[House Report 107-770]
[From the U.S. Government Publishing Office]
107th Congress Rept. 107-770
HOUSE OF REPRESENTATIVES
2d Session Part 1
======================================================================
HEALTHY FORESTS AND WILDFIRE RISK REDUCTION ACT OF 2002
_______
October 31, 2002.--Ordered to be printed
_______
Mr. Hansen, from the Committee on Resources, submitted the following
R E P O R T
together with
ADDITIONAL AND DISSENTING VIEWS
[To accompany H.R. 5319]
The Committee on Resources, to whom was referred the bill
(H.R. 5319) to improve the capacity of the Secretary of
Agriculture and the Secretary of the Interior to expeditiously
address wildfire prone conditions on National Forest System
lands and other public lands that threaten communities,
watersheds, and other at-risk landscapes through the
establishment of expedited environmental analysis procedures
under the National Environmental Policy Act of 1969, to
establish a predecisional administrative review process for the
Forest Service, to expand fire management contracting
authorities, to authorize appropriations for hazardous fuels
reduction projects, and for other purposes, having considered
the same, report favorably thereon with amendments and
recommend that the bill as amended do pass.
The amendments are as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Healthy Forests and
Wildfire Risk Reduction Act of 2002''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Purpose.
Sec. 3. Definition of wildland-urban interface and process for revision
of definition.
Sec. 4. Other definitions.
Sec. 5. Hazardous fuels reduction projects covered by this Act.
Sec. 6. Reservation of hazardous fuels reduction project funds for
projects in wildland-urban interface.
Sec. 7. Environmental analysis.
Sec. 8. Forest Service administrative appeal process.
Sec. 9. Judicial review in United States district courts.
Sec. 10. GAO audit.
Sec. 11. Stewardship contracting.
Sec. 12. Duration.
Sec. 13. Rules of construction.
Sec. 14. Relation to Collaborative 10-year Strategy for Reducing
Wildland Fire Risks to Communities and the Environment.
Sec. 15. Monitoring by independent panel.
Sec. 16. Authorization of appropriations.
SEC. 2. PURPOSE.
The purpose of this Act is to reduce the risks of damage to
communities, municipal water supplies, and some other at-risk
landscapes from catastrophic wildfires.
SEC. 3. DEFINITION OF WILDLAND-URBAN INTERFACE AND PROCESS FOR REVISION
OF DEFINITION.
(a) Initial Definition.--In this Act, the term ``wildland-urban
interface'' means a geographic area designated by the Secretary
concerned, the Chief of the Forest Service, or the Director of the
Bureau of Land Management as an area--
(1) that includes an Interface Community or Intermix
Community (as those terms are defined on page 753 of volume 66
of the Federal Register, as published on January 4, 2001);
(2) on which conditions are conducive to large-scale fire
disturbance events; and
(3) for which a significant risk exists of a resulting spread
of the fire disturbance event, after ignition, that would
threaten human life and property.
(b) Revision of Definition.--Within three years after the date of the
enactment of this Act, the Secretary of Agriculture and the Secretary
of the Interior shall submit to Congress any proposed revision of the
definition of wildland-urban interface in subsection (a) that the
Secretaries find would better reflect regional and local differences in
the intermixing of homes and other structures with Federal lands, the
types of fire threats facing such lands, and the forest and rangeland
types and conditions on such lands.
(c) Consultation.--In the case of Federal lands located in States
participating in the Western Governors' Association, the Secretary of
Agriculture and the Secretary of the Interior shall consult with the
Western Governors' Association in revising the definition proposed for
wildland-urban interface.
SEC. 4. OTHER DEFINITIONS.
In this Act:
(1) Condition class 2.--The term ``condition class 2'', with
respect to an area of Federal lands, means that--
(A) fire regimes on the lands have been moderately
altered from their historical range by either increased
or decreased fire frequency; and
(B) there exists a moderate risk of losing key
ecosystem components from fire.
(2) Condition class 3.--The term ``condition class 3'', with
respect to an area of Federal lands, means that--
(A) fire regimes on the lands have been significantly
altered from their historical return interval and fire
frequencies have departed from historical ranges by
multiple return intervals;
(B) there exists a high risk of losing key ecosystem
components from fire;
(C) vegetation composition, structure, and diversity
have been significantly altered; and
(D) the lands verge on the greatest risk of
ecological collapse as a result of fire.
(3) Congressional committees of jurisdiction.--The term
``congressional committees of jurisdiction'' means the
Committee on Resources and the Committee on Agriculture of the
House of Representatives and the Committee on Energy and
Natural Resources of the Senate.
(4) Day.--The term ``day'' means a calendar day.
(5) Federal lands.--The term ``Federal lands'' means--
(A) National Forest System lands; and
(B) public lands administered by the Secretary of the
Interior acting through the Bureau of Land Management.
(6) Hazardous fuels reduction project.--The term ``hazardous
fuels reduction project'' means a project undertaken on Federal
lands for the purpose of reducing the amount of hazardous fuels
present on the lands through the use of prescribed burning or
mechanical treatment. Chemical or biological treatment may only
be used in conjunction with prescribed burning or mechanical
treatment.
(7) Municipal water supply system.--The term ``municipal
water supply system'' means the reservoirs, canals, ditches,
flumes, laterals, pipes, pipelines, or other surface facilities
and systems constructed or installed for the impoundment,
storage, transportation, or distribution of drinking water for
a community.
(8) Other at-risk federal lands.--The term ``other at-risk
Federal lands'' means Federal lands identified by the Secretary
concerned as an area where windthrow or blowdown or the
existence or threat of large-scale disease or insect
infestation pose a significant threat to forest or rangeland
health and an attendant increase in the risk of catastrophic
wildfire.
(9) Secretary concerned.--The term ``Secretary concerned''
means--
(A) the Secretary of Agriculture (or the designee of
the Secretary) with respect to the Federal lands
described in paragraph (5)(A); and
(B) the Secretary of the Interior (or the designee of
the Secretary) with respect to the Federal lands
described in paragraph (5)(B).
(10) Scoping.--The term ``scoping'' means an open process
conducted in accordance with applicable regulations and agency
guidelines, including section 1501.7 of title 40, Code of
Federal Regulations, where applicable, as in effect on the date
of the enactment of this Act, during the preparation of a
hazardous fuels reduction project.
(11) Threatened and endangered species habitat.--The term
``threatened and endangered species habitat'' means Federal
lands identified in the listing decision or critical habitat
designation as habitat containing a threatened species or an
endangered species consistent with the Endangered Species Act
of 1973 (16 U.S.C. 1531 et seq.).
SEC. 5. HAZARDOUS FUELS REDUCTION PROJECTS COVERED BY THIS ACT.
(a) Covered Projects.--This Act applies only with respect to a
hazardous fuels reduction project undertaken by the Secretary concerned
on Federal lands found by the Secretary concerned to be in condition
class 3 (or condition class 2 and adjacent to, or intermingled with,
condition class 3 lands) if the Federal lands--
(1) are located in the wildland-urban interface;
(2) are located in such proximity to a municipal water supply
system that the risk of adverse effects to the water quality of
the municipal water supply from a catastrophic wildfire,
including the risk of erosion following a catastrophic
wildfire, necessitates use of the processes established under
this Act;
(3) are other at-risk Federal lands; or
(4) are not covered by paragraph (1), (2), or (3), but,
subject to subsection (b), are found by the Secretary concerned
to contain threatened and endangered species habitat.
(b) Additional Requirements for Threatened and Endangered Species
Habitat.--This Act does not apply to Federal lands described in
subsection (a)(4) unless--
(1) natural fire regimes are identified in a species recovery
plan as being important for the threatened species or
endangered species at issue or its habitat;
(2) the project will provide enhanced protection from
catastrophic wildfire for the species or its habitat; and
(3) the Secretary complies with any applicable guidelines
specified in the species recovery plan.
(c) Acreage Limitation.--Not more than 2,000,000 acres of the
aggregate of the Federal lands described in paragraphs (3) and (4) of
subsection (a) may be treated in any fiscal year by hazardous fuels
reduction projects for which the processes established under this Act
are used.
(d) Additional Limitation.--In conducting a hazardous fuels reduction
project for which the processes established under this Act are used, if
the Federal lands to be treated by the project contain fire resistant,
pre-fire-exclusion old and large trees, the Secretary concerned shall
limit the removal of such trees so as to maintain as nearly as possible
an ecologically optimum number of such trees, as determined by the
Secretary concerned on a project-by-project basis, appropriate for each
ecosystem type. The Secretary concerned shall also emphasize thinning
from below for the project.
(e) Exclusion of Certain Federal Lands.--This Act does not apply to
the following Federal lands:
(1) A component of the National Wilderness Preservation
System.
(2) Federal lands where, by Act of Congress or Presidential
proclamation, the removal of vegetation is prohibited or
restricted.
(3) Wilderness Study Areas.
(f) Protection of Roadless Areas.--The Secretary of Agriculture shall
not construct any new road in any Inventoried Roadless Area as part of
any hazardous fuels reduction project for which the processes
established under this Act are used.
