project to remove excessive fuels and conduct a series of prescribed burns to mitigate the threat

to the watershed. From 1996 through the summer of 1999, the forest wrestled its

way through analytical and procedural requirements, managing to treat only 1,600

acres.

39

1See Six Rivers National Forest, ‘‘Megram Fire Recovery Plan,’’ appendix C, pp. C–23–28.

2 USDA Forest Service, ‘‘Historical Fire Regimes by Current Condition Classes,’’ (Washington,

D.C.: USDA Forest Service, February 2001), Website <http://fs.fed.us/fire/fuelman/data—summery—tables.pdf>. 3 USDA Forest Service, Forest Insect and Disease Conditions in the United States: 1999

(Washington, D.C.: USDA Forest Service, Forest Health Protection, December 2000), Website

<http://fs.fed.us/fire/fuelman/data—summary—tables.pdf>. 4 USDA Forest Service, ‘‘Public Forest Service Roads: ‘‘Seamless Transportation’’ (Washington,

D.C.: USDA Forest Service, April 2000). 5 USDA Forest Service, Rangeland Resource Trends in the United States: A Technical Document Supporting the 2000 USDA Forest Service RPA Assessment (Washington, D.C.: USDA

Forest Service, 2000), pp. 47–54. 6 USDA Forest Service, Rangeland Resource Trends, pp. 40–43.

By September 1999, nature would no longer wait. The Megram and Fawn Fires

consumed the untreated area, plus another 90,000 acres. Afterward, the forest was

required to perform a new analysis of the watershed, because postfire conditions

were now very different. A new round of processes began, repeating the steps taken

from 1996 to 1999.

Seven years after the original blowdown, the Megram project was appealed, litigated, and ultimately enjoined by a federal district court. The plan to address the

effects of the firestorm—a direct result of the windstorm’remains in limbo.

THE PROBLEM

Caught in a Bind

The Megram case example,1 encapsulated above, illustrates the process predicament faced by Forest Service decision-makers at all levels. As many Forest Service

employees see it, they are caught in a bind, where the very procedures they need

to follow to get them to their goal are keeping them from getting there.

Too often, the Forest Service is so busy meeting procedural requirements, such

as preparing voluminous plans, studies, and associated documentation, that it has

trouble fulfilling its historic mission: to sustain the health, diversity, and productivity of the nation’s forests and grasslands to meet the needs of present and future

generations. Too frequently, the paralysis results in catastrophe.

Inspired by conservationism, the Forest Service has, throughout its history, been

dedicated to protecting and restoring our nation’s forests and rangelands. Notwithstanding this devotion, today the agency faces a land health crisis of tremendous

proportions:

• 73 million acres of national forests are at risk from severe wildland fires that

threaten human safety and ecosystem integrity.2

• Tens of millions of acres in all ownerships are threatened by dozens of different

insects and diseases. In 1999, for example, the southern pine beetle infested forests on about 6.2 million acres in the South, including many national forest

lands.3

• The roads maintenance backlog is enormous, with more than a thousand bridges

classified as deficient in 2000 and more than a thousand miles of road becoming

unusable on average each year from 1990 to 1998.4

• The rate of introduction of new invasive weeds has been on the rise since the

1960s; once introduced, invasives such as cheatgrass and leafy spurge spread at

exponential rates. Today, more than 3.5 million acres of national forest land are

infested.5

• In the West, more than half of the rangeland riparian areas on the National

Forest System do not meet standards for healthy watersheds. Moreover, almost

one in ten acres in the Pacific states and one in six acres in the Rocky Mountains and Plains states is making no progress toward improvement.6

The Forest Service has taken a number of important steps to address these rapid

declines in forest health. For example, the agency recently completed the implementation plan for the 10–Year Comprehensive Strategy for Reducing Wildland Fire

Risks to Communities and the Environment, in cooperation with the Western Governors Association and a host of collaborators from professional organizations, counties, tribes, resource users, and environmental interests. The agency also has vigorous pest management and watershed restoration programs, often in collaboration

with federal, state, and private partners.

Notwithstanding the importance of such cooperative efforts, the Forest Service

will ultimately fail to reverse rapid declines in forest health and increasing wildland

fire risks unless the agency is able to more quickly achieve results on the ground.

And the problem does not end with forest health. Issuing permits, improving recVerDate 11-MAY-2000 12:09 Mar 14, 2003 Jkt 000000 PO 00000 Frm 00043 Fmt 6633 Sfmt 6621 80160.TXT HRESOUR1 PsN: HRESOUR1
40

7Six Rivers NF, appendix C, appendix C, p. C–23.

reational opportunities, addressing deferred maintenance needs, and a host of other

management responsibilities all require timely, effective decision-making.

Forest Service professionals are deeply committed to the principles of sound public

land management and the existing framework of environmental laws. They support

long-term planning on an ecosystem basis, extensive public involvement, interagency consultation and collaboration, and ample opportunities for public redress.

They work long and hard to hammer out agreements that everyone can live with.

But all too often, the regulatory and administrative framework the Forest Service

is bound by keeps the agreements from going into effect. Time, effort, and resources

poured into a project might ultimately yield nothing but paperwork, competent studies and documentation, but no results on the ground. In the Megram case example,

after initial setbacks, the appeals process resulted in sound documentation for the

proposed action; yet the project resulted in only 1,600 acres of fuels treatments before the 1999 Megram Fire severely burned much of the project area.7 It is not just

a matter of delivering more outputs (see the sidebar below); it is about getting anything done at all.

The essential question is this: Does the Forest Service have the statutory, regulatory, and administrative framework needed to cope with the land health crisis and

otherwise manage the National Forest System? Or will process delays keep the

Forest Service from reducing hazards and addressing emergencies, thereby putting

forest ecosystems and nearby communities at ever-greater risk—and ultimately preventing the agency from fulfilling its core mission?

IT’S ABOUT GOOD GOVERNMENT

The Coconino National Forest in Arizona is home to the northern goshawk. In

1996, the forest proposed thinning trees near a goshawk nest, partly to protect the

bird from fire hazards. The project was stopped because environmentalists protested. That year, a catastrophic fire destroyed the forest, including the tree with

the goshawk nest. ‘‘There was not a green tree left,’’ said a Forest Service biologist.

‘‘What the scientists said could happen, did happen, right in front of my eyes.’’*

If process keeps projects from restoring the land, the land ultimately suffers. At

stake are wildlife habitat and all of the other values that the Forest Service is

charged with protecting and delivering on the national forests and grasslands. By

streamlining procedures, the agency can reduce costs and increase its ability to do

more on the ground for healthy, resilient ecosystems.

Many values might or might not flow out of that, such as recreation, wildlife habitat, and timber. But the particular values are incidental to the core purpose—good

government. It’s about reducing waste and mismanagement. It’s about efficient, effective service delivery.

* Tom Knudson, ‘‘Playing With Fire: Spin on Science Puts National Treasure at

Risk,’’ Sacramento Bee, 25 April 2001.

Purpose of This Report

In 2001, shortly after being named to lead the Forest Service, Chief Dale

Bosworth appointed a team of Forest Service employees to explore whether national

forest management is indeed mired in process. The team reviewed the statutory and

regulatory framework for national forest management and examined the agency’s

own internal processes for forest planning and decision-making, based on:

• past reports by internal agency task groups and the General Accounting Office

(GAO);

• relevant past and ongoing studies, particularly a 1995 draft report under Forest

Service Chief Jack Ward Thomas (appendix A) and an ongoing business process

analysis of a Forest project (appendix B); and

• case examples from Forest Service field personnel (some of which are in appendix C).

In February 2002, the team presented its findings to Chief Bosworth. This report

is based on those findings. It makes no recommendations. Its purpose is simply to

set forth the problem: Statutory, regulatory, and administrative requirements impede the efficient, effective management of the National Forest System. As long as

they do, the Forest Service’s ability to achieve healthy, resilient ecosystems and otherwise meet its multiple-use mission will remain in doubt, undermining public confidence in the agency.

41

8Organic Administration Act (16 U.S.C. 475), as quoted in USDA Forest Service, The Principle Laws Relating to Forest Service Activities (Washington, D.C.: USDA Forest Service, 1993),

p. 6. 9Personal communication with Gerald W. Williams, National Historian for the USDA Forest

Service, Washington Office, Washington, D.C. 10M. Hummel and B. Fleet, ‘‘Collaborative Processes for Improving Land Stewardship and

Sustainability,’’ in Ecological Stewardship, vol. III, p. 99. 11 A relatively recent public survey suggests strong public support for noncommercial values

on the national forests and grasslands. Deborah J. Shields, Ingrid M. Martin, Wade E. Martin,

and Michelle A. Haefele, ‘‘Results from a Survey of the American Public’s Values, Objectives,

Continued

The scope of this report is limited. Important questions remain. How can barriers

to efficient, effective national forest management be removed without violating the

principles of sound public land management in a democracy? Who should remove

the barriers, and how? At least part of the problem is internal; how much of it can

be solved through internal agency reforms alone? Should interagency processes or

even statutes be improved? These are questions for the Forest Service’s leaders and,

perhaps, our nation’s democratic process to decide. This report makes a start by

simply identifying the problem.

Finally, this report is not a conclusive treatise on resolving land management

processes. Nor does it fault any particular entity involved in forest planning and

land management. Rather, it offers facts and examines past practices and ensuing

results. The Forest Service, over its hundred-year history, has earned a reputation

for conservation leadership and innovation. This report opens a dialogue between

the agency and interested publics to improve management efficiency while managing our natural resources within the spirit of the law.

BACKGROUND

Origins of the Problem

The original purpose of the forest reserves, embodied in the Organic Act of 1897,

was ‘‘to improve and protect the forest within the reservation’’8 in order to conserve

watersheds and timber reserves for the nation to call on when needed. The timber

reserves were needed after World War II. Other timber supplies were exhausted,

and there was a huge postwar demand for timber to help realize the American

dream of owning a single-family home. The national forests helped fill the gap.

From 1960 to 1985, the national forests met about 25 percent of U.S. softwood timber needs.

In the 1950s, some people began to question the Forest Service’s emphasis on timber production. They argued that other uses of the national forests, such as recreation, should have equal standing. The Multiple Use–Sustained Yield Act of 1960

provided a framework for balancing multiple uses, but it failed to quell growing controversy over national forest management.

At the time, federal land managers and many others believed that professional

expertise should guide decision-making on public lands. The Forest Service took

local opinion into account, but its philosophy was to ‘‘inform and educate’’ the public

on what was best for the land, in the expectation that people would ultimately ‘‘see

the light.’’9 However, the appeal to professional authority failed to satisfy growing

numbers of Americans. As one study put it, the traditional Forest Service approach

‘‘did not provide a way to surface differences, much less work through them.10 Increasingly, the public turned for relief to the courts and to Congress.

In the 1960s and 1970s, Congress passed many new laws and amendments to old

laws affecting national forest management, including the National Environmental

Policy Act (NEPA), the Federal Advisory Committee Act (FACA), the Endangered

Species Act (ESA), the Clean Water and Clean Air Acts, and the National Forest

Management Act (NFMA). Congress understood what was at stake. In the national

forest debate, social values were at issue; the underlying conflicts were often political. By facilitating public participation in national forest management, Congress

sought to create mechanisms for conflict resolution, thereby obviating the need for

direct congressional intervention to resolve disputes. To some degree, Congress

seems to have favored a complex public process over other, more efficient management models.

