[Senate Hearing 109-518]
[From the U.S. Government Publishing Office]
S. Hrg. 109-518
PROMOTE WILDLAND FIREFIGHTER SAFETY; WATERSHED RESTORATION AND
ENHANCEMENT AGREEMENTS; GATEWAY COMMUNITIES AND FEDERAL LAND MANAGEMENT
PLANNING; AND LAND EXCHANGES IN THE TAHOE NATIONAL FOREST
=======================================================================
HEARING
before the
SUBCOMMITTEE ON PUBLIC LANDS AND FORESTS
of the
COMMITTEE ON
ENERGY AND NATURAL RESOURCES
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
ON
S. 906 S. 2003
H.R. 585 H.R. 3981
__________
MAY 10, 2006
Printed for the use of the
Committee on Energy and Natural Resources
_____
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29-430 PDF WASHINGTON : 2006
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COMMITTEE ON ENERGY AND NATURAL RESOURCES
PETE V. DOMENICI, New Mexico, Chairman
LARRY E. CRAIG, Idaho JEFF BINGAMAN, New Mexico
CRAIG THOMAS, Wyoming DANIEL K. AKAKA, Hawaii
LAMAR ALEXANDER, Tennessee BYRON L. DORGAN, North Dakota
LISA MURKOWSKI, Alaska RON WYDEN, Oregon
RICHARD M. BURR, North Carolina, TIM JOHNSON, South Dakota
MEL MARTINEZ, Florida MARY L. LANDRIEU, Louisiana
JAMES M. TALENT, Missouri DIANNE FEINSTEIN, California
CONRAD BURNS, Montana MARIA CANTWELL, Washington
GEORGE ALLEN, Virginia KEN SALAZAR, Colorado
GORDON SMITH, Oregon ROBERT MENENDEZ, New Jersey
JIM BUNNING, Kentucky
Bruce M. Evans, Staff Director
Judith K. Pensabene, Chief Counsel
Robert M. Simon, Democratic Staff Director
Sam E. Fowler, Democratic Chief Counsel
------
Subcommittee on Public Lands and Forests
LARRY E. CRAIG, Idaho, Chairman
CONRAD R. BURNS, Montana, Vice Chairman
CRAIG THOMAS, Wyoming RON WYDEN, Oregon
JAMES M. TALENT, Missouri DANIEL K. AKAKA, Hawaii
GORDON SMITH, Oregon BYRON L. DORGAN, North Dakota
LAMAR ALEXANDER, Tennessee TIM JOHNSON, South Dakota
LISA MURKOWSKI, Alaska MARY L. LANDRIEU, Louisiana
GEORGE ALLEN, Virginia DIANNE FEINSTEIN, California
MARIA CANTWELL, Washington
Pete V. Domenici and Jeff Bingaman are Ex Officio Members of the
Subcommittee
Frank Gladics, Professional Staff Member
Scott Miller, Democratic Counsel
C O N T E N T S
----------
STATEMENTS
Page
Craig, Hon. Larry E., U.S. Senator From Idaho.................... 1
Duerr, Steve, Former Executive Director, Jackson Hole Chamber of
Commerce, Jackson, WY.......................................... 24
Holtrop, Joel, Deputy Chief for National Forest System, Forest
Service, Department of Agriculture............................. 6
Kearney, Chris, Deputy Assistant Secretary for Policy, Management
and Budget, Department of the Interior......................... 12
Radanovich, Hon. George, U.S. Representative From California..... 3
Warren, Bob, Chairman, National Alliance of Gateway Communities,
Redding, CA.................................................... 29
Wyden, Hon. Ron, U.S. Senator From Oregon........................ 2
APPENDIX
Responses to additional questions................................ 41
PROMOTE WILDLAND FIREFIGHTER SAFETY; WATERSHED RESTORATION AND
ENHANCEMENT AGREEMENTS; GATEWAY COMMUNITIES AND FEDERAL LAND MANAGEMENT
PLANNING; AND LAND EXCHANGES IN THE TAHOE NATIONAL FOREST
----------
WEDNESDAY, MAY 10, 2006
U.S. Senate,
Subcommittee on Public Lands and Forests,
Committee on Energy and Natural Resources,
Washington, DC.