SEC. 6. RESERVATION OF HAZARDOUS FUELS REDUCTION PROJECT FUNDS FOR
PROJECTS IN WILDLAND-URBAN INTERFACE.
(a) Reservation.--Of the total funds expended by the Secretary
concerned during each of the fiscal years 2003 through 2005 to plan and
carry out hazardous fuels reduction projects covered by this Act, not
less than 70 percent shall be expended for hazardous fuels reduction
projects on Federal lands in the wildland-urban interface.
(b) Priority Projects.--In conducting hazardous fuels reduction
projects covered by this Act, the Secretary concerned, in the sole
discretion of the Secretary, shall seek to give priority to those
projects that would provide the greatest protection to human lives and
property.
SEC. 7. ENVIRONMENTAL ANALYSIS.
(a) In General.--Except as provided in subsection (b), the Secretary
concerned shall conduct the environmental review for a hazardous fuel
reduction project covered by this Act in accordance with section 102(2)
of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)).
(b) Discretionary Authority to Eliminate Alternatives.--In the case
of a hazardous fuels reduction project covered by this Act, the
Secretary concerned is not required to study, develop, or describe any
alternative to the proposed agency action in any environmental
assessment or environmental impact statement prepared for the proposed
agency action pursuant to section 102(2) of the National Environmental
Policy Act of 1969 (42 U.S.C. 4332(2)). At the discretion of the
Secretary concerned, the Secretary may consider alternatives to the
proposed agency action.
(c) Effect of Proposed Permanent Road Construction.--If a proposed
hazardous fuels reduction project covered by this Act includes the
construction of a new permanent system road, the Secretary concerned
shall include consideration of one alternative that does not include
such road construction in any environmental assessment or environmental
impact statement prepared for the proposed agency action. At the
discretion of the Secretary concerned, the Secretary may consider
alternatives to the proposed agency action.
(d) Public Notice.--
(1) Quarterly notice.--The Secretary concerned shall provide
quarterly notice, in the Federal Register, a local paper of
record, and on an agency website, regarding all hazardous fuels
reduction projects of the Secretary concerned for which the
processes established under this Act are to be used.
(2) Public hearing.--Upon publication of the quarterly notice
under paragraph (1), the Secretary concerned shall conduct a
public meeting at an appropriate location in each unit of the
Federal lands for which hazardous fuels reduction projects are
proposed in the quarterly notice at which interested persons
may provide input on the quarterly notice.
(3) Special rule.--If an incident arises shortly after a
quarterly notice under paragraph (1) is published that the
Secretary concerned determines should be promptly addressed
through a hazardous fuels reduction project for which the
processes established under this Act are to be used, notice of
the project in the paper of record shall suffice for purposes
of this subsection.
(4) Content.--The notice required by this subsection shall
include the approximate date on which scoping for the hazardous
fuels reduction projects will begin and information regarding
how interested members of the public can take part in the
development of the project.
(e) Public Comment.--With respect to each hazardous fuels reduction
project for which the processes established under this Act are to be
used, the Secretary concerned shall conduct scoping in accordance with
applicable regulations and administrative guidelines in effect on the
date of the enactment of this Act. The Secretary concerned shall
provide an opportunity for public comment.
SEC. 8. FOREST SERVICE ADMINISTRATIVE APPEAL PROCESS.
(a) Administrative Appeal Process.--The Secretary of Agriculture
shall use the following administrative appeal process to consider
appeals regarding hazardous fuels reduction projects covered by this
Act to be conducted on National Forest System lands.
(b) Notice of Opportunity to Appeal.--
(1) Availability.--Under this administrative appeal process,
the environmental analysis document, analysis file, and
decision document for a hazardous fuels reduction project shall
be complete and available for public review once notice of the
decision document is provided in the local paper of record.
(2) Subsequent revision.--Except as provided in subsection
(e)(2), the environmental analysis document, analysis file, and
decision document may not be revised after it is made available
to the public unless the Secretary concerned provides new
public notice and recommences the time limits specified in this
section for the project.
(c) Submission of Notice of Intent to Appeal.--
(1) Eligibility.--To be eligible to appeal a hazardous fuels
reduction project under this administrative appeal process, the
person submitting the notice must have submitted specific and
detailed comments during the preparation stage of the project
on an issue specifically related to the project for which the
appeal is sought.
(2) Time limits.--Eligible persons shall be given a 10-day
period, beginning on the date the signed decision document for
the hazardous fuels reduction project is made available to the
public, during which to submit written notice of an intent to
appeal the decision. Notice submitted after the end of such
period shall not be accepted.
(3) Effect of failure to submit notice of intent to appeal.--
If valid notice is not submitted within the required 10-day
period, the hazardous fuels reduction project shall not be
subject to appeal under this administrative appeal process or
any other provision of law, and the decision document shall be
considered the final agency decision.
(4) Effect of timely submission.--Upon the timely filing of
notice under this subsection, the Secretary of Agriculture
shall take no action to implement the hazardous fuels reduction
project until the completion of the appeal process.
(d) Filing of Appeal.--If an eligible person timely submits notice
under subsection (c) with regard to a hazardous fuels reduction
project, the Secretary of Agriculture shall give the person a 15-day
period during which to file the administrative appeal. The 15-day
period shall begin at the end of the 10-day period required by
subsection (c), not on the day the notice is filed.
(e) Review of Appeal.--
(1) Time for review.--Upon receipt of the administrative
appeal with regard to a hazardous fuels reduction project, the
appeals officer shall consider and render a decision on the
appeal within 25 days.
(2) New decision document.--The appeals officer may sign a
new decision document correcting errors or otherwise modifying
the decision document, rather than remanding the case for
further proceedings. If the appeals officer signs a new
decision document, the appeals officer shall supplement the
record with explanatory analysis and documentation. The new
decision document shall be considered the final agency
decision.
(f) Negotiations.--The appeals officer may enter into negotiations
with the appellants and other interested persons who filed comments
during the preparation stage of the hazardous fuels reduction project.
Any decision document resulting from the negotiations shall be
considered the final agency decision.
(g) Relation to Existing Authority.--Section 322 of the Department of
the Interior and Related Agencies Appropriations Act, 1993 (Public Law
102-381; 16 U.S.C. 1612 note) shall not apply to a hazardous fuels
reduction project covered by this Act.
SEC. 9. JUDICIAL REVIEW IN UNITED STATES DISTRICT COURTS.
(a) Place and Time of Filing.--A hazardous fuels reduction project
covered by this Act shall be subject to judicial review only in the
United States district court for the district in which the Federal
lands to be treated under the project are located. Notwithstanding any
other provision of law, any challenge to the hazardous fuels reduction
project must be filed in such district court before the end of the 15-
day period beginning on the date on which the Secretary concerned
publishes, in the local paper of record, notice of the final agency
action. The Secretary concerned may not agree to, and a district court
may not grant, a waiver of the requirements of this subsection.
(b) Effect of Filing on Project.--Upon the timely filing of a
challenge to a hazardous fuels reduction project covered by this Act,
the Secretary concerned shall take no action to implement the project
until the district court has rendered a decision on the merits of the
appeal.
(c) Time for Decision.--
(1) In general.--Civil actions filed under this section shall
be assigned for hearing at the earliest possible date. Except
as provided in paragraph (2), the district court shall render
its final decision relative to any challenge within 60 days
after the date on which the challenge is brought. The challenge
shall not be dismissed as moot by the district court for
failure of the court to render its final decision within this
time period, including any extension provided pursuant to
paragraph (2).
(2) Extension.--The district court shall extend the deadline
specified in paragraph (1)--
(A) if the court determines that a longer period of
time is required to satisfy the due process
requirements of the United States Constitution;
(B) at the request of the United States (but not to
exceed 15 days and not on more than one occasion);
(C) at the request of one appellant (but only one
appellant and not to exceed 15 days and not on more
than one occasion); and
(D) at the discretion of the court (but not to exceed
30 days and not on more than one occasion) .
(3) Special master.--In order to reach a timely decision on a
challenge, the district court may assign all or part of any
such case or cases to one or more Special Masters for prompt
review and recommendations to the court.
(d) Judicial Relief.--The district courts shall have authority to
enjoin permanently or void a hazardous fuels reduction project covered
by this Act. On account of the effect of the timely filing of a
challenge to the hazardous fuels reduction project on the authority of
the Secretary concerned to implement the project, as provided by
subsection (b), no temporary restraining order or preliminary
injunction shall be issued by the district court in connection with the
project.
(e) Procedures.--The district court may set rules governing the
procedures of any proceeding brought under this section which set page
limits on briefs and time limits on filing briefs and motions and other
actions that are shorter than the limits specified in the Federal rules
of civil or appellate procedure.
(f) Appeal.--Any appeal from the final decision of a district court
in an action brought pursuant to this section shall be filed as
otherwise provided by law.
SEC. 10. GAO AUDIT.
(a) Audit Required.--Not later than 18 months after the date of the
enactment of this Act, and from time-to-time thereafter, the
Comptroller General shall conduct an audit of the implementation of
this Act to determine the extent to which the processes established
under this Act and the hazardous fuels reduction projects planned and
implemented using those processes are achieving the purpose of this
Act.