Each new law or amendment was driven by sound intentions. Each contained provisions that enjoyed broad public support. Some mandated integrated management

approaches that are widely accepted today as the foundation for ecosystem-based

management; others encouraged ordinary citizens to engage in Forest Service decision-making; still others placed more emphasis on individual values, such as undisturbed natural settings and native fish, wildlife, and plants.11

42

Beliefs, and Attitudes Regarding Forests and Rangelands’’ (Fort Collins, Colo.: USDA Forest

Service, Rocky Mountain Research Station, March 2001). 12 A process finalized with publication of the USDA Forest Service Strategic Plan (2000 Revision) (Washington, D.C.: USDA Forest Service, December 2000). 13 A principle often cited by Forest Service Chief Dale Bosworth. See, for example, Chief

Bosworth’s speech at the Forest Policy Summit in Grand Rapids, S.D., 15 August 2001 (online

at <http://www.fs.fed.us/intro/speech/2001/2001aug15–Blackfinl.htm>). 14Personal communication with Gerald W. Williams, National Historian for the USDA Forest

Service, Washington Office. The first extensive experience with public involvement came following the Wilderness Act of 1964, with about a quarter million public comments on the Forest

Service’s proposed wilderness regulations. The Roadless Area Review and Evaluation in 1973

generated the next big surge of public involvement—about 300 public meetings and more than

50,000 written and oral comments. In 1979, the new forest plans under NFMA generated hundreds of thousands of responses (such as letters) with millions of comments. For example, the

forest plan for Oregon’s Umpqua National Forest alone inspired 15,458 responses containing

215,680 comments. 15 Hummel and Fleet, pp. 99–100. Arguably, the new approaches could draw on the Forest

Service tradition of informal consultations with local communities. 16 R.B. Keiter, T. Boling, and L. Milkman, ‘‘Legal Perspectives on Ecosystem Management: Legitimizing a New Federal Land Management Policy,’’ in Ecological Stewardship, vol. III, p. 12. 17For example, procedural costs for individual projects exceeded $1 million in both the Bitterroot and Santa Fe case examples. See Bitterroot National Forest, ‘‘Bitterroot Burned Area Recovery Project,’’ appendix C, p. C–10; and Santa Fe National Forest, ‘‘Santa Fe Municipal Watershed Project,’’ appendix C, p. C–19. 18For example, the planning process in the Morgan Falls case example took about 20 months

(from August 1999 to April 2001), even though it was noncontroversial and there were no appeals. According to the line officer, ‘‘The process is frustrating for many local publics and employees due to the amount of time it takes to put an action in place.’’ See Chequamegon–Nicolet

National Forest, ‘‘Morgan Falls Trail Reroute Project,’’ appendix C, p. C–41.

Each law was intended to strengthen the Forest Service’s ability to discharge its

obligation to care for the land and serve people. In response, the Forest Service reformulated its mission, goals, and objectives.12 Today, the agency focuses on the

long-term health of the land, in accordance with the principle that conditions we

leave on the land are more important than what we take away.13

In the 1970s, the Forest Service began to change its approach to public participation in national forest management. In accordance with statutory requirements for

more public involvement, the agency’s new approach was to ‘‘inform and involve.14

In practice, however, ‘‘inform and involve’’ often continued the tradition of ‘‘educating’’ the public and arbitrating disputes among resource users based on professional expertise. It failed to stop an intensification of the debate over resource use

on federal lands.

As the conflict heated up in the 1980s, line officers began to seek alternative

means of conflict resolution. By the early 1990s, the old model was giving way to

new collaborative approaches.15 Today, the Forest Service increasingly sees itself as

a partner in natural resource management. It works within collaborative groups

with members who openly discuss their differences while seeking agreement based

on mutually shared values and goals.

The environmental laws thus helped to end one era of land management and inaugurate another. What one study calls ‘‘the period of retention and management

of public lands’’ is yielding to a new era marked by ‘‘integrated, ecosystem-based

management that transcends traditional jurisdictional boundaries.16 In the new era,

opportunities abound for new, more flexible approaches to public land management.

New scientific insights are paving the way for adaptive management on an ecosystem basis, and new developments in information technology are making it easier

to share information and collaborate across jurisdictions on a landscape level.

Yet, the Forest Service’s decision-making process is failing to keep pace with these

developments. The environmental laws spawned thousands of pages of regulations

and administrative rules, making national forest management far more complex and

cumbersome at a time when flexibility and agility in public land management are

needed to capitalize on new opportunities. The requirements include a stream of

predecisional consultations and analyses, often followed by postdecisional appeals

and litigation. Line officers often find themselves in a costly procedural quagmire,

where a single project can take years to move forward and where planning costs

alone can exceed $1 million.17 Even noncontroversial projects can proceed at a

snail’s pace.18

Thomas Report

This problem has long been recognized. In April 1995, during his Senate confirmation hearing, Secretary of Agriculture Dan Glickman pledged to work with Congress

43

19 U.S. General Accounting Office, ‘‘Forest Service Decision–Making: A Framework for Improving Performance’’ (Report to Congressional Requesters; GAO/RCED–97–71; April 1997), p. 102. 20 According to GAO, ‘‘[Clinton] Administration officials have said that they are hesitant to

suggest changes to the procedural requirements of planning and environmental laws because

they believe that the Congress may also make substantive changes to the laws with which they

would disagree.’’ GAO, ‘‘Forest Service Decision–Making,’’ p. 102. 21 Judge Lawrence K. Karlton characterized the situation as follows: ‘‘With the growth of the

environmental movement, the tension between the power of the Secretary [of Agriculture] to administer the surface of the national forests and the right to prospect and mine in the national

forests became evident. With the passage of the Multiple Use Act and other statutes and amendments to pre-existing statutes, the unresolved tension has been incorporated into law. Indeed,

the crazy quilt of apparently mutually incompatible statutory directives are enough to drive any

Secretary of Agriculture interested in discharging his lawful duties to drink. Congress, can, of

course lead a Secretary to booze, but Congress cannot force the Secretary to drink. Thus the

Secretary by nature of his rulemaking powers, has the opportunity to bring order out of chaos.’’

United States v. Brunskill, Civil No. 5–82–666 LKK (E.D. Cal. 1984), unpublished opinion, aff’d,

792 F.2d 938) (9th Circuit 1985). 22Thomas Task Force, ‘‘Review of the Forest Service Legal and Regulatory Framework’’ (draft

report) (Washington, D.C.: USDA Forest Service, 1995), appendix A, p. A–3. 23For example, ‘‘ESA requires the re-evaluation of on-going projects whenever new listings are

made, critical habitat is designated, or other new information comes to light,’’ which can change

output projections. Thomas Task Force, appendix A, pp. A–11–12. 24For example, the Flathead National Forest faced litigation when its forest plan decision was

announced in 1986, even though the Forest Service conducted additional analysis and hired a

mediator to facilitate negotiations. Thomas Task Force, appendix A–14. 25 Under FACA regulations, ‘‘where the Forest Service does not have the professional expertise

or the necessary information, but knows that the expertise or information exists, it can be difficult to get the information and recommendations.’’ Thomas Task Force, appendix A, pp. A–

14–15. 26For example, under a 1994 decision on the northern spotted owl, the court ‘‘identified several circumstances that may cause a need to reconsider the ROD [record of decision].’’ Thomas

Task Force, appendix A, p. A–16. 27For example, the responsibilities of state agencies to oversee water and air quality overlap

with corresponding Forest Service responsibilities. Thomas Task Force, appendix A, p. A–18. 28For example, regulatory agencies ‘‘are generally unwilling to allow projects that comply with

forest plan consultation to proceed without further review at the project level.’’ Thomas Task

Force, appendix A, p. A–18.

to streamline the Forest Service’s statutory framework.19 Subsequently, Forest

Service Chief Jack Ward Thomas appointed a task force to review the laws and regulations that guide management of the National Forest System. The review was to

form the basis for a report to Congress. The task force drafted a report on how key

laws relate to one another and affect national forest management (appendix A). The

report was not delivered.20

The Thomas Report found two widely held yet disparate views. One view is that

the various sutes and regulations complement each other. The other view is that

the statutes and regulationsform a ‘‘crazy quilt’’ with unintended adverse consequences.21 Although the task force ‘‘did not find strong oppositional conflict between statutory mandates,’’ it did find that the legal and regulatory framework had

‘‘some negative effects’’ on ‘‘the effectiveness of the Forest Service as a land-managing agency.’’22 The report identified the following adverse effects:

• diminished output predictability;23

• disincentives for predecisional dialogue because citizens have opportunities for

administrative appeals and judicial review;24

• legal constraints on using professional expertise and consensual group recommendations;25

• uncertainty in Forest Service decision-making, given the vague or undefined parameters of judicial review;26

• process duplication and management inefficiencies;27 and

• inefficient cycles of forest plan and project-level consultation and documentation.28

The Thomas Task Force also reported escalating costs connected with forest planning and management due to the need for voluminous documents to meet potential

court challenges.

Business Process Analysis

Years of experience in project preparation have primed agency managers to accept

overlapping and occasionally competing processes. It has become second nature for

a forest’s management team to allocate the time and resources needed solely for

project process. Yet, beyond informal discussion and examination, no attempt to

quantify the required processes had occurred.

44

29 Inventory and Monitoring Institute and BusinessGenetics, ‘‘Report Abstract: Reflecting

Complexity and Impact of Laws on a USDA Forest Service Project’’ (preliminary report) (Fort

Collins, CO: USDA Forest Service, 2001), appendix B, pp. B–7, B–17. 30 IMI and BusinessGenetics, appendix B, p. B–7. 31Six Rivers NF, appendix C, pp. C–25–26. 32Santa Fe NF, appendix C, p. C–18. 33 In the Bitterroot case example, managers spent months reviewing roads policy and various

environmental statutes and regulations ‘‘to provide the greatest chance of success in judicial review.’’ Meanwhile, fire-damaged timber proposed for salvage harvest was declining in value. See

Bitterroot NF, appendix C, pp. C–7–8. 34See, for example, Bitterroot NF, appendix C, p. C–10: ‘‘Given the obvious prospect of judicial

review, there was little motivation for compromise among interests.’’ 35See, for example, Bitterroot NF, appendix C, p. C–12: ‘‘However, much of the analysis and

documentation prepared to minimize litigation risks did not substantially help the decisionmaker.’’ 36See, for example, Bitterroot NF, appendix C, p. C–8: ‘‘The Forest Service Manual prohibits

management actions that lead to listings under the Endangered Species Act. There are 12 sensitive vertebrates and 27 sensitive plants on the BNF. Uncertainty about the population dynamics of most of these species makes the analysis of species viability problematic.’’ 37See, for example, Bitterroot NF, appendix C, p. C–11: ‘‘Many employees would prefer to

avoid such assignments because they perceive them as unrewarding exercises in paperwork,

with a greater chance of frustration and failure than of success.’’

In early 2001, the Forest Service decided to see how procedural requirements

translate into concrete activities at the project level by applying a business process

model validated by agency psonnel with field experience. The agency chose to analyze all requirements potentially applicableto one phase of a timber sale, drawing

on the perspectives of employees who worked on the South Platte Watershed Project

in Colorado, one of 15 large-scale watershed restoration projects nationwide. The

Forest Service’s Inventory and Monitoring Institute hired a contractor to perform a

business process analysis—a step-by-step breakdown of the activities involved.

The initial report delivered to the Forest Service (appendix B) summarizes results

from the study. The study found that project-level decisions involve as many as 800

individual activities and more than 100 process interaction points.29 The report concluded that ‘‘the intent of the Agency and governing laws is programmatically

aligned,’’ but that ‘‘[p]rocess interaction between laws is extremely complex—[and

the] project planning process is highly susceptible to recursion/interruption and even

non-completion.’’30 In other words, the process appears to be so complex that it is

fragile and prone to failure. The final report will show time and costs involved,

which promise to be extensive; it will be based on a review by the agencies responsible for administering the relevant laws.