The subcommittee met, pursuant to notice, at 2:30 p.m., in
room SD-366, Dirksen Senate Office Building, Hon. Larry E.
Craig presiding.
OPENING STATEMENT OF HON. LARRY E. CRAIG,
U.S. SENATOR FROM IDAHO
Senator Craig. Good afternoon, ladies and gentlemen. The
Subcommittee on Public Lands and Forests of the Committee on
Energy and Natural Resources will be convened.
Let me welcome all of our witnesses from the Department of
Agriculture and the Department of the Interior and our public
witness to H.R. 585, Steve Duerr, executive director of the
Jackson Hole Chamber of Commerce, along with Bob Warren,
chairman of the National Alliance of Gateway Communities, from
Redding, California. And I understand he has a support
testifier today, in the form of a Congressman.
George? George Radanovich, welcome to the committee. We
appreciate you being with us today. George is here to speak in
relation to H.R. 585. That's the gateway community legislation.
Of course, let the record show that Congressman Radanovich
represents the 19th District of California.
We will also take testimony on S. 906, Senator Cantwell's
bill to promote wildland firefighter safety; along with S.
2003, to make permanent the authorization of watershed
restoration and enhancement agreements; H.R. 585, to require
the Federal land managers to support, communicate, coordinate,
and cooperate with designated gateway communities--I've already
mentioned that one--along with H.R. 3981, to authorize the
Secretary of Agriculture to carry out certain land exchanges
involving small parcels of National Forest System lands in the
Tahoe National Forest in the State of California, and for other
purposes.
I will reserve my comments on most of these bills, but I
would like to make this one comment on H.R. 585. I understand
that some who are opposed to H.R. 585 believe the national
parks were not set up to provide economic benefits to local
communities, nor were parks intended to be these communities'
exclusive playgrounds. But this bill is not just about national
park gateway communities, it also addresses communities next to
our national forests. I hope that we will work through the
bill. All will remember what President Teddy Roosevelt told the
Society of American Foresters, in 1903 at a meeting regarding
the effort to form the Forest Service--he said, ``And now,
first and foremost, you can never afford to forget for a moment
what is the object of our forest policy, for that object is not
to preserve the forests because they are beautiful, even though
that is good, in itself, nor is it because they are refuge for
the wild creatures of wilderness, though that, too, is good, in
itself, but the primary objective of our forest policy, as the
land policy of the U.S. Government, is the making of prosperous
homes.'' That was the driving force behind the President, who
created the forest preserves of our country. So, we are
extremely pleased to have that bill before us.
I've been joined by some of my colleagues. And before I
turn to Senator Wyden, the ranking member of this committee, to
make opening comments, along with my colleague from Wyoming,
I'd like to recognize Senator Wyden's long-time natural
resource counsel, Sarah Bittleman, who is leaving that office
to begin to work for the Governor of the State of Oregon. I
have reason to question her sanity.
[Laughter.]
Senator Craig. Sarah, I know you have worked extremely hard
for your Senator, and I appreciate the legislative progress
that we have made together as I've worked with Senator Wyden
and you over these last 8 years. The State of Oregon and
Senator Wyden have been well represented by you and your work,
and I know many of the committee join me in wishing you the
best of future endeavors. Now, Sarah has been with us only 8
years, so she doesn't get a pin or a gold watch, but if Ron
will throw a big party for her, I'll be happy to come.
[Laughter.]
Senator Craig. With that, let me turn to Senator Wyden for
any opening comments he would like to make.
STATEMENT OF HON. RON WYDEN, U.S. SENATOR
FROM OREGON
Senator Wyden. Well, Mr. Chairman, thank you very much, not
just for your typical courtesies as we move forward with some
important bills, but particularly for singling out Sarah
Bittleman.
She has been, in my view, the Bionic Woman. She has managed
to be just about everywhere on natural resources issues, always
working in a thoughtful and diplomatic way. And I would also
note that Callie is here, and I think, between Sarah and
Callie, we have had an especially professional duo. And it is
one--we always say we really don't let anyone leave. Sarah is
going to work for the Governor, but she is permanently going to
have assignments, I think, with us, as well, as we consult with
her late at night and try to once again see if we can make
magic on issues like county payments.