(b) Report Required.--The Comptroller General shall submit to the
congressional committees of jurisdiction a report containing the
results of each audit.
SEC. 11. STEWARDSHIP CONTRACTING.
(a) Secretary of Agriculture.--During the period beginning on the
date of the enactment of this Act and ending on September 30, 2005, the
Secretary of Agriculture, via agreement or contract as appropriate, may
enter into not more than an additional 15 stewardship and end result
contracts under the authority provided in section 347 of the Department
of the Interior and Related Agencies Appropriations Act, 1999 (as
enacted by section 101(e) of division A of Public Law 105-277; 16
U.S.C. 2104 note), for the performance of hazardous fuels reduction
projects (for which the processes established under this Act are used)
on National Forest System lands.
(b) Secretary of the Interior.--During the period beginning on the
date of the enactment of this Act and ending on September 30, 2005, the
Secretary of the Interior, via agreement or contract as appropriate,
may enter into not more than 26 stewardship and end result contracts
for the performance of hazardous fuels reduction projects (for which
the processes established under this Act are used) on Federal lands
described in section 4(5)(B), other than revested Oregon and California
Railroad and reconveyed Coos Bay Wagon Road grant lands. The
stewardship and end result contracts shall be entered into in the same
manner as provided for the Forest Service under section 347 of the
Department of the Interior and Related Agencies Appropriations Act,
1999 (16 U.S.C. 2104 note).
(c) Payment Basis.--Notwithstanding subsections (a) and (b), payments
under a stewardship and end result contract entered into under such
subsections may be on a fee for service basis to achieve the goals of
the hazardous fuels reduction project. Cash payments may be reduced by
the value of goods delivered by the contract, except that tree removal
or thinning under the project shall be governed solely by the goal of
fulfilling the purpose of this Act, not by the value of the goods
delivered.
(d) Cooperation.--To the extent practicable, the stewardship and end
result contracts authorized by this section shall be developed using a
collaborative process that includes local communities and public land
interest groups.
(e) Report on BLM Expansion.--Not later than 180 days after the date
of the enactment of this Act, the Secretary of the Interior shall
submit to the congressional committees of jurisdiction a report
regarding the desirability of expanding the authority under subsection
(b) to include--
(1) hazardous fuels reduction projects on those revested
Oregon and California Railroad and reconveyed Coos Bay Wagon
Road grant lands that are in condition class 3 or condition
class 2 and for which the processes established under this Act
may be used; and
(2) hazardous fuels reduction projects on any revested Oregon
and California Railroad and reconveyed Coos Bay Wagon Road
grant lands that are in condition class 3 or condition class 2,
but are covered by an exclusion under section 5(e).
SEC. 12. DURATION.
(a) In General.--The processes established under this Act shall be
available through September 30, 2005, with regard to hazardous fuels
reduction projects described in section 5(a).
(b) Continuation of Noticed Projects.--A hazardous fuels reduction
project identified in a quarterly notice published in the Federal
Register as required by section 7(c) before the date specified in
subsection (a) may proceed to completion after that date using the
processes established under this Act.
SEC. 13. RULES OF CONSTRUCTION.
(a) Relation to Other Authority.--Nothing in this Act shall be
construed to affect, or otherwise bias, the use by the Secretary
concerned of other statutory or administrative authorities to implement
a hazardous fuels reduction project on Federal lands identified in
section 5(e) where the use of the authorities established under this
Act is prohibited.
(b) Relation to Legal Action.--Nothing in this Act shall be construed
to prejudice or otherwise affect the consideration or disposition of
any legal action concerning the Roadless Area Conservation Rule, part
294 of title 36, Code of Federal Regulations, as amended in the final
rule and record of decision published in the Federal Register on
January 12, 2001 (66 Fed. Reg. 3244).
SEC. 14. RELATION TO COLLABORATIVE 10-YEAR STRATEGY FOR REDUCING
WILDLAND FIRE RISKS TO COMMUNITIES AND THE
ENVIRONMENT.
The Secretary concerned shall conduct immediately and to completion
hazardous fuels reduction projects on Federal lands consistent with the
implementation plan for the ``Collaborative 10-year Strategy for
Reducing Wildland Fire Risks to Communities and the Environment'',
dated May 2002, which was developed pursuant to the report to accompany
the Department of the Interior and Related Agencies Appropriations Act,
2001 (House Report 106-646). Any project carried out pursuant to this
section shall be consistent with the applicable land and resource
management plan, land use plan, or other applicable agency plan.
SEC. 15. MONITORING BY INDEPENDENT PANEL.
(a) Monitoring Requirements.--The Secretary of Agriculture and the
Secretary of the Interior shall jointly establish an independent panel
to conduct a general assessment, using accepted measures, indicators,
and sampling techniques, of the general success of hazardous fuels
reduction projects for which the processes established under this Act
are used in achieving the purpose of this Act. The panel shall
catalogue any adverse environmental effects or unforeseen ecological
consequences associated with the projects, if any occur.
(b) Membership.--The panels established under this section shall
consist in part of members nominated by the Chairmen and ranking
minority members of each of the congressional committees of
jurisdiction.
(c) Annual Assessment and Reporting.--The assessment required by
subsection (a) shall be performed on an annual basis, and the panel
shall submit to the Secretary concerned and the congressional
committees of jurisdiction an annual report containing the results of
the assessment.
(d) Secretarial Response.--The Secretary concerned shall respond to
the annual report of the panel, and that response shall be included in
the copy of the report submitted to the congressional committees of
jurisdiction.
SEC. 16. AUTHORIZATION OF APPROPRIATIONS.
(a) National Forest System Lands.--There are authorized to be
appropriated to the Secretary of Agriculture such sums as may be
necessary to carry out this Act and to plan and conduct hazardous fuels
reduction projects on National Forest System lands.
(b) BLM Lands.--There are authorized to be appropriated to the
Secretary of Interior such sums as may be necessary to carry out this
Act and to plan and conduct hazardous fuels reduction projects on
Federal lands described in section 4(5)(B).
Amend the title so as to read:
A bill to improve the capacity of the Secretary of Agriculture and
the Secretary of the Interior to plan and implement hazardous fuels
reduction projects on National Forest System lands and Bureau of Land
Management lands in the wildland-urban interface, in areas containing
municipal water supply systems, in areas containing threatened and
endangered species habitat, and in areas where windthrow or blowdown or
the existence or threat of large-scale disease or insect infestation
pose a significant threat to forest and rangeland health and an
attendant increase in the risk of catastrophic wildfire, and for other
purposes.
PURPOSE OF THE BILL
The purpose of H.R. 5319, as ordered reported, is to
improve the capacity of the Secretary of Agriculture and the
Secretary of the Interior to plan and implement hazardous fuels
reduction projects on National Forest System lands and Bureau
of Land Management lands in the wildland-urban interface, in
areas containing municipal water supply systems, in areas
containing threatened and endangered species habitat, and in
areas where windblow or blowdown or the existence or threat of
large-scale disease or insect infestation pose a significant
threat to forest and rangeland health and an attendant increase
in the risk of catastrophic wildfire, and for other purposes.
BACKGROUND AND NEED FOR LEGISLATION
Millions of acres of federal lands are at unnaturally high
risk to catastrophic wildfire because of the unhealthy build-up
of fire fuels. The impending specter of large-scale
catastrophic wildfire on these federal lands presents a clear
and present threat to the health and safety of scores of
communities, homes and ecosystems. Active forest and rangeland
management is the only way to lessen the growing risk of
catastrophic wildfire on the federal forests and rangelands.
The Committee agrees with assertions made by the Secretary
of Agriculture, the Secretary of the Interior, and other senior
federal land managers that the legal morass of laws,
regulations, administrative procedures, and court decisions
impose undesirably cumbersome process requirements that make
active forest and rangeland management a virtual impossibility
on any meaningful scale. The Committee finds that these
statutory and regulatory burdens should be reduced on certain
at risk landscapes in order to empower federal land managers to
address wildfire prone conditions on where these conditions
threaten communities, watersheds, and other areas.
Geographic scope
As ordered reported, H.R. 5319 establishes truncated
analysis and review procedures applicable to hazardous fuels
reduction projects on certain National Forest lands and lands
administered by the Bureau of Land Management. The expedited
authorities established under the bill are limited to use on
certain lands in the: (1) wildland/urban interface, which is
defined by density of homes and populations; (2) municipal
watersheds where municipal water supplies are present; (3)
habitat for threatened and endangered species where wildfire
risks are identified in the recovery plan of a threatened or
endangered species; and (4) lands where windthrow or blowdown
or the threat of large-scale disease or insect infestation pose
a threat to forest or rangeland health and an attendant
increase in the risk of catastrophic wildfire. The bill as
amended limits the number of acres treated in the threatened
and endangered species and forest health categories (categories
3 and 4) to two million acres a year combined. The legislation
additionally provides that, of the total funds expended under
the bill, not less than 70 percent must be expended to treat
the wildland/urban interface.