Case Examples

The Bosworth Team reviewed and analyzed several real-world case examples to

help pinpoint some of the problems associated with national forest management.

The case examples include two fire recovery projects, a fuels reduction project, a

trail relocation project, and a watershed restoration project. Drafted in the field,

they reflect the views of local line officers; appendix C contains summaries and

lightly edited full text.

The case examples tell a complex story. Some of the problems described in the

case examples were avoidable. One case example partly attributes project delays to

mistakes made by managers, including a failure to change tactics in response to a

changing situation.31 Another case example notes that the project could have been

expedited had managers given it higher priority.32

Nevertheless, a strong common theme runs through all five case examples and

other materials reviewed by the team: Procedural constraints keep national forest

management from being as efficient and effective as it should be. Specifically:

• multiple layers of interagency coordination, coupled with internal administrative

requirements that have accumulated over time, are delaying time-sensitive

projects;33

• for some groups, postdecisional review opportunities (through appeals and litigation) are a disincentive to seriously engage in predecisional collaboration on a

project;34

• requirements for environmental analysis go well beyond what is required for

fully informed decision-making,35 partly because the Forest Service has locked

itself into expectations for analysis and monitoring without fully considering the

practical and scientific limitations involved;36

• procedural requirements place enormous stress on employees at all organizational levels, leading to employee burnout;37

45

38See, for example, Six Rivers NF, appendix C, pp. C–23–28. 39 In the Megram case example, a court threw out the environmental impact statement based

on its interpretation of regulatory requirements. See Six Rivers NF, appendix C, p. C–25. 40 In the Megram case example, the remanded EA was reworked based on a wildlife survey that cost $28,350 for 1,134 acres (about $25 per acre). See Six Rivers NF, appendix C, p. C–

26.41The Council on Environmental Quality has named additional factors that keep federal agencies from embracing ‘‘policies, procedures, and activities that would enhance the conservation

of biological diversity,’’ including the disparity between administrative and ecological boundaries; institutional infrastructure (separate jurisdictions, differing missions); and the absence of

regional ecosystem plans and strategies that provide specific biodiversity goals and objectives

against which the impacts of proposed activities can be assessed. CEQ concluded—the challenges and obstacles discussed here do not preclude serious consideration of biodiversity in

NEPA analysis within existing institutional arrangements and with presently available information. CEQ, ‘‘Incorporating Biodiversity Consideration Into Environmental Impact Analysis

Under the National Environmental Policy Act’’ (Washington, D.C.: CEQ, January 1993), p. 22.

• projects needed for ecological restoration and fuels treatment are not being implemented on the ground;38

• continually evolving court interpretations of regulatory requirements create uncertainty for land managers;39 and

• project analyses are frequently reworked at high cost.40

NATURE OF THE PROBLEM

With the advent of the electronic age, the world has become a different place. Advances in science and technology have the potential to revolutionize public land

management. Personal computers, the Internet, and telecommunications have created unprecedented opportunities for collaboration and flexible decision-making

through teleconferences, virtual public meetings, and instantaneously shared information. Ecosystem-based approaches have opened possibilities for cross-jurisdictional management unheard of in the days of administering the land strictly within

jurisdictional boundary lines. The science of adaptive management has the potential

to replace traditional linear decision-making with flexible, holistic approaches based

on feedback loops.

Unfortunately, the Forest Service operates within a statutory, regulatory, and administrative framework that has kept the agency from fully capitalizing on such opportunities. The Thomas Report, business process analysis, and case examples all

illustrate the shortcomings of a cumbersome procedural framework inherited from

the past. Three problem areas stand out in particular:

1. Excessive analysis—confusion, delays, costs, and risk management associated

with the required consultations and studies;

2. Ineffective public involvement—procedural requirements that create disincentives to collaboration in national forest management; and

3. Management inefficiencies—poor planning and decision-making, a deteriorating

skills base, and inflexible funding rules, problems that are compounded by the sheer

volume of the required paperwork and the associated proliferation of opportunities

to misinterpret or misapply required procedures.

Excessive Analysis

Interagency consultations and environmental studies are cornerstones in our nation’s system of protecting federal lands. However, the associated procedures, as

they have evolved over decades of experience and legal precedent, are now complex,

often costly and time-consuming, and sometimes redundant. Ironically, the requirements can keep federal agencies from realizing the intent of the law’to protect resources at risk.

Federal land management agencies (such as the Forest Service) and regulatory

agencies (such as the Environmental Protection Agency, National Marine Fisheries

Service, and U.S. Fish and Wildlife Service) play distinct yet overlapping roles in

conserving and managing natural resources on federal lands. Decision-making is

complicated by the extensive environmental analysis and public involvement procedures developed under NFMA, NEPA, ESA, FACA, and the Forest Service’s appeals

process. The ecosystem-based approach adopted by most federal agencies adds further layers of complexity.41 All of these factors, alone or in combination, can prevent

or seriously delay work from getting done to protect species, improve water quality,

or restore watersheds.

Short–Term Focus

Forest and rangeland management can, in many respects, be compared to a sporting event. Forest Service employees constitute the team. Forest plans are like game

46

42 Jack Ward Thomas, Testimony prepared for a hearing on the Northwest Forest Plan, scheduled for October 24, 2001, before the Senate Subcommittee on Public Lands and Forests of the

Committee on Energy and Natural Resources. 43Keiter and others, p. 12. 44Thomas, congressional testimony on the Northwest Forest Plan. 45The focus on short-term effects on forest resources such as water quality and fisheries is

illustrated by the adverse ruling in Pacific Coast Federation of Fisherman’s Association v.

NMFS, 253 F.3d 1137 (9th Cir. 2001). 46Memorandum from the forest fisheries biologist to the acting forest supervisor, Gifford Pinchot National Forest, 1 July 1999.

plans, designed to help the team achieve the desired outcome of maintaining

healthy ecosystems in the long term. Projects are like individual plays in the game.

If executed properly, they propel the team to victory.

Regulatory agencies, on the other hand, are like referees. They are responsible for

enforcing the various environmental statutes, such as ESA and the Clean Water

and Air Acts, that constitute the rules of the game. The primary focus of regulatory

agencies is not on long-term outcomes (winning the game). They rightly leave that

up to the land management agency. Rather, they focus on the immediate risks to

a particular resource, such as a threatened or endangered species or the quality of

the air on any given day, that is governed by the rules they enforce.

Understandably, the regulatory agencies often seek to avoid any risk to the individual resources they oversee. ‘‘Regulatory agencies, given their missions,’’ former

Forest Service Chief Jack Ward Thomas has declared in testimony before Congress,

‘‘will always opt to accept as little short-term risk as possible and be relatively indifferent to long-term dynamic changes in the ecosystem in question.’’42 By contrast,

said Thomas, ‘‘[m]ultiple-use oriented agencies, given their missions, will usually opt

for greater short-term risk with a longer-term view.’’

Thomas noted that ‘‘[t]he regulatory agencies’ cards trump those of the land management agencies.’’ Before the game can start, the referees must inspect and approve the game plan (forest plan). That might take awhile, particularly if the pool

of referees is small and over-worked, overly cautious, or subject to multiple levels

of review. Then the game can begin, but it is constantly interrupted before each play

(project) so the referees can inspect and approve the play in advance. Again, that

might take awhile.

And, to further complicate maters, each referee uses a different rulebook (different

laws and different requirements for particular resources, such as air quality or individual species). Adjustments made to satisfy one referee might violate the rules of

another. If every referee can be satisfied—which can be difficult—then the play is

allowed to proceed; but it might no longer do what it was supposed to do: help the

team win the game.

In other words, the regulatory agencies can use their ‘‘trump cards’’ to change the

focus of land management from landscape-level conditions desired far into the future to the short-term welfare of single resources. As one study has noted, the shortterm, single-resource focus defies ecological insights established decades ago by Aldo

Leopold.43 ‘‘From my observation,’’ noted Chief Thomas, ‘‘it seems that each time

there was a decision to make, it was made on the conservative (low immediate risk)

side. These cautious decisions, piled one on top of the other, finally accumulated to

slow management to a crawl headed for a stop.’’44

Two types of examples illustrate the problem:

• Thinning and controlled burning can have adverse short-term impacts on water

and air quality. However, if consultation stops such projects, the adverse longterm impacts can be much greater, including enormous fires; watershed damage;

widespread loss of biodiversity and wildlife habitat; and massive, uncontrolled

smoke emissions.45

• Roads decommissioning and in-stream restoration (such as culvert removal) can

adversely affect water quality in the short term, although the long-term benefits

for waters and lands are obvious. Often, such activities are folded into large

projects with multiple objectives to achieve greater efficiencies. If consultation

delays or prevents such projects from going forward, managers have a perverse

incentive not to decommission roads or restore streams, but rather to eliminate

those components from the project just to get the rest of the work done.46

Management Uncertainty

Many environmental laws contain provisions that tailor judicial review to particular purposes. However, agency actions under NEPA and NFMA are reviewed

under the ‘‘arbitrary and capricious’’ standard of the Administrative Procedures Act.

Under this standard, evolving case law has increased the costs for national forest

planning and decision-making. Part of the increase comes from the Forest Service’s

47

47See Santa Fe NF, appendix C, p. C–11: ‘‘ID Team members often believe that much of their

work is ‘for the courts’ and not particularly useful for line officers who make decisions.’’ 48Santa Fe NF, appendix C, pp. C–17–18. 49 In Oregon’s Blue Mountains, for example, ‘‘[i]n their haste to fix what was wrong with industrial logging, the [early Forest Service] foresters created other problems that proved much

more difficult to mend.’’ Nancy Langston, Forest Dreams, Forest Nightmares (Seattle: University of Washington Press, 1995), p. 135.

efforts to supply data and information requested by internal and external interests.

However, much of the increase is related to management uncertainty’the desire to

cover multiple eventualities, particularly if a case goes to court.

Since 1969, when NEPA was enacted, the courts have established a body of case

law. NEPA regulations formulated by the Council on Environmental Quality (CEQ)

have their basis in early NEPA case law; the regulations have had only one substantial change since 1978. Each federal agency is responsible for developing NEPA

procedures for its own particular environmental issues and decision-making processes. Forest Service NEPA procedures established in 1992 address some of the

problems, but many areas of uncertainty remain unaddressed.

For example, the range of alternatives required for environmental assessment and

the appropriate way to incorporate adaptive management are still ambiguous. Line

officers can never be sure when documentation is enough (see the sidebar below).

They must constantly assess the risk of failure in the courts based on case law interpretations. They are left with the choice of either spending more time and money

on analysis to cover a variety of potential court interpretations, or withdrawing

project proposals for fear of adverse court decisions.

In the Santa Fe case example, where severe fire hazards in a municipal watershed urgently demanded action, project withdrawal was not an option. As a result,

the forest spent almost 5 years and more than $1 million on planning and public

involvement, including collecting and analyzing extensive information of dubious

value.47 ‘‘We needed really good NEPA in order to have a defensible process,’’ noted

the project planner. ‘‘We expected legal challenge.’’48

BESCHTA REPORT—WHEN IS ENOUGH ENOUGH?

An excellent illustration of excessive analysis due to management uncertainty is

the Beschta Report. Commissioned by the Pacific Rivers Council in 1995, eight scientists drafted a paper, ‘‘Wildfire and Salvage Logging,’’ commonly known as the

Beschta Report.