I think it's worth noting that between Sarah and Callie and
Frank, especially, the staff folks that have handled it, we
have, on Sarah's watch, been able to pass the only two pieces
of major forestry legislation that have cleared the U.S. Senate
in 15 years. Our good friend Senator Thomas is here. We have
all watched, unfortunately, the kind of polarization and
problems we've seen on natural resources, and Sarah, with
Callie and Frank, have managed to cut through that and see two
important pieces of legislation become law.
So, in the special bipartisan salute to Sarah Bittleman
that was launched by the chairman, I want to offer my
resounding thanks, as well. There will, in fact, be a Sarah
party, and it will not include any 4-hour-and-40-minute
speeches by me, as I was compelled to make on the oil royalty
issues.
[Laughter.]
Senator Wyden. I see that has brought great applause from
Senator Thomas. But I can't think of a better way than to honor
Sarah in a bipartisan way with the group that has worked so
closely together over all these years. And I thank you
especially for singling out Sarah, because when people talk
about what's gone on in the last 15 years in natural resources,
I think Sarah's name is going to be a key part of that history,
and we're very, very appreciative of all of her contributions.
Thank you for launching this special tribute, Mr. Chairman.
[Applause.]
Senator Craig. Ron, thank you very much.
Let me turn to my colleague, Senator Craig Thomas of
Wyoming, for any opening comments he would like to make.
Senator Thomas. Thank you, Mr. Chairman. I didn't realize
this hearing was going to be about Sarah, so I'm not prepared.
I don't have any comments, particularly. I did want to
welcome Steve Duerr, from Jackson Hole, Wyoming. I'm glad he's
here today to testify on one of the bills.
Thank you very much.
Senator Craig. Well, thank you.
And now, with that, let us turn to Congressman Radanovich
in relation to the legislation that he has sponsored through
the House, H.R. 585.
George, welcome before the committee.
STATEMENT OF HON. GEORGE RADANOVICH,
U.S. REPRESENTATIVE FROM CALIFORNIA
Mr. Radanovich. Thank you, Senator. It's a pleasure to be
here today.
And, Sarah, may I wish you the best in Oregon, as well.
I'm going to make sure that my comments go in, too.
Thanks for the opportunity to come here and talk about the
Gateway Communities Cooperation Act. It's H.R. 585. This bill
was approved by the House on the suspension calendar last
December, and it was also approved in the House in the 108th
Congress.
If I can go back and describe my situation in my neck of
the woods in California, I was born and raised in Mariposa,
which is right next to Yosemite National Park. It's a gateway
community. And over the years, the county has had a checkered
relationship with Yosemite. They cooperate, and the county
provides very valuable services, like solid waste for the
entire part of Yosemite National Park. There also have been
times when we've had superintendents that, when they got this
idea that there were too many cars in the park, the gate would
shut down in the middle of the day and cause all kinds of
havoc. And many times we've had superintendents--and I think
that all of you who adjoin Federal lands, either forest lands
or parks lands, know this--where they can pretend that the
boundaries don't extend beyond the park, and give no
consideration to things outside the park. Not only does this
not benefit what we call the satellite communities, those small
communities adjoining the park, but they do themselves, I
think, a disservice, because in many--just by the proximity of
some of these small towns and counties, they provide services
to the Park Service and can be an asset for the development of
the regional plans that the parks and Federal lands are
required to do--for example, transportation, housing, many ways
that satellite communities can be an asset.
So, what this legislation does is that it requires Federal
agencies, when they begin their planning processes, to invite
the local authorities, the local counties to participate in
that planning process. They can choose not to, because it would
cost them some money and effort, I think, to do that. But they
are at least given the choice to begin providing information up
front when Federal agencies like the Forest Service or the Park
Service do begin to develop their national plans.
It's something that I think makes sense. And I would like
to say that those people that might object to this, that it's--
not only does it--it would help provide, I think, an economic--
an ongoing, dependable economic asset to satellite communities,
but also realize that satellite communities contribute a lot to
the success and the planning, and can even do more to most of
the Federal lands--BLM, Forest Service, and Park Service lands.
So, I would deeply appreciate the subcommittee's
consideration of this bill. I would like to make myself
available to answer any questions that might arise from that. I
think we've got most of them hammered out, at least to be on a
suspension on the House side, and would enjoy the same type of
treatment on the Senate.