National Environmental Policy Act
Currently agencies are required under the National
Environmental Policy Act (NEPA) to consider three to five
alternatives to the proposed federal agency action, which takes
considerable time and resources. Some NEPA experts estimate
that each alternative developed and considered results in a 20
percent increase in the amount of analysis and documentation.
H.R. 5319 as ordered reported provides the agencies
discretionary authority to limit analysis during the NEPA phase
to the proposed action, meaning the agencies would not be
required to study, develop or analyze a range of alternatives.
The one exception is for projects implemented under the bill
that include the building of new permanent roads, in which case
the agency would be required to study, develop and analyze an
alternative that does not provide for the building of new
roads. While narrowing the number of alternatives considered,
the amendment increases public notice requirements and codifies
scoping requirements in effect on the date of enactment of the
bill.
Administrative appeals
The appeals process prescribed by H.R. 5319 as ordered
reported would be limited to 50 days, reduced from the current
process, which lasts 120 days, and sometimes more. The new
appeals process gives appellants 10 days to give notice of
their intent to appeal, 15 days to file an appeal, and the
Forest Service 25 days to decide on the merits of the appeal.
Additionally, only persons who submitted specific and detailed
comments during the preparation stage of the project are
eligible to file administrative appeals. Finally, the bill as
ordered reported gives appeals review officers the
discretionary authority to sign a new decision document at the
end of the appeals process, instead of requiring project and/or
analysis modifications made pursuant to an administrative
appeal to go through the time-consuming remand process.
Judicial review
Under the bill as ordered reported, judicial review can
only be sought in the federal district court with jurisdiction
over where the proposed action is located. The bill as ordered
reported directs that plaintiffs file causes of action within
30 days following the end of the appeals process. On the filing
of a challenge, the Secretary concerned is required to stay the
project until the completion of the District Court's review.
With this administratively imposed stay in place, motions for
temporary restraining orders and preliminary injunctions are
moot, and are therefore expressly prohibited.
Because of the exigent circumstances surrounding these
projects, Congress mandates that federal District Courts decide
on the underlying merits of an action brought in relation to a
project proposed under this bill within 60 days, though the
Court may extend that deadline under narrowly drawn and
expressly limited circumstances. These deadlines are binding,
and not merely advisory. The Committee finds that the projects
covered by the bill are of great importance and urgency and
that, as such, federal District Courts should move with maximum
dispatch, consistent with the deadlines in the bill as ordered
reported, in deciding on the merits of judicial actions brought
against these projects.
Annual General Accounting Office audit
The bill as ordered reported requires the Comptroller
General to conduct an audit of the implementation of the bill
to determine the success of the processes established under the
bill and the hazardous fuels reduction projects implemented in
achieving the purpose of the bill.
Stewardship and end result contracts
The Forest Service is given the authority to enter into 15
additional stewardship contract pilot projects. The Bureau of
Land Management is authorized to enter into 26 stewardship
contract pilot projects, with the restriction that those
projects cannot be implemented on Oregon and California lands.
These additional Stewardship Contract Pilot Projects are
confined to implementing projects authorized by this bill.
Duration, limitations and rules of construction
The authorities established under H.R. 5319 shall be
available through September 30, 2006. Projects noticed under
the procedures outlined in the legislation by this date shall
be completed under the processes established under this bill.
The Forest Service and Bureau of Land Management are
prohibited from using the expedited analysis procedures
established in this bill in wilderness areas, and lands where,
by Act of Congress or Presidential proclamation, the removal of
vegetation is prohibited or restricted. Nothing in the bill,
however, places any limits whatsoever on the authorities of
land mangers to implement hazardous fuels reduction projects
under other allowances and authorities.
Additionally, the bill provides that the Forest Service
will not be allowed to build new roads in Inventoried Roadless
Areas (IRAs) under the bill's expedited procedures, though the
Forest Service would be allowed to implement fuels reduction
projects in IRAs under the expedited provisions provided they
do not have a roadbuilding component. Moreover, the bill does
nothing to diminish the Forest Service's authority to build
roads in IRAs as needed in IRAs under existing procedures.
Finally, nothing in the bill as amended is intended to bias
or otherwise affect the following: (1) litigation involving the
Roadless Area Conservation Rule; or (2) the authority of the
Secretaries to implement hazardous fuels reduction projects
under other available authorities on any federal lands,
including those lands where the expedited procedures in this
bill are expressly allowed, in Section 5(a), or expressly
prohibited, in Section 5(e).
COMMITTEE ACTION
Congressman Scott McInnis (R-CO) introduced H.R. 5319 on
September 4, 2002. The bill was referred primarily to the
Committee on Resources and additionally to the Committee on
Agriculture. On September 5, 2002, the Resources Committee held
a hearing on the bill. On October 8, 2002, the Resources
Committee met to consider the bill.
Mr. McInnis offered an amendment in the nature of a
substitute which reflected negotiations among several Members
of the Committee and the Administration. Congressman Jay Inslee
(D-WA) offered a substitute amendment to the McInnis amendment
in the nature of a substitute. The Inslee amendment was not
agreed to by a roll call vote of 12 ayes to 25 noes, as
follows:
Congressman Tom Udall (D-NM) offered an amendment to the
McInnis amendment in the nature of a substitute which added a
new provision to section 9 entitled ``Relation to Criminal Case
Workload''. This amendment was not agreed to by a roll call
vote of 13 ayes to 24 noes, as follows:
Congressman Mark Udall (D-CO) offered an amendment to the
McInnis amendment in the nature of a substitute reducing the
number of acres subject to the hazardous fuels reduction
projects authorized by the bill and increasing the percentage
of funds which must be spent on projects in the wildland-urban
interface. This amendment was not agreed to by voice vote.
The McInnis amendment in the nature of a substitute was
then agreed to by a roll call vote of 23 ayes to 14 noes, as
follows:
COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Resources' oversight findings and recommendations
are reflected in the body of this report.
FEDERAL ADVISORY COMMITTEE STATEMENT
The functions of the proposed advisory committee authorized
in the bill are not currently being nor could they be performed
by one or more agencies, an advisory committee already in
existence or by enlarging the mandate of an existing advisory
committee.
CONSTITUTIONAL AUTHORITY STATEMENT
Article I, section 8 of the Constitution of the United
States grants Congress the authority to enact this bill.
COMPLIANCE WITH HOUSE RULE XIII
1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the
Rules of the House of Representatives requires an estimate and
a comparison by the Committee of the costs which would be
incurred in carrying out this bill. The bill authorizes ``such
sums'' to be appropriated to carry out this bill. The Committee
believes that enactment of this bill have no significant effect
on the federal budget.
2. Congressional Budget Act. As required by clause 3(c)(2)
of rule XIII of the Rules of the House of Representatives and
section 308(a) of the Congressional Budget Act of 1974, this
bill does not contain any new budget authority, spending
authority, credit authority, or an increase or decrease in
revenues or tax expenditures.
3. General Performance Goals and Objectives. As required by
clause 3(c)(4) of rule XIII, the general performance goal or
objective of this bill, as ordered reported, is to improve the
capacity of the Secretary of Agriculture and the Secretary of
the Interior to plan and implement hazardous fuels reduction
projects on National Forest System lands and Bureau of Land
Management lands in the wildland-urban interface, in areas
containing municipal water supply systems, in areas containing
threatened and endangered species habitat, and in areas where
windblow or blowdown or the existence or threat of large-scale
disease or insect infestation pose a significant threat to
forest and rangeland health and an attendant increase in the
risk of catastrophic wildfire, and for other purposes.
4. Congressional Budget Office Cost Estimate. Under clause
3(c)(3) of rule XIII of the Rules of the House of
Representatives and section 403 of the Congressional Budget Act
of 1974, the Committee has requested but not received a cost
estimate for this bill from the Director of the Congressional
Budget Office.
COMPLIANCE WITH PUBLIC LAW 104-4
This bill contains no unfunded mandates.
PREEMPTION OF STATE, LOCAL OR TRIBAL LAW
This bill is not intended to preempt any State, local or
tribal law.
CHANGES IN EXISTING LAW
If enacted, this bill would make no changes to existing
law.
ADDITIONAL VIEWS OF REPRESENTATIVE MARK UDALL
INTRODUCTION
Many western communities are at risk of catastrophic
wildfires. The cause is a combination of severe drought, the
overgrown conditions of many federal forest lands resulting
from a past fire-suppression policies, and the growing number
of settlements pressing against or into those forested areas. I
have consistently worked to reduce those risks.
This year's terrible fires in Colorado and other States
were a dramatic confirmation of those risks, but my concerns
began much earlier. Since my first election to Congress, I have
made it a point to visit parts of Colorado that have been
burned by catastrophic wildfires or that are at risk of similar
fires. I have walked areas that have been treated through
controlled fires and mechanical thinning and seen the dramatic
difference that such treatments can make in reducing wildfire
risks. I have been to the front lines of a burning wildfire--
the Big Elk Meadows fire near Estes Park--and I have talked
with homeowners, foresters, forest ecologists, forest users and
conservationists to get their perspectives and to try to
understand what strategies can reduce the risks to lives and
property.