The paper has never been published in any scientific or professional journal, nor

has it ever been subject to any formal peer review. In 1995, Forest Service scientists

and managers expressed strong reservations about the report, which contains many

unsubstantiated statements and assumptions. Nevertheless, the courts have sometimes shown support.

Groups have challenged postfire recovery projects on the grounds that the Forest

Service has failed to consider the Beschta Report. In four cases, the courts have

ruled that Forest Service decisions violated NEPA because the associated records

did not adequately document the agency’s consideration of the Beschta Report. In

two other cases, courts have ruled in favor of the Forest Service on this issue.

In view of the court record, forest planners might feel compelled to thoroughly

document their consideration of the Beschta Report’s principles and recommendations, even though the underlying land management issues are already addressed

in the record. That includes documenting why some elements of the Beschta Report

are not relevant to the specific proposed project.

The court record has inspired some groups to demand that the Forest Service consider other papers and articles supposedly relevant to proposed actions. Sometimes

the proffered list of references exceeds 100 entries. To minimize the risk of adverse

judicial opinions, land managers might feel constrained to fully document within the

body of the NEPA document their detailed consideration of each and every paper

or article.

Information Levels

In the past, land managers have made mistakes because they did not adequately

understand natural systems.49 Sound land management decisions must be based on

enough information to sufficiently assess the environmental effects. NEPA incorporates that insight. NEPA requires federal land managers to conduct environmental analyses in order to evaluate the short- and long-term implications of proVerDate 11-MAY-2000 12:09 Mar 14, 2003 Jkt 000000 PO 00000 Frm 00051 Fmt 6633 Sfmt 6621 80160.TXT HRESOUR1 PsN: HRESOUR1
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50 NEPA sections 102(C)(ii) and (v) require proposals for ‘‘major Federal actions’’ to include

‘‘a detailed statement’’ on, respectively, ‘‘any adverse environmental effects which cannot be

avoided should the proposal be implemented’’ and ‘‘any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.’’

Principle Laws, p. 456. 51Quoted in Michael J. Gippert, ‘‘Integration and Coordination of Environmental Laws and

Federal Administrative Practice: Forest Service Experience’’ (Washington, D.C.: USDA Office of

General Counsel; revised talking points, November 1996), p. 1. Thomas was paraphrasing the

noted ecologist Frank Egler, who wrote: ‘‘Ecosystems are not only more complex than we think,

they are more complex than we can think.’’ Frank Egler, The Nature of Vegetation: Its Management and Mismanagement (Norfolk, Conn.: Aton Forest Publishers, 1977). 52 A question raised by the court in Alaska v. Andrus: ‘‘Predictions, however, by their very

nature, can never be perfect; and the information available to an agency could always be augmented. The question in each case is, ‘‘How much information is enough?’’ 580 F.2d 465 (D.C.

Cir. 1978), vacated in part as moot, 439 U.S. 922 (1978). 53 Alaska v. Andrus, 580 F.2d 465 (D.C. Cir. 1978), vacated in part as moot, 439 U.S. 922

(1978). 54 Jack Ward Thomas, in an article that appeared in Forest Watch (January/February 1992),

quoted in Gippert, ‘‘Integration and Coordination of Environmental Laws,’’ p. 8.

posed actions, to the extent that such implications are known or reasonably ascertainable.50

Unfortunately, the courts have increasingly directed Forest Service managers to

obtain information beyond the agency’s own view of what is reasonable. Requirements to reopen analysis and rework project plans can delay even very small

projects (see the sidebar on the next page). Natural systems are so inherently complex that they might never be fully understood in all of their workings. ‘‘For not only

are ecosystems more complex than we think,’’ Chief Jack Ward Thomas has observed, ‘‘they are more complex than we can think.’’51 Environmental analysis is

necessarily based on incomplete data and our less-than-perfect understanding of

natural processes. The question is this: How much information is enough?52

Opinions differ. For reasonably foreseeable adverse effects, CEQ NEPA regulations require only that an environmental impact statement (EIS) disclose the fact

of incomplete or unavailable information regarding the effects, acquisition of that

information if reasonably possible, and evaluation of the effects based on available

approaches. An EIS need not discuss remote and highly speculative consequences.

In Alaska v. Andrus, the court ruled that federal agencies have a responsibility to

‘‘predict the environmental effects of a proposed action before the action is taken

and those effects are fully known,’’ but that ‘‘agencies may not be precluded from

proceeding with particular projects merely because the environmental effects of that

project remain to some extent speculative.’’53

However, some have demanded very high standards of certainty, threatening otherwise to appeal or litigate. ‘‘When land-use decisions are to be made that have

large-scale economic, social, and political impacts,’’ noted Jack Ward Thomas, ‘‘individuals who stand to lose from those decisions typically demand unreasonable degrees of certainty in the information on which those decisions are based.’’54 These

demands are often supported by references to existing case law. In response, the

Forest Service has spent growing amounts of time and money on increasingly elaborate predecisional speculation about the environmental effects of proposed actions.

MORGAN CUT: A CASE OF ANALYSIS PARALYSIS*

A good example of what some call ‘‘analysis paralysis’’ comes from the Wayah

Ranger District on the Nantahala National Forest in North Carolina, where a

stream of new developments has produced years of analysis and planning for a

small pilot project:

• 1992: Public scoping begins for the Hickory Knob timber sale.

• 1994: The environmental assessment (EA) is released; the project area is found

to contain cerulean warblers, listed in the forest plan as a sensitive species. The

timber sale is dropped.

• April 1998: Part of the old timber sale becomes the Morgan Cut Reinvention

Project, a stewardship pilot project to evaluate the use of commercial logging

for vegetation management. Proposed are a regeneration harvest on 12 acres

and thinning on 8 acres. The project area contains no cerulean warblers.

• February 1999: Coordination with the regional and national offices is completed

to tailor the project to the stewardship pilot program. Additional analysis covers

aquatic, wildlife, and plant resources.

49

55 Bitterroot NF, appendix C, p. C–7. 56See Bitterroot NF, appendix C, p. C–11: ‘‘Uncertainty over what is a legally sufficient level

of analysis for particular issues and policy directives often leads to levels of analysis and documentation greatly exceeding the amount line officers feel is needed to make an informed decision. This additional analysis and documentation is ‘for the courts,’ and is of little or no use

to the general public or agency decision-makers.’’ 57Lee, Compass and Gyroscope, pp. 103–104.

• February 1999: The district announces a decision based on a categorical exclusion (CE). The decision is appealed and withdrawn. A court subsequently eliminates use of CEs for similar small projects.

• June 1999: The district reinitiates scoping. An EA is released in November, but

a decision is delayed pending analysis related to the endangered Indiana bat,

discovered in an adjacent county.

• September 2000: A forest plan amendment and a biological opinion are released,

both containing new requirements to protect habitat for the Indiana bat.

• September 2001: The forest completes a forestwide management indicator species report, in compliance with a recent court decision affecting several national

forests in the South.

• February 2002: Additional surveys are completed for sensitive species. The

project’s biological evaluation and EA are reformatted to meet new regional

standards. The decision notice is released. • March 2002: The decision is appealed. The project is delayed pending outcome

of the appeal.

New developments forced employees to rework plans for Morgan Cut, keeping the

project in limbo for years. The EA currently stands at 65 pages, with an additional

81 pages of specialist reports and an appeals record 372 pages long—all for a 20-

acre stewardship pilot project involving no new roads.

* Based on a report from the Wayah Ranger District, Nantahala National Forest,

May 2002.

The Bitterroot Burned Area Recovery Project is a case in point. Despite the need

to move swiftly—in part to recover the value of removed timber’line officers still had

to ‘‘fully document their ‘‘hard look’’ at all the issues and their full compliance with

every potentially applicable procedural requirement’’ in order to ‘‘withstand a federal court’s ‘‘searching inquiry’’ of whether the [national] forest ‘‘adequately considered all the relevant factors.’’55 The adjacent Sula State Forest, which suffered the

same fire damage as the Bitterroot National Forest and proposed similar treatments, was able to get work done on the ground while the national forest was still

collecting and analyzing information. In the end, opponents did litigate, so the national forest’s careful study and documentation were in part justified. But they came

at a considerable cost and risked fatally delaying a time-sensitive project. The end

result was a settlement that did not fully utilize the study and analysis.

Though necessary under the circumstances, such efforts are of questionable usefulness.56 As Kai Lee has put it, ‘‘Conflict through the courts forced substantial

change in the agencies’’ decision-making. But there was little learning about the environment itself.—[W]hat remains is environmental analysis that is often usable,

but few users and little cumulative ecological knowledge.’’57 Resources put to such

dubious use cannot be applied to more productive tasks, such as monitoring, assessment, and adaptive management.

New Information

A related problem is the inherently incomplete nature of information on the environment. After analysis is done and work has started, new discoveries might be

made or the situation might change; for example, an endangered species might be

found or a fire or flood might occur. Under NEPA, if the agency makes ‘‘substantial

changes in the proposed action that are relevant to environmental concerns—or if

there are ‘‘significant new circumstances or information relevant to environmental

concerns and bearing on the proposed action or its impacts,’’ then such new information can force a project to stop work, pending supplementation of environmental

analysis.

And therein lies the rub. The agency interpretation of the terms ‘‘substantial’’ and

‘‘significant’’ are subject to judicial review, creating fertile ground for litigation. The

problem is particularly vexing at higher levels of planning and coordination. Forest

plans, for example, are intended to last 10 to 15 years, a period long enough for

many changes to occur and much new knowledge to emerge. Another challenge is

incorporating new information into the larger scales of planning and analysis required for eco-regional or cross-jurisdictional coordination and collaboration. New inVerDate 11-MAY-2000 12:09 Mar 14, 2003 Jkt 000000 PO 00000 Frm 00053 Fmt 6633 Sfmt 6621 80160.TXT HRESOUR1 PsN: HRESOUR1
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58For a thorough discussion of the concept and application of adaptive management, see B.T.

Borman, J.R. Martin, F.H. Wagner, W.W. Wood, J. Alegria, P.C. Cunningham, M.H. Brookes,

P. Fiesema, J. Berg, and J.R. Henshaw, ‘‘Adaptive Management,’’ in Ecological Stewardship, vol.

III, pp. 505–533. 59Kai N. Lee, ‘‘Appraising Adaptive Management,’’ in Conservation Ecology 3(2) (online at

<http:// www. consecol.org/vol3/iss2/art3>). 60For example, ‘‘[s]topping ongoing and new activities during the development or reconsideration of programmatic ecosystem strategies operates as a disincentive for federal agencies to

practice adaptive management.’’ Gippert, ‘‘Integration and Coordination of Environmental

Laws,’’ p. 18.

formation at any scale can trigger delay or additional analysis at other scales (see

the sidebar on the next page).

Most scientists and land managers agree that adaptive management is the answer.58 Adaptive management is based on the premise that our understanding of

ecosystems continually evolves and that unexpected events can and will occur. Uncertainty is normal; it need not grind decision-making to a halt. ‘‘Adaptive management is learning while doing,’’ Kai Lee has noted. ‘‘Adaptive management does not

postpone action until ‘‘enough’’ is known but acknowledges that time and resources

are too short to defer some action.’’59 ... Adaptive management means making decisions using the best information available, then monitoring the results, learning

from experience, and adapting future management accordingly.

WOODPECKER PROJECT: A CASE OF OPEN–ENDED ANALYSIS*

A good example of open-ended analysis comes from Alaska’s Mitkof Island, part

of the Tongass National Forest. In 1995, a landscape analysis of the island identified a grouping of potential timber harvest opportunities. They came to be known

as the Woodpecker Project, a proposal to remove 16.3 million board feet of timber

and build 8.6 miles of new and temporary roads.