Senator Craig, thank you so much for bringing up this bill
and allowing me to speak before you today.
[The prepared statement of Mr. Radanovich follows:]
Prepared Statement of Hon. George Radanovich,
U.S. Representative From California
Thank you, Mr. Chairman----
I greatly appreciate this opportunity to testify before you today
on H.R. 585. Your consideration of this measure is important to
thousands of people who live in gateway communities throughout our
nation.
I like to call H.R. 585 the ``good neighbor act,'' even though its
real name is the ``Gateway Communities Cooperation Act.'' The purpose
of the bill is to make certain that small communities, located just
outside of federal properties, have input in the federal planning
process.
This measure is critical to many of my constituents and important
for numerous small communities throughout the country that are impacted
by federal land planning decisions.
As someone who represents several small towns located just outside
of Yosemite National Park and near the Stanislaus and Sierra National
Forests, I know that--too often--these communities are left out of the
federal planning process.
This bill ensures that communities serving as gateways to our
nation's federal lands, including Park Service and Forest Service
properties, have a voice in the federal planning process.
Gateway communities can greatly benefit or be severely harmed by
the decisions of federal land managers, so it is critical that their
views are heard before land managers make final decisions. This is why
H.R. 585 encourages a more open discussion between federal agencies and
local communities during the federal planning process.
For these reasons, Mr. Chairman, I encourage this Subcommittee to
support H.R. 585, and move it favorably through the Committee process.
Senator Craig. George, thank you very much. I think it's a
thoughtful and appropriate piece of legislation.
Are there any questions of the Congressman?
Senator Wyden. Mr. Chairman, I want to commend the
Congressman, as well. I think it's an excellent bill, and
particularly for those of us in the West who see so often this
situation with the Federal land managers. So often one hand
doesn't know what the other hand is doing, and what you're
talking about strikes me as very sensible. I commend you for
it, and I'm going to do everything I can to help the
legislation move.
Mr. Chairman, because we've got an intelligence meeting, I
think, with your consent, let me also just say a word or two
about S. 2003. You and I have worked on this for a number of
years, going back to our days working with Senator Gorton on
this, to try to promote watershed enhancement. It seems to me
we still have strong bipartisan support for our efforts. This
may be caught up in a larger bill that is coming--or is now
before the Senate Agriculture Committee, and I think we should
do everything we can not to see this caught up in a larger
bill, and end up held up. And, if possible, I'd like us to
continue to retain our bipartisan jurisdiction on it, and pass
S. 2003 as soon as possible. I think we'll hear from the Forest
Service about some minor kinds of changes. And if Frank and
Sarah can finish that today, we'll get another bill done on
Sarah's watch.
Thank you.
Senator Craig. Thank you.
Senator Thomas, any questions of the Congressman?
Senator Thomas. Well, just in general, I guess,
Congressman. I understand the importance of gateway communities
and, of course, we have a number of those. On the other hand,
we are supposed to have that relationship now, and I'm always
concerned that additional laws like this might just cause more
delay and more costs and so on. Are there additional
requirements here? What would this require that shouldn't be
happening now?
Mr. Radanovich. Well, nothing more than what should be
happening now. I guess in my history of--long history of going
through a lot of superintendents in Yosemite--and I think this
can be demonstrated in any other park--you just don't know what
you're going to get with a superintendent or an administration
change. And while the relationship, I think, between the
county, Mariposa County, and the current park superintendent is
excellent, it comes and goes. And what this does is just
requires those Federal agencies to invite the local agencies to
participate in the planning process from the beginning. They
don't have to if they don't want to, but it requires them to
make the ask. That's simply it.
Senator Thomas. Well, I understand. I understand what
you're saying. I just am a little concerned that some of the
decisions we have to make now take a long time, and the more
requirements that are there, the longer it takes to do these
things. And a lot of people have involvement in these
decisions, not just the gateways. So, I just raise the question
of whether they'd require any special treatment, as opposed to
everyone else.
Mr. Radanovich. No. No, actually, no more treatment than
anybody else. It's just that they're required to make them ask.
That's all.
Senator Thomas. Thank you.
Senator Craig. Well, George, again, thank you very much for
being with us today. We appreciate your time.