What I have learned from these tours and conversations is
that we need to do more to reduce the risks to our communities,
our water supplies, and our citizens. That is why I have
introduced legislation (H.R. 5098 of the 106th Congress and
H.R. 3948 of the 107th Congress) to expedite the work of
removing excessive fire-prone materials and to require the
government to focus its efforts in the areas where this work
will have the most immediate benefit for the most people.
H.R. 5913 shares some of these purposes--but, as
introduced, it included many provisions that I considered not
only unnecessary but unwise and inappropriate. So, I think that
Chairman McInnis is to be commended for his willingness to work
on a bipartisan basis to try to develop revisions that would
reshape the bill toward one that would deserve and attract
broad support.
I think it would have been preferable for the Committee to
defer action on the legislation until that result was achieved.
However, that did not occur.
When the Committee considered the bill, I voted for the
Inslee substitute because while it had some serious flaws it
would have made many necessary improvements to H.R. 5319 as
originally introduced. After that substitute was rejected, I
voted for the alternative substitute proposed by
Representatives McInnis and Walden for the same reason. To
lessen any misunderstandings, I want to explain my reasoning.
ENVIRONMENTAL ANALYSIS AND PUBLIC INVOLVEMENT
I do not think our national environmental laws are the
obstacle to improving our response to the wildfire-related
risks to our communities. So, I see no real need to make any
fundamental changes in those laws. This is not to suggest that
our national environmental laws are beyond improvement, nor
that we cannot explore ways to reduce bureaucracy and lawsuits.
But I think we should be very cautious about proposals to
lessen public involvement in decisions about the management of
the federal lands.
Both the Inslee substitute and the bill as reported would
permit the Forest Service of Bureau of Land Management (BLM) to
implement a fuel-reduction project without the full
documentation normally required by section 102(2) of the
National Environmental Policy Act of 1969 (NEPA).
I do not think such provisions are necessary. However, if
the bill is to include any such provisions, I think those in
the Inslee substitute would have been preferable because under
that substitute the reduction in analysis would have applied in
fewer instances and only to a limited number of projects
involving a clearly-defined amount of merchantable wood
products or salvage timber.
I think those provisions of the Inslee substitute more
accurately reflected the reality that the real obstacles to
progress in reducing fire risks have not been the environmental
laws. Instead, the main obstacles have been inadequate focus on
the highest-priority areas and a failure by the relevant land-
managing agencies--under both the last Administration and this
one--to do enough to develop and narrowly-tailored thinning
projects that can enjoy broad support.
PRIORITY AREAS
I think the highest priority for fuel-reduction work needs
to be on the forest lands that present the most immediate risks
to our communities--those within the wildland/urban interface,
or the ``red zone,'' as it is called in Colorado--and to
municipal water supplies. These are the places where forest
conditions present the greatest risks to people's lives,
health, and property, and so they should be where our finite
resources--time, money, and people--are concentrated.
But to properly focus on these areas, we have to properly
identify them. And in that regard, I considered the McInnis-
Weldon substitute to be clearly preferable to the Inslee
substitute--because the Inslee substitute included a seriously
flawed definition of what would be considered ``interface''
areas.
The Inslee substitute defined the term ``wildland-urban
interface'' as referring only to ``an area within a half-mile
of a community,'' without specifying what was meant by the term
``community.'' I think such a definition is simultaneously too
broad and too narrow.
It is too broad because it would give the land-managing
agencies total discretion to decide what would qualify as a
``community''--regardless of whether a place so identified had
any residents at all. And it is too narrow because in many
instances an arbitrary half-mile limit would exclude lands
whose characteristics and proximity to actual communities
should make them priority areas for fuel-reduction work.
I think the ``interface'' definition in the McInnis-Walden
substitute is clearly preferable. By limiting the term to an
area including either an ``interface'' or ``intermix''
community--and by adopting existing definitions of those
terms--it provides an appropriate limitation on the discretion
of the agencies in this regard. And, on the other hand, by not
drawing an arbitrary mileage line, it appropriately reflects
the reality that such a community's exposure to the risk of
wildfire depends on terrain, forest conditions, and other
factors that can vary greatly from one place to another and
over time.
On the other hand, the McInnis-Walden substitute also
applies to certain federal lands unrelated to communities or
municipal water supplies, subject to the limit of 2 million
acres annually. I think fuel-reduction projects on these lands
should not have the same priority as the other lands covered by
the bill, which is why I sought to reduce that limit by half. I
regret the Committee did not adopt my amendment on this point,
and may renew my efforts at a later point in the legislative
process.
``ANALYSIS PARALYSIS,'' APPEALS, AND JUDICIAL REVIEW
As introduced, H.R. 5319 included (in section 2(a)(9)) a
finding stating in pertinent part that ``Federal land managers
need immediate relief from certain procedural requirements that
substantially burden land management professionals without
bringing any value to the decision-making process.''
That and all other findings were deleted by adoption of the
McInnis-Weldon substitute--a definite improvement. But, like
the original version, the bill as reported clearly is based on
a similar premise--that the land-managing agencies are laboring
under procedural burdens that unnecessarily delay work on fuel-
reduction projects.
I think that premise has not been proved beyond doubt.
The Chief of the Forest Service has told our Committee that
the agency has been slow to act to reduce the risks of
catastrophic wildfire because of ``analysis paralysis,''
meaning that the fear of appeals or litigation has made Forest
Service personnel excessively cautious in the way they
formulate and analyze fuel-reduction (and other) projects.
The chief may be correct in that diagnosis--certainly he is
in a better position than I am to evaluate the mental states of
his subordinates. But it is important to remember that the
Chief has also testified that he does not think revision of the
environmental laws is required in order to treat this
condition--and on that point I am in full agreement.
And if fear of appeals and litigation is the cause of
``analysis paralysis,'' how realistic is that fear? Over recent
months, there has been considerable debate over that point, in
our Committee and in the press. I think it is fair to say that
debate has been more heated than enlightening, and that the
question remains unresolved. I am not convinced that the case
has been fully made that the ability of people to seek
administrative or judicial review of Forest Service decisions
has had such adverse effects that stringent limitations on
those processes are essential.
As introduced, H.R. 5319 would have repealed the law that
currently provides for appeals of Forest Service decisions, and
would have instituted a new ``predecisional review process''
for certain agency actions. The bill as reported does not
include such provisions, and does provide for administrative
review of projects covered by the bill--another improvement
made by the McInnis-Walden substitute.
On the other hand, projects covered by the Inslee
substitute would have been exempt from any administrative
appeal process--meaning that the only option for someone
seeking to have it reconsidered would be litigation. I think it
likely that in at least some--and perhaps many--instances
problems could be resolved more quickly and with less expense
through administrative, rather than judicial, review.
I think with regard to administrative appeals the bill as
reported is a definite improvement over the original version,
and also preferable to the Inslee substitute.
However, the bill as reported includes provisions related
to judicial review that I think are imperfect at best, and
probably completely unnecessary. The only reason that I could
support their inclusion is that both these provisions and those
related to administrative review include an automatic stay of
agency action until the completion of the review process and
the rendering of a decision on the merits of each issue raised
by those seeking to change the outcome of an agency decision.
I think it would have been better if the bill did not
attempt to make any change in the procedures of the courts, for
reasons well stated in the dissenting views of Representative
Udall of New Mexico.
OTHER DIFFERENCES FROM ORIGINAL BILL
In my opinion, the bill as reported represents an
improvement over H.R. 5319 as introduced in many respects.
These include the fact that the reported bill applies only to
National Forest System lands and public lands managed by the
Bureau of Land Management. The original bill would have applied
to National Park System and National Wildlife Refuge System
lands, which I think is not necessary and would be
inappropriate.
I also think the fact that the bill as reported does not
apply to designated wilderness or to wilderness study areas is
a major improvement, as is the fact that National Monuments,
National Conservation Areas, and other areas where removal of
vegetation is prohibited or restricted. Those provisions of the
reported bill are especially important to me because they make
clear that the bill will not apply to the James Peak Protection
Area designated by a bill I introduced that was recently
enacted as Public Law 107-216.
On the other hand, the Inslee substitute would have more
fully and appropriately recognized the special qualities of
inventories roadless areas of the National Forests and the
importance of retaining existing procedures applicable to
activities in those areas. And it also would have provided
similar recognition for Native American cultural or religious
sites, which I think deserve more consideration than is
provided by the bill as reported.
OTHER SHORTCOMINGS OF REPORTED BILL
As noted above, I voted for McInnis-Weldon substitute--that
is, for the bill as reported--because it is far better than the
original bill. However, I am under no illusion that it is
perfect. It includes provisions that I think are imperfect,
unnecessary, or undesirable, and it omits some things that I
would have preferred be included.
I want to highlight some ways in which I think the bill
should be revised further.
To begin with, I would further narrow the scope of the bill
by excluding all the lands that would have been excluded by
section 3(c) of the Inslee substitute. I would also reduce--or,
better yet, eliminate--the amount of ``other-at-risk Federal
lands'' and the lands containing threatened and endangered
species habitat covered by paragraphs (3) and (4) of section
5(a) of the reported bill. While thinning projects likely
should be done on some of these lands, I do not think it is
appropriate to include them in this bill because I think the
only reason for considering any changes in current law
applicable to such projects is to respond to the threats to our
communities and municipal water supplies.