In the years that followed, new decisions, policies, and appeals required the Woodpecker plans and studies to be constantly reopened. Such new developments included:

• In 1997, the record of decision (ROD) for the Tongass Forest Plan;

• In 1999, the ROD for the revised forest plan;

• In January 2001, the new agency wide roadless rule and roads policy;

• In February 2001, again the new roads policy;

• In March 2001, a court decision to vacate the 1999 ROD;

• In March 2001, a court decision to enjoin timber sales pending a supplemental

environmental impact statement;

• In May 2001, a court decision to lift the injunction, requiring documentation to

be reworked to incorporate the latest legal and policy language;

• From June to December 2001, interim directives to protect roadless values;

• In December 2001, a decision by the regional forester to reverse the forest supervisor’s decision to proceed with the project because the record appeared to

include a data error that might be significant; and

• In February 2002, court hearings on whether to again enjoin timber sales.

Each new development forced employees to rework documentation for the Woodpecker Project. The future promises more of the same; litigation could follow, given

the roadless issues involved.

* E-mail memorandum from Betsy Rickards, environmental coordinator, USDA

Forest Service, Alaska Region, 25 April 2002.

However, current procedures can discourage adaptive management. The Forest

Service takes the approach that complying with NEPA and ESA requires making

decisions, completing projects, and determining effects within a clearly identifiable

timeframe. Forest Service rules for public participation and administrative appeals

are linear and inflexible. Without more flexible mechanisms, adaptive management

will remain at best difficult to incorporate into national forest planning and

decision-making.60

New Listings

A special form of new information is the new listing of a threatened or endangered species. If a species is added to the endangered species list, then activities

that might affect it must often stop, pending consultation with regulatory agenVerDate 11-MAY-2000 12:09 Mar 14, 2003 Jkt 000000 PO 00000 Frm 00054 Fmt 6633 Sfmt 6621 80160.TXT HRESOUR1 PsN: HRESOUR1
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61Pacific Rivers Council (PRC), 30 F.3d 1050 (9th Cir. 1994). 62The Supreme Court’s ruling regarding the justiciability of forest plans has raised questions

about the viability of Pacific Rivers Council v. Thomas. 63 36 CFR 219.19. 64 NFMA section 6(g)(3)(b). Principle Laws, p. 597. The ‘‘viable populations’’ requirement is

also arguably more rigorous than any in provision in ESA. 65 Bitterroot NF, appendix C, p. C–8. 66 Jack Ward Thomas, in an article that appeared in Forest Watch (January/February 1992),

quoted in Gippert, ‘‘Integration and Coordination of Environmental Laws,’’ p. 8. 67 Record of Decision for Amendments to Forest Service and Bureau of Land Management

Planning Documents Within the Range of the Northern Spotted Owl (April 1994). Dozens or

even hundreds of species might fall under ‘‘Survey and Manage’’ requirements for a project.

‘‘Under the Survey and Manage component of the NFP [Northwest Forest Plan], we have

learned about the distribution of over 400 species about which little was known prior to 1994,’’

said Deputy Regional Forester Nancy Graybeal in testimony before the Senate subcommittee on

Forests and Public Land Management, 24 October 2001. 68See, for example, Six Rivers NF, appendix C, p. C–26: ‘‘In fact, ‘‘Survey and Manage’’ requirements are typically more inflexible than consultation requirements for endangered species.’’ 69See, for example, Six Rivers NF, appendix C, p. C–27: ‘‘Data collection without a research

design is usually a waste of time.’’

cies.61 That stands to reason; however, renewed consultation might be required for

an entire forest plan, triggering a forest—or even regional suspension of projects.62

The need for such blanket delays is questionable, particularly in the electronic

age. With detailed databases quickly at their disposal, regulatory and management

agencies should be able to focus on the projects that specifically affect a newly listed

species. Other projects should be able to proceed without delay.

Administrative Rules

The Forest Service’s own rules, many of which resulted from court decisions, require the agency to gather and analyze extensive data before a project can proceed.

For example, forest planning regulations require line officers to maintain ‘‘viable

populations of native and desired non-native species within the planning area.’’63 By

comparison, NFMA requires only that managers ‘‘provide for diversity of plant and

animal communities based on the suitability and capability of the specific land area

in order to meet overall multiple-use objectives’’64

The ‘‘viable populations’’ requirement is responsible for much of the time and expense that goes into project planning. It means analyzing potential project effects

on many different species, as opposed to a far less time-consuming landscape-level

analysis of habitat diversity, specifically checking for the needs of individual species.

In the Bitterroot case example, the national forest evaluated the proposed project’s

impact on ‘‘viable populations’’ for 12 sensitive vertebrates and 27 sensitive plants,

a daunting challenge: ‘‘Uncertainty about the population dynamics of most of these

species makes the analysis of species viability problematic,’’ the line officer observed.65

Former Chief Jack Ward Thomas, currently Boone and Crockett Professor of Wildlife Conservation at the University of Montana, has questioned the rationale for

such ‘‘unreasonable degrees of certainty’’ in project planning. ‘‘The biology of certain

wildlife populations and habitat relationships is not conducive to precise estimates,

no matter how much they are studied,’’ he noted. ‘‘The precision of such estimates

can become only marginally better regardless of how politically desirable that may

be.’’66

Another example of an administrative rule that seems to demand unreasonable

degrees of certainty is the ‘‘Survey and Manage’’ requirement in the Northwest

Forest Plan. Before a ‘‘ground-disturbing activity’’ can proceed within the 24.5 million acres of federal land covered by the plan, federal agencies must collect detailed

data on numerous plants and animals in the project area.67 For species such as mollusks, the knowledge of habitat needs can be extremely limited; there might be no

more than a single expert worldwide. ‘‘Survey and Manage’’ can prevent fuels reduction if thinning or prescribed fire would temporarily affect suitable habitat or

threaten individuals in surveyed species. Even more than consultation requirements, ‘‘Survey and Manage’’ tends to distract from long-term resource conservation

by focusing management on short-term, single-resource protection.68

Moreover, the scientific basis of ‘‘Survey and Manage’’ is questionable.69 Jack

Ward Thomas, who led landscape-level studies related to ecosystem management in

the Pacific Northwest before serving as Forest Service Chief from 1993 to 1996, believes that the surveys under the protocol are not only exceedingly expensive, but

52

70Personal communication with Jack Ward Thomas, Forest Service Chief emeritus and former

leader of the Forest Ecosystem Management Advisory Team process. 71For an authoritative discussion of collaborative approaches, see Hummel and Fleet, pp. 97–

129. 72Santa Fe NF, appendix C, p. C–18. 73Santa Fe NF, appendix C, p. C–18: ‘‘[The public does] not accept agency expert opinions

on face value. Consequently, the information needs were greater for this project than for many

others of similar size and complexity. There was a demand for ‘outside’ scientific opinion, such

as that presented by well-known forest ecologists at a community forum.’’ 74Line officers estimated that, without fuels treatments, a wildfire in the watershed would

spread to 46,000 acres within two days. ‘‘The mayor [of Santa Fe], regional forester [for the

Forest Service’s Southwest Region], and others questioned the length of time involved.’’ Santa

Fe NF, appendix C, pp. C–13, C–19.

also of limited value because they do not provide statistically valid data on species

occurrence.70

Ineffective Public Involvement

Public participation is an essential part of public land management in a democracy. National forest management has always incorporated some form of public involvement. Over the years, however, the role of public involvement has changed.

Since the 1960s, top-down approaches have gradually given way to bottom-up approaches based on partnerships.

Today, the Forest Service encourages competing interests to sit down and reason

together. The final decision still rests with the agency, but a collaborative approach

can yield better-informed decisions with broader public support than in the past.

Collaboration takes time, but it can build constructive long-term relationships and

dialogue, leading to decisions that are sustainable.71

Of course, collaboration is no silver bullet. Collaboration has worked well primarily where it has succeeded in building a basis for mutual trust (see the sidebar

below). Where distrust remains, results have been mixed.

In the Santa Fe case example, according to the line officer, ‘‘local constituents simply do not trust the Forest Service to do the right thing.’’72 A suspicious public demanded more information than technically needed to justify a relatively simple fuels

reduction project.73 The Forest Service spent nearly five years and more than $1

million on project planning. Much of the time was spent on collaborative efforts to

build public trust and support for the project. Given the urgent need for the project,

some questioned the value of the time spent.74

The emerging collaborative approach hinges on the Forest Service’s ability to hold

open discussions with stakeholders. That ability can be constrained by procedural

barriers associated with FACA, administrative appeals, prolonged delays, uneven

standards for judicial review, and the Forest Service’s own uneven expertise in collaboration.

PONDEROSA PINE FOREST PARTNERSHIP*

‘‘Some kind of intervention was necessary,’’ said Mike Preston, a commissioner for

Montezuma County in southwestern Colorado.

For years, bitter conflicts over timber harvest had slowly ground public land management to a halt. Meanwhile, the ponderosa pine forest—historically open, with

lots of grasses under the big, old trees—continued to decline, choked by ‘‘dog-hair’’

thickets of invading small trees. Catastrophic fires threatened each year to incinerate the entire forest and cook the soils, doing long-term ecological damage.

The county decided to try something new. It brought together various

sides’loggers and environmentalists, state and federal managers, college researchers

and facilitators—in a collaborative experiment called the Ponderosa Pine Forest

Partnership.

Each partner has a mutually shared responsibility for community and forest sustainability. Partners build new relationships based on shared values, shared knowledge, and constructive action.

The experiment has worked because the partners discovered a basis for mutual

trust. Traditional relationships, all too often based on mutual recrimination, have

given way to new arrangements in which ecology drives the economics of forest restoration.

Based on principles of adaptive management, the San Juan National Forest

marks trees to be left standing. Then local loggers remove the remainder, using ecologically sound techniques. Next come the controlled burns. The fires burn off brush

and add nutrients to the soil but kill few trees.

53

75For example, under the Secure Rural Schools and Community Self–Determination Act of

2000. 76 NFMA, 16 U.S.C. 1612(b), provides for the involvement of FACA-chartered advisory boards

in forest planning. 77 41 CFR 102–3.40. There are also statutory exemptions, such as section 204 of the Unfunded

Mandates Reform Act of 1995, that exempt advisory committees whose membership consists of

state, local, and tribal elected officials or their designees, and where their meetings are concerned with managing federal programs with intergovernmental responsibilities or administration. 78 106 Stat. 1419. 79 36 CFR 215. 80 43 CFR 1610.5–2. For example, BLM decisions are appealable to the Interior Board of Land

Appeals, and the National Park Service has no appeals process. 81 E-mail memorandum from Robert Pierson, planning director, USDA Forest Service, Southern Region, 24 April 2002.

The result is astounding. Thousands of acres in the forest’s ponderosa pine zone

have been restored to open, sun-filled expanses, with meadow like floors and clumps

of large trees. ‘‘It’s a much better approach to forestry than we’ve seen elsewhere

in the national forest,’’ said Mark Pearson, executive director of the San Juan Citizens Alliance. ‘‘People can get timber products off the forest at the same time that

they’re supporting the ecosystem.’’

* Based on Jim Greenhill, ‘‘Partnership Reduces Fire Danger, Helps Forests With

Logging,’’ The Durango Herald, 9 May 2002.

FACA Constraints

One increasingly desirable—and sometimes necessary75—option for line officers is

to utilize broadly representative public groups to provide consensual advice on

watershed- or landscape-level projects. Consensus goes beyond collaboration; it entails agreement reached by a group through its own decision-making process. If the

Forest Service decides to utilize such a group, it is required by FACA to charter an

advisory committee.76 Under USDA regulations, the chartering process is usually so

laborious and time-consuming that its potential advantages have never been fully

realized—and, until recently, seldom explored.