Mr. Radanovich. Great.
Senator Craig. And you can stay for the balance of the
testimony, if you wish, by others. I suspect your schedule is
as busy as ours.
Mr. Radanovich. We've got an energy mark-up over in
Commerce, so I'm going to head on over there. But, Larry, I
appreciate the opportunity to come over and testify on this.
Senator Craig. Well, go create some energy. We need it.
Mr. Radanovich. Yes, sir.
Senator Craig. Thank you.
Mr. Radanovich. Take care.
Senator Craig. We'll invite our first panel forward: Joel
Holtrop, deputy chief, National Forest Systems, Department of
Agriculture; and Chris Kearney, Deputy Assistant Secretary for
Policy, Management and Budget, Department of Interior. Joel,
we'll start with you. Please proceed.
STATEMENT OF JOEL HOLTROP, DEPUTY CHIEF FOR THE NATIONAL FOREST
SYSTEM, FOREST SERVICE, DEPARTMENT OF AGRICULTURE
Mr. Holtrop. Mr. Chairman and members of the subcommittee,
thank you for the opportunity to appear before you today to
provide the Department's views on four bills.
I submit my full testimony for the record and will provide
you with this brief oral statement.
S. 906, the Wildland Firefighter Safety Act--since the
Department of Interior and the Department of Agriculture work
closely together in fire management, we are providing a joint
statement on this bill. S. 906 requires the Secretaries to
track funds expended for firefighter safety and training
programs, along with additional related provisions. The
Departments are concerned that a budget line item may not
achieve the desired oversight of safety efforts and would carry
unnecessary administrative complexities. The Departments do not
consider training costs an effective means of determining a
firefighter's ability to perform safely. Required training,
recurrent training, required experience, and job performance
cross multiple budget activities and are extremely difficult to
track at the budget line-item level. Federal and State agencies
provide funding for national and advanced training academies,
as well as training at more local levels. Virtually every
firefighting training course includes some element of fire
safety.
For these reasons, the Departments do not support S. 906 in
its present form. Rather than focus on budget structure, the
Departments suggest an annual report, which would focus on
measurable firefighter performance and efficiency of our safety
and training practices and activities, would better assist the
Departments' continual improvement of safety and performance,
and would provide information to Congress in its oversight
capacity.
Indeed, actions are already underway to report to Congress.
For fiscal year 2007, the Forest Service will report to
Congress, as part of the national performance measures, the
accident frequency rate for firefighter injuries during the
suppression of fires under Forest Service jurisdiction.
We are taking additional action to improve tracking of
firefighter safety and training measures, including requiring
all firefighters to meet minimum interagency requirements for
training, experience, and physical fitness to perform a
specific job; implementation of a computer system which
documents training, on-the-job experience and certification for
each Federal firefighter; establishing a process to ensure that
training by firefighting contract associations meet Federal
standards; implementing new contract provisions for
standardized language assessment to ensure that there are no
communication barriers that would contribute to unsafe
conditions; and use of the Interagency Wildland Fire Leadership
Development Program, which trains firefighters and managers in
leadership values through courses designed to span careers from
entry level through management and leadership levels.
We believe that examining firefighter performance and
safety as a whole, rather than simply tracking training costs,
helps us to better assess overall quality and effectiveness of
our programs. We welcome continuing oversight from Congress to
help us make further progress in this area, and we believe that
providing Congress an annual report on the performance and
effectiveness of our overall firefighting program would produce
the desired outcome.
S. 2003, the Watershed Restoration and Enhancement
Agreements Act--this bill would permanently authorize the use
of watershed restoration and enhancement agreements that the
Forest Service has successfully used with many partners since
its original enactment and subsequent reauthorizations.
Commonly referred to as the Wyden Amendment, this authority has
resulted in improved, maintained, and protected ecosystem
conditions and increased operational effectiveness and
efficiency for national forests and adjacent lands.
The Department supports enactment of S. 2003, and would
like to work with the subcommittee on a short amendment to
provide express authority for mutual benefit agreements as
proposed by the administration.
H.R. 585, the Gateway Communities Cooperation Act--this
bill has various provisions relating to the way that the
Departments of the Interior and Agriculture work with
communities near the borders of certain agency lands.