Similarly, I would further heighten the priority the
reported bill places on using funds provided for fuel-reduction
projects in the ``red zone'' areas. Toward that end, when the
Committee considered the bill I offered an amendment to require
that 85% of such funds be expended on interface projects. That
amendment was not adopted, but I think that such a change would
be an improvement and I may seek to revisit this issue later in
the legislative process.
I also think it would have been an improvement for the
Committee to have adopted the amendment proposed by
Representative Udall of New Mexico, in order to assure that the
bill's provisions on judicial review--if they are retained at
all--would not interfere with the timely handling of criminal
cases.
I also think the bill would be improved by the addition of
provisions related to community and private-land wildfire
assistance similar to those that were included in section 7 of
the Inslee substitute.
CONCLUSION
I do think it is appropriate for Congress to act to improve
the effectiveness of the way the Forest Service and Bureau of
Land Management are undertaking to reduce the risks of
catastrophic wildfires to the lives, health, and property of
people living in communities near federal forest lands.
However, I thought that H.R. 5319 as originally introduced
was not well designed to accomplish that goal. That is why I
have sought to improve it--and the bill as reported, while
still defective in important ways, is much better than the
original version.
I think the essential point of any legislation on this
subject is to require the agencies to focus on work in the
highest-priority areas. The reported bill does do that, to some
extent. It would give a priority--not high enough, but a
priority--to efforts to reduce the fire risks where they are
needed most. It also is more limited in scope than the bill as
introduced and relies to a greater extent on existing, time-
tested administrative and judicial procedures.
Further, and importantly, the reported bill's provisions
will terminate on September 30, 2005--a much shorter and more
appropriate duration for provisions that I think should not be
considered except as provisional and in the nature of an
experiment.
In short, I voted for the reported bill because I am
willing to consider legislation--although I am not convinced
such legislation is necessary--to revise the administrative
procedures applicable to Forest Service and BLM fuel-reduction
projects intended to reduce the risks to our communities from
catastrophic wildfires. I want to work with my colleagues on
the Committee and in the Congress to try to make further
improvements to H.R. 5319. But I will reserve final judgment
and will want to watch closely how events unfold before
deciding whether to support enactment of this or any similar
measure.
Mark Udall.
DISSENTING VIEWS OF REPRESENTATIVE TOM UDALL
Introduction
I, like other western members take very seriously the need
to find a balanced approach to reduce the threat of
catastrophic wildfires from occurring. Unfortunately, I could
not support H.R. 5319 as amended during our committee mark-up
because it fundamentally missed the mark of protecting our
communities and their water supplies. H.R. 5319, as modified in
our Committee, is far better than what was originally
introduced on September 4, 2002 by Mr. McInnis. I believe that
working together we can put together a bill that protects our
communities from catastrophic fires without the need for
expedited processes, without deadlines imposed on the federal
judiciary, and without emasculating our environmental laws.
I would like to commend Forests and Forest Health
Subcommittee Chairman McInnis, Mr. Walden, Mr. George Miller,
and Mr. DeFazio for attempting to bring to our committee a
bipartisan bill that reduces the threat of catastrophic
wildfires, which threaten the livelihood of our communities,
their water systems, and our pristine forests.
I participated in one of the several member level meetings
to help find a balanced, bipartisan approach to reduce the
threat of catastrophic wildfires. However, since members
pressed the need to bring a bill before the committee prior to
Congress's adjournment, I withdrew from the negotiations
because I felt we were moving in such an expedient manner that
any bill brought before the committee would reek of hurried
work and would not afford other members of the committee the
necessary time to review any final product.
The ongoing drought in the western United States has caused
communities to band together to reduce the threat of
catastrophic wildfire. These communities recognize that
something has to be done to accelerate fuel reduction
activities because the risk of severe fire is a harsh reality.
Back in New Mexico's 3rd Congressional District, I have
frequently met with ranchers, farmers, elected officials,
community activists, and environmentalists who all agree that
the Congress should spend more federal dollars to conduct
proactive forest restoration and fuel reduction projects within
the at-risk wildland/urban interface.
I voted for the alternative substitute offered by Mr.
Inslee because I believe its adoption would have made several
improvements to H.R. 5319, which I will discuss further in my
dissent. However, I respectfully disagree with the definition
of ``wildland/urban interface'' in the Inslee substitute and
would have preferred the definition found in H.R. 3948, which
was introduced by my close friend Representative Mark Udall,
and which I, along with Representative Joel Hefley joined as
original cosponsors.
H.R. 5319, the Healthy Forests and Wildfire Risk Reduction Act of 2002
The amendment in nature of a substitute to H.R. 5319, which
was offered by Mr. McInnis and Mr. Walden, falls for short of
our focus to reduce hazardous fuel in the wildland/urban
interface, around communities that fall within the interface,
and around key municipal water supplies. The amendment instead
creates an expedited administrative appeal process that in my
opinion, as a former federal prosecutor and Attorney General
for the State of New Mexico, would likely lead to more
litigation. This amendment would disqualify appeals filed by
people who did not previously comment on the specific issues
that they are raising in their appeals, and also those who did
not file a notice of intent to file an appeal with the agency.
Consequently, this would make it too easy for the Forest
Service to dismiss troublesome appeals on the procedural ground
that the appellants did not properly raise the issue in their
comments or file a timely notice. Also, while the amendment
authorizes the Forest Service to negotiate with appellants, it
does not provide adequate time extensions to conduct the
negotiations and reach an agreement before end of the appeals
period. I also have concerns over the amendments authorization
of 15 new Forest Service projects and an entirely new BLM
program of 26 projects within the stewardship-contracting
program. I believe that before Congress starts to expand
further pilot projects that we wait for the data concerning the
effectiveness of stewardship contract pilot projects approved
in 1999, since implementation of nearly all of those projects
is not yet complete.
What Is Wrong With Judicial Review?
The area of the bill that causes me particular concern
pertains to section 9 of H.R. 5319 that addresses judicial
review. This section in no way contributes to protecting our
communities through its necessitating unprecedented deadlines,
restrictions, and burdens on the federal judiciary for lawsuits
challenging expedited appeals of hazardous fuel reduction
projects. Furthermore, any subsequent judicial review of an
agency decision would be rushed and unfair to citizens, and
could wreak havoc on the federal courts in some regions.
Section 9 would require federal judges to hear expedited
fuel reduction project cases ``at the earliest possible date''
and then issue final decisions within 60 days after the
lawsuits are filed, with only a very limited allowance for time
extensions. Thus, under the law fuel reduction projects would
be assigned top priority in the federal court system virtually
above all other civil and criminal cases. Even if only a small
fraction of those projects are controversial enough to provoke
a challenge, some district courts--particulary in the western
states like New Mexico--could quickly be overwhelmed by having
to meet the bill's legal prioritization and inflexible
deadlines. This is why I hoped the amendment I offered during
committee would have been adopted to ensure that civil cases
filed pursuant to H.R. 5319 would not take precedence over
criminal cases.
In addition, the time limitations contained within Section
9 do not reflect the policies of the Judicial Conference of the
United States, the policy-making body for the federal
judiciary, for three primary reasons.\1\ First, the Conference
strongly opposes the statutory imposition of litigation
priority and expediting requirements except in those cases
warranting such review under 28 U.S.C. Sec. 1657. Secondly, the
Conference strongly opposes any attempt to impose statutory
time limits for the disposition of specific cases in all
branches of the federal courts. The Conference views Section
1657 as sufficiently recognizing the appropriateness of federal
courts generally determining case management priorities. Third,
the expansion of statutorily mandated priorities and expediting
requirements run counter to the principles of effective case
management. As the number of cases receiving priority treatment
increases, the ability of the court to expedite review of any
of these cases is restricted.
---------------------------------------------------------------------------
\1\ See General Policy Statement of the Judicial Conference of the
United States regarding expediting provisions for civil cases in the
federal courts.
---------------------------------------------------------------------------
Section 9's expedited judicial review provision is
unnecessary because the litigation of hazardous fuel reduction
projects in federal court is infrequent and practically non-
existent. An August 31, 2001, report by the General Accounting
Office (GAO) demonstrates that the need for expedited judicial
review does not exist. The GAO report found that of the 1671
hazardous fuels reduction projects identified for
implementation in FY 2001, only 20 (or approximately 1%) of
them were appealed.\2\ None of these projects were litigated in
federal court. Considering this, Section 9 is an exercise in
frivolity, imposing unrealistic and unnecessary deadlines on
the federal judiciary for lawsuits challenging final
administrative decisions regarding fuel reduction projects.
---------------------------------------------------------------------------
\2\ See Forest Service: Appeals and Litigation of Fuel Reduction
Projects. GAO-01-1114R August 31, 2001.
---------------------------------------------------------------------------
The absurdity of the potential outcome due to the
implementation of Section 9 is heightened by the fact that,
according to the GAO, none of the Forest Service's hazardous
fuel reduction projects were litigated during the first 9
months of FY 2001. Tragically, H.R. 5319 would almost certainly
cause many of these projects to be litigated, due to public
distrust and opposition caused by the loss of normal
environmental safeguards and public participation
opportunities.