In August 2001, new FACA regulations issued by the General Services Administration went into effect. The new regulations exempted some groups from FACA requirements, including groups with members who are not actually managed or controlled by the executive branch, who provide individual advice, or who exchange

facts or information.77

However, when the exemptions do not apply, then the Forest Service must still

go through the time-consuming process of chartering an advisory committee. The alternative is to use methods that do not trigger FACA requirements. Such methods

would not facilitate the consensual approaches that might work best in some situations.

Administrative Appeals

The Forest Service’s procedure for administrative appeals allows citizens to challenge a line officer’s decision to proceed with a project. Although the Forest Service

has long had an administrative appeals process, none was legally required for the

agency until the 1993 Interior and Related Agencies Appropriation Act.78 The Forest

Service is now required by law to give public notice and an on-the-record comment

period for proposed actions covered by environmental assessments and findings of

no significant impact.79 Other federal land managers have administratively established review procedures or no appeals process at all.80

Administrative appeals can greatly delay a project. For time-sensitive projects, results can be disastrous. For example, unless insect-infested trees are swiftly removed, infestations can spread to healthy forests and even to nonfederal lands. In

the Southeast, southern pine beetle infestations have repeatedly spread from national forests to private lands because the Forest Service was unable to complete

environmental analysis and take action soon enough to prevent it.81

Moreover, the opportunity to appeal can discourage collaboration. If a group’s only

chance to affect an outcome is before a decision is made, its incentive to engage from

the outset in collaborative decision-making will be strong. However, if the group can

later appeal the decision, it can ignore opportunities for predecisional collaboration

and focus instead on postdecisional challenges. Instead of helping parties work out

54

82 Case examples consistently suggest that appeals do not help resolve disputes. In the

Megram case example, ‘‘[T]he appeals process did not change the forest’s decision. It provided

neither the means nor the incentive to negotiate a resolution that addressed both the Forest

Service’s concerns and the appellants’ core objections’’ (Six Rivers NF, appendix C, p. C–27). In

the Indian River case example, ‘‘The Indian River, like most rivers on the Hiawatha National

Forest, was heavily damaged during the log drives of the early 20th century. However, the

plaintiffs did not want to see any management activities within the corridor, even if designed

to restore the river system.—[T]he [high] level of public acceptance [for the project] by the majority of stakeholders was not increased by the litigation’’ (Hiawatha National Forest, ‘‘Indian

River Watershed Restoration Project,’’ appendix C, pp. C–34–35). 83Santa Fe NF, appendix C, p. C–20. 84Santa Fe NF, appendix C, p. C–19. 85 In the Megram case example, a fuels treatment project was delayed for more than a year

by administrative barriers related to appeals. By the time the project proceeded, it was too late;

a fire burned through most of the project area before fuels could be treated. See Six Rivers NF,

appendix C, pp. C–24–25. 86 Bitterroot NF, appendix C, p. C–10. 87 In the case example of the Morgan Falls trail reroute—a noncontroversial ‘‘white-hat’’

project—planning and analysis took about 20 months, a length of time that ‘‘generally amazed

and disheartened’’ local people, according to the line officer. ‘‘The process is frustrating for many

local publics and employees due to the amount of time it takes to put an action in place.’’

Chequamegon–Nicolet NF, appendix C, p. C–41. 88 Hiawatha NF, appendix C, p. C–34.

their differences, the appeals process can all too easily become a tool for obstruction.82

In the Santa Fe case example, the national forest spent years consulting with the

public and tailoring its municipal watershed restoration project accordingly. The effort paid off: A broad consensus emerged behind the final project decision. However,

two groups have threatened to challenge the decision. If the challenge materializes,

it ‘‘would illustrate a rather common situation,’’ according to the local line officer.

‘‘The agency often works diligently and collaboratively to design a project acceptable

to constituents, only to have implementation stalled by a very small minority relying on esoteric legal arguments.’’83

However, most collaborative groups recognize that Forest Service decisions are

subject to appeal but choose to work with the agency, anyway. Recent experience

suggests that a collective sense of ownership flows from decisions reached through

collaborative processes. Local peer pressure can sometimes—but not always—help

influence appellants to settle their cases. ‘‘Although challenge is still possible,’’ noted

the line officer in the Santa Fe case example, ‘‘many believe that residents and

members of environmental organizations that have been engaged throughout the

process will exert pressure on potential litigants to allow implementation to proceed.’’84

Procedural Delays

For time-sensitive projects, merely delaying implementation can be enough to stop

work from ever beginning.85 The ability of a single group to control the process can

discourage groups from participating at all if it seems a waste of time. In the Bitterroot case example, litigious groups ‘‘appeared to many to push the majority of local

interests out of the picture,’’ according to the line officer. Thereafter, what was initially a highly productive process of public involvement ‘‘seemed to dissolve into a

process of litigation.’’86

Even if there are no appeals, it can still take a long time for work to begin.87 In

the Indian River case example, the public appreciated the need for environmental

analysis and public participation, but was frustrated by the amount of time involved. ‘‘Questions arise as to why professional input and documents need to be continually revised to deal with new information or concerns,’’ noted the line officer,

‘‘and why it is necessary to document everything in great detail in anticipation of

appeals.’’88 Appeals and litigation did result, even though the project—to restore a

National Wild and Scenic River corridor degraded by use—was relatively noncontroversial; the EA generated only five comments, including those from the groups

that appealed and litigated. It took more than two years after initial scoping to finally reach a settlement.

Public discouragement over procedural delays can prevent the Forest Service from

forming and sustaining valuable partnerships. For example, the National Wild Turkey Federation, through a partnership agreement, helps the Forest Service create

walk-in areas, plant wildlife openings, develop water resources, and conduct prescribed burns on national forest land. Many species benefit from the projects, including fire-dependent plants and threatened and endangered wildlife, such as the redcockaded woodpecker and Indiana bat. Biologists from the Federation provide the

Forest Service with technical advice and assistance. After generating the necessary

55

89Personal communication with Dr. James Earl Kennamer, president of the National Wild

Turkey Federation. 90Ohio Forestry Association v. Sierra Club, 523 U.S. 726 (1998). 91See, e.g., Wilderness Society v. Thomas, 188 F.3d 1130, 1133 n.1 (9th Cir. 1999) (forest

plans ripe for review of NEPA claim); Heartwood v. Forest Service, 230 F.3d 947 (7th Cir. 2000)

(NEPA challenge to timber categorical exclusion ripe for review); Coalition for Sustainable Resources v. Forest Service, F.3d 1244 (10th Cir. 2001) (ESA challenge to forest plan not ripe for

review). 92Whether the ‘‘mere presence’’ of an extraordinary circumstance (e.g., listed species, steep

slopes, or highly erosive soils) eliminates the possible use of a categorical exclusion has been

the subject of considerable debate. See for example Federal Register 48412, 48414 (20 September 2001). 93 Brett KenCairn, ‘‘Public Agencies in Collaboration: A Panacea to Gridlock or the Next Big

Debacle?’’ Report to the Forest Service’s National Leadership Team (October 2000). KenCairn

is the Director of Indigenous Community Enterprises in Flagstaff, Ariz.

funds and providing technical support, the Federation’s members expect the Forest

Service to deliver the associated projects. Prolonged delays damage the agency’s

credibility as a partner and discourage the Federation from continuing support.89

Standards for Judicial Review

Evolving case law for NFMA, NEPA, and other statutes has slowly defined what

is required of national forest land managers. Legal issues remain unaddressed or

unresolved between jurisdictions, requiring the agency to rely on its own interpretation of appropriate legal standards. The resulting uncertainty for national forest

managers constrains cross-jurisdictional collaboration.

In 1998, for example, 22 years after NFMA became law, the Supreme Court addressed the timing of judicial review of forest plans with regard to NFMA claims.90

Yet questions still remain regarding the timing of judicial review for forest plans

and projects.91 Other issues that have not been resolved include:

• appropriateness of the use of a NEPA categorical exclusion if ‘‘extraordinary circumstances’’ are present, i.e., the ‘‘mere presence’’ conundrum92 (conflict among

the 7th and 9th, 10th Circuit Courts of Appeal);

• use of wildlife population data versus habitat to comply with 36 CFR

219.19(a)(6) (monitoring of management indicator species) (conflict among the

9th and 7th, 11th Circuit Courts of Appeal);

• application of the Migratory Bird Treaty Act to federal actions (conflict between

D.C. Circuit and 8th, 11th Circuit Courts of Appeal); and

• application of NEPA to the designation of critical habitat under ESA (conflict

between the 9th and 10th Circuit Courts of Appeal).

Agency Follow-through

Despite the Forest Service’s professed commitment to collaborative decision-making, partners have sometimes found it difficult to work with the agency. Problems

include a lack of institutional capacity for collaboration and an inability to keep

commitments.93

In some cases, despite major resource commitments by communities, the Forest

Service has failed to respond in kind. For example, by the time the last sawmill

closed in Hayfork, California, in the mid–1990s, the community had lost more than

50 percent of its wage income. Undeterred, community members formed the Watershed Research and Training Center to stimulate new employment and enterprise

through restoration and stewardship opportunities on federal lands. Those opportunities are great; national forests comprise more than 70 percent of the county, and

the need for thinning, fuels reduction, and forest restoration is clear.

The Watershed Center trained local people and developed new, environmentally

sensitive ways to use and market small-diameter forest materials and other byproducts from ecosystem restoration. The Forest Service’s State and Private Forestry

Staff provided considerable funding through its Economic Action Program; the agency’s Forest Products Laboratory gave research help through its extensive programs

for finding new ways to use unmerchantable forest materials, such as small trees

and brush.

Despite all the enthusiasm and support, fewer than 200 acres have actually been

treated since 1996. The Forest Service’s failure to proceed with local projects has

multiple reasons—bureaucratic process, competing regional and national priorities,

and a lack of project funding and follow-through. Whatever the reasons, the bottom

line is this: The national forest has not matched local commitment by taking decisive action. The result is supreme frustration and discouragement in the local community.

56

94Pinchot, pp. 281–299. 95See, for example, U.S. General Accounting Office, ‘‘Forest Service Decision–Making: A

Framework for Improving Performance’’ (Report to Congressional Requesters; GAO/RCED–97–

71; April 1997); and National Academy of Public Administration, Restoring Managerial Accountability to the United States Forest Service (August 1999). 96Personal communication with Gerald W. Williams, National Historian for the USDA Forest

Service, Washington Office, Washington, D.C. Relatively recent efforts to improve internal processes include the ‘‘reinvention’’ initiative of the mid–1990s and the process of revising the Forest

Service’s strategic plan, finalized in 2000. 97 USDA Forest Service, ‘‘Historical Fire Regimes by Current Condition Classes,’’ (Washington,

D.C.: USDA Fest Service, February 2001), Website <http://fs.fed.us/fire/fuelman/data—summery—tables.pdf>. 98See Hutch Brown and Russ Linden, ‘‘Daring to be Citizen Centered,’’ The Public Manager

(Winter 2001–02), pp. 49–52. 99See GAO, ‘‘Forest Service Decision–Making,’’ especially pp. 33–50. 100Six Rivers NF, appendix C, p. C–25.

Management Inefficiencies

The Forest Service has a proud tradition of conservation leadership and management, dating to President Theodore Roosevelt, who founded the Forest Service in

1905. Gifford Pinchot, the first Forest Service Chief, described the early Forest

Service’s record of efficiency and effectiveness, including a commendation for sound

fiscal management.94 In recent decades, however, the agency has struggled with

management problems.95 Systematic efforts to improve agency performance go back

to at least the 1980s.96

In some areas, the Forest Service has made progress. For example, the agency has

established standard, reliable frameworks for collecting information on nationwide

acres at risk from wildland fire;97 on the status of natural resources on the national

forests and grasslands (the Natural Resource Information System); and on recreational use of the National Forest System (the National Visitor Use Monitoring

Project). In 1999, to solve persistent accounting problems, the agency introduced its

Foundation Financial Information System. Together with the Bureau of Land Management and other partners, the Forest Service has sponsored Service First, an innovative approach that cuts through red tape for better service delivery.98

Nevertheless, the Bosworth Team identified several internal factors that continue

to keep work from getting done on the National Forest System: poor planning, confusion about planning requirements, a deteriorating skills base, decisions to monitor

individual species, and funding rules.

Poor Planning

The GAO has advised the Forest Service to better manage its planning process

by:99

• improving agency accountability for performance; • improving agency commitment to monitoring and evaluation, including standardized protocols; • adopting the recommendations of internal efficiency review teams; • involving the public more actively at the beginning of the planning process; and • developing common socioeconomic and environmental databases for use by forest planners and managers.

Case examples suggest that poor planning decisions not directly related to statutory or regulatory requirements or to the appeals process can cost the Forest Service

precious time. In the Megram case example, time was lost due to management’s decision to use provisions under the 1995 Rescission Act to expedite a time-critical salvage sale. ‘‘The forest now believes,’’ the line officer observed, ‘‘that the forest lost

nearly a year through its initial strategy and that using provisions under the Rescission Act, particularly for the inventoried roadless area, was a serious mistake.’’100

Confusion About Planning Requirements

In 1976, when NFMA passed, the Forest Service assumed that forest-level plans

would meet most or all NEPA requirements for environmental studies. That assumption proved overly optimistic as it became clear that the Forest Service could

not address project-level impacts at the programmatic level of evaluation for a 10-

to 15-year land management plan. After a number of court cases, the Forest Service

adopted a tiered planning process for developing NEPA dmentation at both the forest plan and project levels. The evolution of ecosystem managued for a third stage—

large-scale environmental analysis—to evaluate the effects of managment actions

across ownerships and even across states.

Requirements for multitiered planning and analysis have produced confusion

about decisions made and documentation required at the various scales, especially

57

101 In the Megram case example, confusion over ‘‘Survey and Manage’’ requirements under the

Northwest Forest Plan contributed to the remanding of an environmental assessment and associated project delay. As the line officer put it, ‘‘The forest had recently come under the Northwest Forest Plan, the requirements of which were complex and confusing, with little clear direction at first.’’ Six Rivers NF, appendix C, p. C–25. 102Personal communication with Forest Service Associate Chief Sally Collins, former supervisor of the Deschutes National Forest in Oregon. 103 National Academy of Public Administration, Center for Human Resources Management;

USDA Forest Service Workforce Plan. 104 Bitterroot NF, appendix C, p. C–11. 105 Any changes to the Forest Service’s budget rules will require coordination with the Chief

Financial Officer at USDA.

between the programmatic (forest plan and large-scale assessment) and project

levels.101 For example, a ranger district might pour resources into a watershed analysis and produce an in-depth, 300-page study, when all that was really needed for

landscape-level planning was a 15-page overview.102 Confusion about what is actually required and needed has led to delays and resource waste.

Deteriorating Skills Base

From 1992 to 2000, according to a report by the National Academy of Public Administration, the number of Forest Service employees fell by 23 percent.103 The

most negative competency assessment in the report went to the agency’s Ecosystem

Management Staff, which includes inter-disciplinary planning occupations. At the

very time when the need for interdisciplinary planning skills is rising, the Forest

Service is losing precisely those skills. To complicate matters, the requirements for

project planning have greatly increased in complexity, particularly with the introduction of large-scale environmental analysis, without a commensurate increase in

training.

Under the circumstances, line officers have difficulty completing project planning

on time. In the Bitterroot case example, about 60 employees with a wide range of

skills were needed for at least 12 months of planning work. The needed skills ‘‘are

in short supply relative to demand,’’ noted the line officer. ‘‘There is little systematic

training to develop these skills, and there are few support systems to reinforce any

limitations of the team.’’ Moreover, stress levels are high. ‘‘Many employees would

prefer to avoid such assignments,’’ observed the line officer, ‘‘because they perceive

them as unrewarding exercises in paperwork, with a greater chance of frustration

and failure than of success.’’104

Monitoring Individual Species

Some forest plans and other documents commit line officers to monitoring individual species, even though there is no clear idea of the feasibility, cost, or potential

benefit of doing so. Examples include the ‘‘Survey and Manage’’ provision in the

Northwest Forest Plan and the commitment by the Forest Service’s Southern Region to monitor populations of many species.

Commitments to monitor individual species are arguably discretionary. Moreover,

other options are available to protect species at risk. However, after commitments

are made, they are difficult to rescind or even to modify, even when they are found

to be inappropriate or unworkable.

Funding Rules

Ecosystem management facilitates projects that serve multiple objectives. For example, a thinning project can serve to restore wildlife habitat, reduce fuel loads, improve watershed condition and function, and produce forest products for local communities.

Logically, such projects with multiple objectives should be able to draw on various

sources of funding. Unfortunately, the Forest Service’s budget rules have not kept

pace with changing needs.105 Line officers have cited the budget structure as a

major impediment to the cooperative, integrated development of plans and projects.

SCOPE OF THE PROBLEM

The Forest Service has created some of its own problems and can rightly be expected to solve them itself. However, much of the problem lies beyond the Forest

Service’s own range of control. The Forest Service can, for example, do little to

change requirements associated with federal statutes. These requirements, according to the GAO, have made it difficult for the Forest Service ‘‘to predict when any

given decision can be considered final and can be implemented, increasing the costs

58

106GAO, ‘‘Forest Service Decision–Making,’’ pp. 10–11. 107Personal communication with Greg Asher, Office of Lands, USDA Forest Service, Washington Office. 108 Although the NEPA regulations state that a normal EIS shall not be more that 150 pages,

and less that 300 pages for proposals of unusual scope and complexity. 109Michael J. Gippert, ‘‘Why Can’t the Forest Service Make More Use of NEPA Tiering, and

Why Does the Forest Service Do So Much to Comply With NEPA?’’ (USDA Office of General

Counsel, draft report; 1 July 1997), in passim. 110These figures do not include 15,000 or more categorical exclusions completed each year.

Under CEQ regulations, no document must be completed for use of a ‘‘categorical exclusion’’ because the agency has found that this category of actions do not individually or cumulatively

have a significant effect on the human environment. 40 CFR 1508.4. An agency may decide in

its procedures to prepare environmental assessments even though it is not required to do so. 111Gippert, ‘‘Why Can’t the Forest Service Make More Use of NEPA Tiering,’’ p. 11. 112The Megram Fire Recovery Plan on the Six Rivers National Forest, Calif. E-mail memorandum from Forest Supervisor S.E. Woltering, Six Rivers National Forest, 22 April 2002 113See Chequamegon–Nicolet NF, appendix C, pp. C–39–42. 114See Santa Fe NF, appendix C, p. C–16.

and time of decision-making and reducing the agencies’ ability to achieve the objectives in their plan.’’106

Workload

The Forest Service manages 192 million acres of national forest land. That

amounts to 8.5 percent of the land area of the United States, an area the size of

the original 13 colonies. The National Forest System comprises 155 national forests

and grasslands with 585 ranger districts in 44 states and Puerto Rico.107

Under NFMA, the Forest Service is required to prepare forest plans for the entire

National Forest System. Forest plans are generally 300 pages long.108 Each forest

plan is tied to a programmatic EIS covering an area of about 1 to 3 million acres.

Forest plan EISs are about 500 pages long, though CEQ NEPA regulations encourages agencies to limit normal EISs to 150 pages. The entire process of preparing

and finalizing a forest plan can take years; for example, it might take five years

to prepare a 15-year forest plan. As new information emerges, the Forest Service

routinely prepares forest plan amendments and new programmatic EISs. The

agency requires review of environmental documentation every three to five years to

determine whether it needs to be updated.109

At any given time, every ranger district has many projects underway. Under

NEPA, environmental analysis must precede many ground-disturbing activities on

federal land. The Forest Service produces about 5,000 EAs in support of ‘‘findings

of no significant impact,’’ which document the agency’s judgment that an EIS is not

required. The Forest Service produces about 120 project-level EISs per year, more

than any other federal agency.110 EISs can be hundreds and EAs dozens of pages

long, particularly in contentious cases. Agency requirements for documentation are

rigorous. At training sessions, the USDA Office of General Counsel tells Forest

Service employees that the rule for judicial review of an agency action is, ‘‘If you

did it, but you didn’t write it down or you can’t find it or you can’t find it fast, you

didn’t do it.111 Documentation associated with one case example has reached 10,000

pages.112

The entire NEPA process for a project, from scoping to implementation, can normally take more than a year. For example, the Morgan Falls Trail Reroute Project

was a noncontroversial project with a widely accepted need. There were relatively

few public comments and no appeals. Yet planning for the project, from initial

scoping to a decision notice, took about 20 months.113

In some cases, particularly where public interest is high, the planning process can

take much longer. Planning for the Santa Fe Municipal Watershed Project outside

Santa Fe, N.M., began in 1997 and did not produce a final EIS and record of decision until October 2001, a period of almost five years.114 If challenges follow, the

planning process can drag on for another year or more. In the Megram case example, delays associated with appeals and litigation have prevented most fuels treatments from taking place on a blowdown that occurred in December 1995, almost

seven years ago.

Costs

What does all the time spent on planning, analysis, and documentation cost? Although exact figures are not available, educated guesses by Forest Service professionals provide some insight. A 1999 report by the National Academy of Public Administration, based on interviews with Forest Service personnel, estimated that

planning and assessment consume 40 percent of total direct work at the national

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115 NAPA, Restoring Managerial Accountability, p. 18. 116GAO, ‘‘Forest Service Decision–Making,’’ p. 4. 117 Bitterroot NF, appendix C, p. C–10. 118Santa Fe NF, appendix C, p. C–19. 119For an authoritative discussion of changes in historical forest ecosystems in the West, see

Stephen F. Arno, ‘‘Fire in Western Forest Ecosystems,’’ in James K. Brown and Jane Kapler

Smith (eds.), Wildland Fire in Ecosystems: Effects of Fire on Fauna (RMRS–GTR–42-volume 2;

Fort Collins, CO: Rocky Mountain Research Station, 2000), pp. 97–120. 120Presentation by Ross W. Gorte, Specialist in Natural Resources Policy, Congressional Research Service, on 21 May 2002 as part of a Congressional Briefing Conference for the USDA

Forest Service, Government Affairs Institute, Washington, D.C. 121See, for example, Hiawatha NF, appendix C, p. C–35: ‘‘The Hiawatha [National Forest] operates under the assumption that every decision will be appealed.—There is a general sense

that some groups ‘‘throw anything at the wall to see if something sticks’’ relative to issues raised

in response to public involvement efforts.’’ In the Morgan Falls case example, ‘‘This project was

not appealed, but the level of effort put into the document and background material was made

with potential appeals in mind.’’ Chequamegon–Nicolet NF, appendix C, p. C–41. 122Six Rivers NF, appendix C, p. C–23.

forest level.115 That would represent an expenditure of more than $250 million per

year, or more than 20 percent of the congressional appropriations for managing the

National Forest System.