In considering any national wildfire prevention and
protection legislation, we should not diminish judicial review,
but we should encourage and enhance public participation in the
decision-making process. Moreover, the Committee on Judiciary
has exclusive jurisdiction over matters relating to the federal
courts and judicial review. As such, I share the concerns of
the Ranking Member of the Judiciary Committee, Mr. Conyers,
that the provisions in H.R. 5319, as they pertain to judicial
review, ``raise serious questions regarding the efficiency and
efficacy of the federal courts that are best addressed by the
Judiciary Committee.'' \3\
---------------------------------------------------------------------------
\3\ See Letter from Representative John Conyers, Jr., Ranking
Member, House Judiciary Committee to Chairman James V. Hansen and
Ranking Member Nick J. Rahall, II, House Resources Committee, (October
8, 2002).
---------------------------------------------------------------------------
What Is Lacking in H.R. 5319?
What H.R. 5319 lacks is the emphasis on protecting
communities as well as providing the tools necessary to assist
them in those endeavors. I do not view H.R. 5319 as a Healthy
Forest initiative; rather I view H.R. 5319 as a failed
initiative to reduce the threat of catastrophic wildfires,
which threaten communities and their water systems.
There are a lot of communities throughout the country and
in my home state of New Mexico who are undertaking proactive
efforts to reduce the fire risk. Unfortunately, H.R. 5319
contained not one provision that could assist communities and
tribes with their work on fire reduction or restoration
projects. Restoration projects greatly contribute to reducing
the potential for a catastrophic fire to occur. I agree that
funding proactive forest restoration projects to reduce the
chances for fire is important rather than continuing to spend
billions of dollars each year fighting fires. Two amendments
that I had planned to offer would have strengthened H.R. 5319
in this regard. Both provisions were in the original text of
the Inslee Substitute, which I supported.
The first amendment would have allowed the Secretary of
Agriculture to make grants to States and Indian tribes for the
purpose of promoting optimal firefighting efficiency at the
Federal, State, Indian tribe, and local levels in the wildland/
urban interface. These grants would also allow these
communities to expand outreach and education programs to
homeowners and communities about fire prevention.
Working to prevent fires is not only a job undertaken by
the Federal Government but also a job that is being tackled by
local communities and tribes. There are several key programs
that are part of the National Fire Plan which include economic
action programs, community and private land fire assistance,
and burned area restoration and rehabilitation that have been
drastically cut by the Administration over the last two budget
cycles.
These funding constraints clearly affect the work that is
being done on the ground by communities and tribes. My
amendment would have provided needed assistance that tribes and
communities could currently use to protect their communities
from fire. Broad community involvement to prevent fires should
be encouraged at all levels; however, it is not encouraged
through the provisions of H.R. 5319.
My second amendment would have created a new section of
H.R. 5319 entitled Forest Restoration and Value-added Centers.
This amendment would allow the Forest Service to enter into
partnerships, and cooperative agreements with other Federal
agencies or other organizations, including local nonprofit
organizations, conservation groups, or community colleges in
creating and maintaining the Restoration and Value-added
Centers. The Forest Service regional offices through a
competitive ``request-for-proposal'' process would select the
Centers.
In addition, the Forest Service would provide financial
assistance equaling 75 percent of each Center's budget. After
the Center has operated for five years, the Secretary shall
assess the Center's performance and begin to reduce, by 25
percent annually, the level of funding.
I believe these Centers would provide needed technical
assistance to small communities and enterprises adjacent to
public lands. This will make the latest technology and
innovations available to rural communities and provide rural
entrepreneurs an opportunity to use and share their expertise
and knowledge of the land and wood products, and be part of
finding solutions to reducing fires as well as restoring our
forest.
Why do we need Forest Restoration and Value-added Centers?
We need them because the success of our efforts to restore fire
prone forests to their natural condition will depend on how
work is structured and byproducts are utilized. We need an
integrated approach that includes three components:
Building a high-skill, high-wage workforce
especially in rural areas which can respond to the
needs of the landscape;
Investing appropriately to get the work done
on the land.
And adding value to by-products that result
from restoration work
The establishment of Forest Restoration and Value-added
Centers, through my amendment, would ensure we are being
environmentally and socially responsible in how we go about the
restoration of our public lands and stimulating economic
development. These Centers would ensure that forest restoration
occurs in a collaborative fashion and assists rural communities
and enterprises in accessing the best information to develop
good jobs that will help restore the health of our forests.
Forest Restoration and Value-added Centers will help
federal land management agencies create effective partnerships
with communities and others by providing authority to enter
into cooperative agreements with nonprofit organizations and
others to implement restoration projects.
Conclusion
It is my hope that, should H.R. 5319 come before the House,
the areas I have covered in my dissent will be incorporated in
a manager's amendment to the underlying bill. We need
legislation to reduce the potential for catastrophic fires,
protect our communities, and provide assistance to Tribes and
states in the work they are currently undertaking to reduce the
risk of fires. We do not need a bill that increases the
potential for lawsuits, emasculates our environmental laws, and
fails to protect our communities and their citizens.
For those reasons stated above I respectfully dissent from
H.R. 5319 in its modified form.
Tom Udall.
------
Views of the Judicial Conference of the United States Pertaining to
Expedited Review
The Judicial Conference of the United States, the policy-
making body for the federal judiciary, strongly opposes the
statutory imposition of litigation priority, expediting
requirements, or time limitation rules in specified types of
civil cases brought in federal court beyond those civil actions
already identified in 28 U.S.C. Sec. 1657 as warranting
expedited review. The Judicial Conference also strongly opposes
any attempt to impose statutory time limits for the disposition
of specified cases in the district courts, the courts of
appeals, or the Supreme Court. (Report of the Proceedings of
the Judicial Conference of the United States, September 1990,
p. 80.) Section 1657 currently provides that United States
courts shall determine the order in which civil actions are
heard, except for the following types of actions that must be
given expedited consideration: cases brought under chapter 153
(habeas corpus petitions) of title 28 or under 28 U.S.C.
Sec. 1826 (recalcitrant witnesses); actions for temporary or
injunctive relief; and actions for which ``good cause'' is
shown. The Judicial Conference views 28 U.S.C. Sec. 1657 as
sufficiently recognizing both the appropriateness of federal
courts generally determining case management priorities and the
desire to expedite consideration of limited types of actions.
Expansion of statutorily mandated expedited review is
unwise for several reasons. Individual actions within a
category of cases inevitably have different needs of priority
treatment, which needs are best determined on a case-by-case
basis. Also, mandatory priorities and expediting requirements
run counter to principles of effective civil case management.
In addition, as the number of categories of cases receiving
priority treatment increases, the ability of a court to
expedite review of any of these cases is restricted.
------
House of Representatives,
Committee on the Judiciary,
Washington, DC, October 8, 2002.
Hon. James V. Hansen,
Chairman, Committee on Resources, House of Representatives, Longworth
House Office Building, Washington, DC.
Hon. Nick J. Rahall II,
Ranking Member, Committee on Resources, House of Representatives,
Longworth House Office Building, Washington, DC.
Dear Chairman Hansen and Ranking Member Rahall: I
understand that on October 8, the Committee on Resources
intends to mark up a version of H.R. 5319 that contains a
section that places significant limitations on the federal
courts' ability to review a Hazardous Fuels Reduction Project
(``HFRP''). Among other things, the October 3 version of the
bill: (1) limits the venue for challenging a HFRP, (2) limits
the time period for filing a court challenge to a HFRP, (3)
requires the federal district courts to expedite consideration
of these actions, (4) sets a 60-day timetable for a federal
district court to render a decision in a challenge to a HFRP,
(5) limits extensions of the 60-day deadline for a federal
district court to render a decision in a challenge to a HFRP,
and (6) sets a 60-day timetable for a federal court of appeals
to render a decision in any appeal from a district court
decision regarding a HFRP.
The Committee on the Judiciary has exclusive jurisdiction
over matters relating to the federal courts and judicial
review. I believe that the judicial review provisions in H.R.
5319 raise serious questions regarding the efficiency and
efficacy of the federal courts that are best addressed by the
Judiciary Committee.
I request that the Resources Committee drop the judicial
review provisions from H.R. 5319. In the alternative, I will
encourage the Judiciary Committee to exercise its jurisdiction
and mark up the sections of H.R. 5319 over which the Committee
has jurisdiction.
Sincerely,
John Conyers, Jr.,
Ranking Member, House Judiciary Committee.
DISSENTING VIEWS
Years of fire suppression and forest mismanagement have
created build-up of forest fuels that in turn fuels unnaturally
large and intense fires. H.R. 5319 as reported attempts to
address the perceived need to expedite fuels treatment to
reduce the risk of catastrophic fire in order to protect
communities and homes. While its goals are meritorious, its
approach is misguided and flawed.
H.R. 5319 undermines the National Environmental Policy Act
(NEPA) by eliminating the requirement that alternatives to the
proposed action be considered. The premise of NEPA is that
examining reasonable alternatives allows for mitigation of ill-
effects and improves decision making. CEQ has called the
analysis of all alternatives ``the heart of the NEPA process.''