Of course, not all planning is time wasted. Part of that $250-million planning expenditure would be money well spent. However, the GAO has cited an internal

Forest Service estimate that ‘‘inefficiencies within this process cost up to $100 million a year at the project level alone.’’116

In the case example of the Bitterroot National Forest, the national forest tracked

planning costs for its fire recovery project following the 2000 fires. Treatments were

proposed on about 80,000 acres. With some costs still outstanding, Forest Service

employees spent about 15,000 person-days, or 57 person-years, on planning the

project.117 In addition, the national forest contracted for a fire effects study. Total

costs for analysis and documentation amounted to about $1 million, including more

than $100,000 in printing and mailing costs.

Are such high planning costs for individual projects justifiable? In the case example of the Santa Fe municipal watershed, the planning cost for a project covering

less than 8,000 acres was more than $1 million.118 At the estimated treatment cost

of $1,500 per acre, the money spent on planning could have treated more than 600

acres—only a small fraction of the project area, but at least some work could have

begun.

Appeals and litigation are related to another procedural cost that is often poorly

understood. Today, many forests are far denser than they were historically.119 Restoring healthy ecosystems often requires removing some of the trees and undergrowth, which is expensive. Where commercially viable, a timber sale can help defer

the costs. In fact, most timber sales on the national forests are at least partly designed to return lands to a healthy condition.

The vast majority of timber sales proceed to completion unchallenged.120 However, some groups have successfully used appeals to obstruct timber sales, and

Forest Service employees therefore treat almost every ground-disturbing project as

a potential target.121 They spend a tremendous amount of time trying to ‘‘bulletproof’’ project planning against appeals and litigation. Challenges themselves, if

they materialize, can be enormously time-consuming. Overall, the delays, even if a

project is allowed to move forward, can reduce or eliminate the commercial value

of removed materials, ultimately killing a timber sale. Figure 1 suggests a correlation between the rising number of appeals in recent years and falling volumes of

timber harvest.

Timber sales can be the only feasible tool a national forest has to restore a forest

to health. Process-related delays can take that tool away. The Megram case example

is a case in point. In 1995, the Six Rivers National Forest in California responded

to a 35,000-acre blowdown by proposing to treat the resulting fire hazards through

a salvage sale. ‘‘As often happens,’’ noted the line officer, ‘‘the only way the forest

could finance fuels treatment was through a commercial timber sale that generated

enough funds to finance other treatments, such as prescribed fire.’’122

Constrained by administrative hurdles, the salvage sale failed to proceed until

1998. In 1999, the 59,000-acre Megram Fire burned through the area. It was exactly

the kind of event that the national forest was trying to forestall by reducing hazardous fuels.

60

123Memorandum from Forest Supervisor S.E. Woltering, Six Rivers National Forest, 22 April

2002. 124GAO, ‘‘Forest Service Decision–Making,’’ p. 12.

Line officers prepared a postfire recovery plan for treating the areas most at

risk—a little more than a thousand acres. Again, employees went to great lengths

to prepare all the necessary studies and documentation, only to be taken to court,

where a judge threw out the EIS. ‘‘Nothing will change on the ground,’’ observed

the forest supervisor, ‘‘other than we’ll be able to salvage less because of the lost

value in the trees.’’123

NEED TO SOLVE THE PROBLEM

The Megram case example and the others treated in this report raise serious

questions about the Forest Service’s statutory, regulatory, and administrative

framework: Does it produce efficient, effective service delivery? Does it permit the

Forest Service to meet environmental challenges? And does it help the Forest

Service build and sustain public trust?

Efficiency and Effectiveness

GAO has concluded that ‘‘the Forest Service’s decision-making process is clearly

broken and in need of repair.’’124 The Forest Service does complete thousands of

projects each year, thanks to the dedication and perseverance of its employees. However, it can take more than a year—and often many years—to complete the planning for projects, even for ones that are relatively simple and noncontroversial.

The need for so much planning is questionable. For example, much of the environmental information that the Forest Service collects is of dubious scientific or practical value. Although it might be needed to meet procedural requirements or to

withstand appeals and litigation, resources spent on process cannot be put to other

61

125 Aldo Leopold, ‘‘The Farmer as a Conservationist,’’ in The River of the Mother of God and

Other Essays by Aldo Leopold, ed. Susan L. Flader and J. Baird Callicot (Madison, Wisc.: University of Wisconsin Press, 1991), p. 257. 126See, for example, Bitterroot NF, appendix C, p. C–17: ‘‘There was no indication that ‘conflicting laws’ were an issue in this case.’’

uses. The opportunity costs alone—which might range into the tens of millions of

dollars—suggest a fundamental lack of efficiency and effectiveness in national forest

management.

Healthy Lands

Limited resources might be put to better use in restoring healthy, resilient ecosystems. Large portions of the National Forest System are in poor or declining

health. Much more could be done on the ground to restore ecosystems on federal

lands; in the words of Aldo Leopold, ‘‘Conservation—is a positive exercise of skill

and insight, not merely a negative exercise of abstinence or caution.125 Neither ecosystem values nor the public are well served when responsible management actions

take a back seat to process.

Obviously, some planning is required; interagency consultations and environmental studies are certainly needed to ensure that management actions are sound.

However, consultation requirements—in their current form—often shift the focus of

management away from the long-term health of the land. Moreover, procedural requirements for studies—again, in their current form—often produce long decisionmaking delays that can prevent needed work from happening before it is too late.

Most scientists and land managers understand the need for adaptive management. Managers can and should take responsible action without knowing everything

that might ever be known about a piece of land. The trick is to carefully monitor

the effects on the land and adjust future management actions accordingly. Unfortunately, the Forest Service’s procedural framework is poorly suited to adaptive management.

Collaborative Decision-making

At its core, the debate over natural resource use on public lands is driven by differences over values. Sound science and competent land management cannot resolve

such differences. In a democracy, interested citizens must have ample opportunities

for working out their differences through a decision-making process that is fair, constructive, and participatory. The environmental laws were partly designed to help

establish that process.

Today, in the best tradition of our environmental laws, line officers are building

on statutory requirements for public involvement by fostering collaborative decisionmaking that is both timely and effective. Airing differences and finding common

ground take time, but collaboration ultimately makes national forest management

more efficient and effective by generating public support for decisions made and

work done on the ground.

Too often, though, the Forest Service’s procedural framework discourages collaborative decision-making. For example, the agency’s appeals process tends to feed distrust rather than build on shared values and goals. Where process favors obstruction, the effects on land management can be devastating, shaking public faith in the

Forest Service’s ability to care for the land and serve people.

Opportunities

Reasonable people will disagree on the nature, scope, and complexity of the statutory, regulatory, and administrative hurdles facing the Forest Service. However,

most people will agree on the core values of good government in federal land management: efficient, cost-effective service delivery; healthy, resilient ecosystems; and

meaningful public involvement. These values generally transcend conflicts among

competing groups over specific values associated with natural resources on public

lands.

The environmental laws were designed to promote transcendent values of good

government. Evidence suggests that the laws are not the problem. The Thomas Report, business process analysis, and case examples reveal no fundamental conflicts

among the laws.126 The problem lies in their implementation through a maze of

rules and regulations that has evolved over the years.

The rules and regulations have placed the Forest Service in a serious predicament, whereby the process defeats its own purpose. In the Santa Fe case example,

one Forest Service critic put it this way: ‘‘I would like to just say that we are very

concerned about the risk of wildfire in the watershed.—But we will require the

Forest Service to follow the letter of the law. These laws are established to protect

62

127 Bryan Byrd, Executive Director, Forest Conservation Council, quoted in Santa Fe NF, appendix C, p. C–20.

the environment.’’127 In the name of environmental protection, the focus has too

often shifted from protecting resources to policing processes. The problem is this: We

are following the letter of our environmental laws without infusing their spirit into

what is actually happening on the land.

Opportunities abound for reviving the spirit of our environmental laws. Advances

in science and technology have paved the way for a new era of public land management through collaboration and flexible decision-making. Ecosystem-based approaches grounded in adaptive management promise to reverse decades of land

health decline and restore healthy, resilient ecosystems far into the future.

The key is to tailor the Forest Service’s statutory, regulatory, and administrative

framework to the new opportunities. Part of the solution will be internal; the Forest

Service has an obligation to reform its administrative processes accordingly. However, the problem goes far beyond the range of control of any single agency. Over

the years, a central lesson for the Forest Service has been the need to work with

partners. By applying that lesson, the Forest Service can strengthen its partnerships and find collaborative ways out of its process predicament.

NOTE: The report in its entirety has been retained in the

Committee’s official files.

An article from The Oregonian submitted for the record by Mary

McCormick, Staff Assistant to the Deputy Chief for Research and

Development, Forest Service, U.S. Department of Agriculture,

follows:]

Article submitted for the record by Mary McCormick, Staff

Assistant to the Deputy Chief for Research & Development, WO/USDAFS

COLLABORATE FOR HEALTHY NATIONAL FORESTS

AUGUST 6, 2002: THE OREGONIAN

BY ROBERT LEWIS JR. WASHINGTON, D.C.

On July 27 you clearly reported one side of an ever-increasing

debate concerning management of our national forests. The crux of

your story, ‘‘Scientists chastise Forest Service chief,’’ focused on a

letter by a group of scientists criticizing the U.S. Forest Service

and Chief Dale Bosworth for his congressional testimony on why

the Forest Service cannot accomplish more on the land. As the

Forest Service’s deputy chief for research and development, I have

several comments.

The six scientists who wrote the letter disagreed with Bosworth’s

statement that a report they prepared, known as the Beschta Report, aided in preventing the Forest Service from working to restore ecosystem health. The Forest Service has clear evidence that

the Beschta Report prevented or delayed Forest Service management action.

A compendium of opinions and reviews were cobbled together,

then passed among similar interested individuals for further endorsement, leading to a conclusion of declared fact. This is not good

science; it is not even science. It is marketing.

An internal Forest Service review of the Beschta Report was conducted by a group of eight Forest Service scientists in 1995. Each

scientist provided independent comments on the Beschta Report. A

recurring concern by the reviewers in 1995 was that ‘‘many stateVerDate 11-MAY-2000 12:09 Mar 14, 2003 Jkt 000000 PO 00000 Frm 00066 Fmt 6633 Sfmt 6602 80160.TXT HRESOUR1 PsN: HRESOUR1
63

ments and assumptions made in this paper (Beschta Report) are

unsubstantiated. In general, this paper seems to represent a hasty

response to potential fire sales in the west [sic 1994]. The literature

cited is extremely limited and largely ignores existing literature

concerning fire, soil, and forest health related to forest problems

east of the Cascade Range.’’

My sincere hope is that the science community will stop placing

blame and start figuring out how to solve the problem. Many agree

that we need to thin and/or underburn many overgrown forests to

make ecosystems healthier and to reduce the potential for catastrophic fire.

Where a fire has already burned through, we might need to remove some of the burned trees to prevent another catastrophic fire

in future years. The Forest Service has more than doubled the

number of acres treated on the national forests in recent years, but

we need to do much more. Procedural constraints are hindering

progress on the ground.

We should base our decisions on the best science available, then

monitor the results and adapt our management accordingly.

All over the country, people are sitting down together at the local

level to hammer out agreements everyone can live with. The Forest

Service is only one partner among many. Collaborative stewardship

and adaptive management hold the key to a future of healthy, resilient national forests and grasslands, especially when the scientific community works together to bring new knowledge to the

decision-makers. I hope we can collaborate and work toward the

same mutually beneficial objectives for both public and private

lands.

Æ