Under the bill, the agency would not even be required to
consider a ``no action'' alternative. Thus, the bill reduces
public participation opportunities and diminishes environmental
safeguards.
Expedited procedures combined with a broad scope serve to
threaten forest health. The scope of H.R. 5319 is so vast and
definitions so vague as to allow the Secretaries virtually
unfettered discretion to conduct projects on large swaths of
national forest and BLM land. Broadly defined hazardous fuels
treatment projects under expedited procedures can take place in
the wildland-urban interface, in watersheds, in certain
critical habitat, and on ``at-risk lands.'' Within these
categories, only some of the treatments are limited to those
lands at greatest risk of catastrophic fire. The definition of
interface lacks a distance demarcation. thereby making the
geographic scope of the bill extremely broad. The definition of
water supply systems has the same effect. The inclusion of
threatened and endanger species habitat and ``other at-risk''
lands also creates significant loopholes for lands far from
communities on which projects with expedited NEPA analysis can
occur. Under the terms of the bill, up to six million acres
over three years could be treated outside of municipal
watershed interface areas, and an unlimited amount of acres
could be treated in the ill-defined interface and watershed
areas.
H.R. 5319 fails to adequately protect old-growth and
sensitive areas, such as roadless areas, by allowing projects
to proceed with truncated environmental analysis. Accordingly,
under the bill, large-scale logging in roadless areas may occur
under an expedited process. The Forest Service has previously
concluded that logging of roadless areas is one factor that can
disqualify an area from wilderness designation for up to a
century. The bill reverses the presumptions that roadless areas
should be afforded a high degree of protection and that logging
should be allowed in roadless areas only under very rare
circumstances. By allowing road construction--an
environmentally damaging activity--in projects using expedited
procedures, the bill further fails to protect resources or
instill public trust.
H.R. 5319 not only changes how NEPA works on much of the
federal landscape, it also repeals the Appeals Reform Act,
which codified the Forest Service's administrative appeals
process in 1992. In its place, it establishes a truncated
procedure that gives interested citizens less time to prepare
an appeal and forecloses opportunities to challenge government
actions. Limitations on citizen access to the courts are so
strict on issues that can be raised in an appeal and subsequent
suit, i.e., the appellant must have submitted ``detailed and
specific comments'' on an issue related to the project, that it
effectively changes standing and exhaustion requirements.
Currently, an appellant can raise any issue on appeal that was
raised by any party during the comment period. The appeals
provisions of H.R. 5319 have the effect of greatly diminishing
opportunities for public comment on environmental assessments
as well as denying citizens the right to challenge
implementation of treatment projects in court as the issue
raised during implementation could not have been foreseen
during the comment period.
Similarly, H.R. 5319's judicial review provisions change
Federal Rules by limiting venue, reducing time in which to
bring suit (from 6 years to 15 days), and imposing tight
deadlines on courts in which to act. The effect is to severely
curtail access to the courts and to place thinning cases above
all others in terms of judicial priorities. The time frames are
such under appeals and suits provisions that citizens may be
forced to sue to preserve their limited right to hold the
agency accountable, and may be foreclosed from bringing
Endangered Species Act, Clean Air Act, or other claims
requiring 60 days notice. At the same time, an automatic stay
provision regardless of the merits of the case will encourage
suits and contribute to gridlock. These draconian changes to
how the agencies and courts allow for public input and
challenge is in the face of questionable evidence of any
problem with litigation of hazardous fuels reduction projects;
according to an August 31, 2001 General Accounting Office
report, approximately 1 percent of the nearly 1,700 hazardous
fuels reduction projects were appealed and none were litigated
in the first nine months of FY2001.
Finally, H.R. 5319 expands the controversial stewardship
contracting program by authorizing 15 new Forest Service
projects and an entirely new BLM program of 26 projects. This
program would give both agencies authority to pay for thinning
with large diameter trees with no environmental sideboards,
when logging has in large part contributed to the fuels build-
up problem. Furthermore, the bill ties the pilots not only to
hazardous fuels projects alone but to those done with
streamlined NEPA processes pursuant to the bill. Thus, these
provisions would give the Forest Service, an agency notorious
for its lack of fiscal and environmental accountability, even
more license to abuse assets free of public scrutiny.
In sharp contrast to H.R. 5319, the Inslee substitute
leaves NEPA intact and focuses thinning and prescribed burns in
high-risk areas near communities. The proposal uses an already
existing NEPA authority (categorical exclusions (CEs)) that
exempts non-controversial projects from full NEPA analysis and
administrative appeals. Projects covered by the CE provisions
can take place only in the interface areas and watershed areas,
are limited to 2.5 million areas a year, and may remove a
limited amount of timber. Furthermore, the Inslee substitute
focuses 85% of the funds for all hazardous fuels projects in
the interface and key municipal watersheds. The provision
applies to all expenditures for hazardous fuels projects, not
the limited subset of funding for projects covered by expedited
procedures, as is the case in H.R. 5319. H.R. 5319 limits only
70% of funds expended on projects covered by the bill to the
interface and watershed--leaving 30% of funding for projects
covered by the bill and 100% of other funding to be spent on
controversial projects in the back country. Under the terms of
the Inslee substitute, expedited projects may not take place in
sensitive areas such as roadless areas and road-building is
prohibited. The Inslee substitute includes small diameter trees
as the focus of projects, and water quality as the goal of
watershed projects. These provisions, along with narrow
definitions, serve to focus the expedited thinning activity in
areas where consensus exists.
While the Inslee substitute's CE provision forecloses
appeals on all projects covered by the bill (including timber
sales), it means existing appeals procedures, citizens' rights
to challenge government actions in court, and judicial
discretion to set priorities. The substitute also removes
perverse incentives to log by directing all receipts to the
Treasury. Finally, the substitute includes a provision for
block grants for tribes and states, as the majority of at-risk
lands are on non-federal lands.
In short, H.R. 5319 fails to focus fuel reduction projects
in non-controversial areas to protect homes and communities;
undercuts NEPA, our fundamental environmental law; fails to
provide assistance to states or tribes; creates significant
roadblocks to citizen participation in government decision
making on federal land management; curtails the right to sue,
while at the same time creating a judicial train wreck; and
expands a pilot program that could give the agencies carte
blanche to log. Rather than getting the much-needed work of
protecting communities and restoring landscapes done, H.R. 5319
has the potential to deepen public mistrust of land management
agencies, to generate further polarization, to degrade our
forests, and to create chaos in the courts.
Jay Inslee.
Betty McCollum.
------
House of Representatives,
Committee on Resources,
Washington, DC, October 11, 2002.
Hon. F. James Sensenbrenner, Jr.,
Chairman, Committee on the Judiciary, Rayburn House Office Building,
Washington, DC.
Dear Mr. Chairman: On October 8, 2002, the Committee on
Resources ordered reported H.R. 5319, the Healthy Forests
Reform Act of 2002. The bill was referred to the Committee on
Resources and additionally to the Committee on Agriculture.
Earlier this week, my Chief Counsel forwarded a copy of the
reported text to your staff for your review. You will note that
section 104 of this bill affects judicial review of certain
decisions made under the authorities granted to the Secretaries
of Agriculture and the Interior under this bill. I believe this
provision is in the purview of the Committee on the Judiciary.
Given the importance of moving this legislation before we
adjourn and the dwindling number of days remaining in the 107th
Congress, I ask that you not seek a sequential referral of H.R.
5319.
By foregoing a sequential referral of H.R. 5319, the
Committee on the Judiciary would not be waiving its
jurisdiction over section 104, nor would this action serve as
precedent for other similar measures. In addition, if a
conference committee is convened on the bill, I would support
your request to have the Committee on the Judiciary represented
on the conference for those matters in your jurisdiction.
Finally, I would be pleased to include in the Committee on
Resources bill report on H.R. 5319 our exchange of letters
regarding this bill. I plan to file the report on Tuesday,
October 15.
Thank you for your cooperation and that of Robert Tracci of
your staff. It has been a pleasure to work with both of you
during my tenure as Chairman of the Committee on Resources.
Sincerely,
James V. Hansen,
Chairman.
------
House of Representatives,
Committee on the Judiciary,
Washington, DC, October 15, 2002.
Hon. J. Dennis Hastert,
Speaker, House of Representatives,
Washington, DC.
Dear Mr. Speaker: In recognition of the desire to expedite
floor consideration of H.R. 5319, the ``Healthy Forests Reform
Act of 2002,'' the Committee on the Judiciary hereby consents
to waive further consideration of the bill. H.R. 5319, as
introduced and reported by the Committee on Resources, contains
subject matter that falls within the legislative jurisdiction
of the Committee.
The Committee on the Judiciary takes this action with the
understanding that the Committee's jurisdiction over the
provisions in H.R. 5319 within the Committee's jurisdiction is
in no way diminished or altered, and that the Committee's right
to the appointment of conferees during any conference on the
bill is preserved.
Sincerely,
F. James Sensenbrenner, Jr.,
Chairman.