The Department agrees with the principles embodied by the
legislation--namely, increased cooperation and collaboration
with local communities in national forest management. In the
past several years, we have made substantial progress in our
ability to collaborate with communities, and we think that
progress should be taken into account as the subcommittee
considers this bill.
The administration could support H.R. 585, but only if
amended. We will submit a letter with recommended amendments
shortly.
The Departments would like to work with the subcommittee to
continue to improve our service to gateway communities and
assure that any legislation contributes to that goal.
H.R. 3981, Land Exchange in Tahoe National Forest--this
bill would allow for the exchange of certain National Forest
System lands in the Tahoe National Forest under the procedures
of the Small Tracts Act, because its cases would not otherwise
fall under the requirements of that Act. The Department is not
opposed to H.R. 3981.
This concludes my statement, and I would be happy to answer
any questions that you may have.
[The prepared statement of Mr. Holtrop follows:]
Prepared Statement of Joel Holtrop, Deputy Chief for the National
Forest System, Forest Service, Department Of Agriculture
Mr. Chairman and members of the Subcommittee: Thank you for the
opportunity to appear before you today to provide the Department's
views on S. 906--Wildland Firefighter Safety Act of 2005, S. 2003--
Watershed Restoration and Enhancement Agreements Act of 2005, H.R.
585--Gateway Communities Cooperation Act, and H.R. 3981--involving
Tahoe National Forest land exchanges. I am Joel Holtrop, Deputy Chief
for the National Forest System, USDA Forest Service.
s. 906 wildland firefighter safety act
Since the Department of the Interior and the Department of
Agriculture work closely together in fire management, the two
Departments are providing a joint statement on S. 906, the Wildland
Firefighter Safety Act. The bill would require the Secretary of
Agriculture and the Secretary of the Interior to track funds expended
for firefighter safety and training programs and activities and to
include a line item for such expenditures in annual budget requests.
This bill would also require the Secretaries to jointly submit a report
on the implementation and efficacy of wildland firefighter safety and
training programs and activities to Congress each year. In addition,
the bill would direct the Secretaries to ensure that any Federal
contract or agreement with private entities for firefighting services
requires the entity to provide firefighting training consistent with
qualification standards set by the National Wildfire Coordinating
Group. The Secretaries would be further directed to develop a program
to monitor and enforce compliance with this contracting requirement.
The Departments are concerned that a budget line item may not
achieve the desired oversight of safety efforts and would carry
unnecessary administrative complexities. The Departments do not
consider training costs an effective means of determining a
firefighter's ability to perform safely.
Furthermore, section 2(a)(1) of bill applies only to the Secretary
of the Interior with respect to public land managed by the Bureau of
Land Management. It's important to recognize that wildland fire occurs
not only on public lands but also on the other Federal lands
administered by the Secretary of the Interior through the various other
agency heads.
Required training, recurrent training, required experience, and job
performance cross multiple budget activities and are extremely
difficult to track at the budget line item level. Federal and state
agencies provide funding for national and advanced training academies
as well as training at more local levels. Virtually every firefighting
training course includes some element of fire safety. For these
reasons, the Departments do not support S. 906 in its present form.
Rather than focus upon budget structure, the Departments suggest
that an annual report, which would focus on measurable firefighter
performance and the efficacy of our safety and training practices and
activities, would better assist the Departments' continual improvement
of safety and performance and would provide information to Congress in
its oversight capacity. Indeed, actions are already underway to report
to Congress. For fiscal year 2007, the Forest Service will report to
Congress (as part of the national performance measures) the accident
frequency rate for firefighter injuries during the suppression of fires
under Forest Service jurisdiction. The Department of the Interior
tracks and reports the number of firefighter injuries and the amount of
time lost from firefighter injuries as a proportion of all time spent
firefighting. This information is reported as part of the 10-Year
Comprehensive Strategy Implementation Plan for Reducing Wildland Fire
Risks.
We are taking additional action to improve tracking of firefighter
safety and training measures.
As this Subcommittee is aware, after the investigations of fatal
fires in the last 10 years, we re-examined our safety and training
policies, practices, and performance and implemented numerous
significant changes. These changes have been developed in cooperation
with the Occupational Safety and Health Administration, the Department
of the Interior and other interagency partners through the National
Wildfire Coordinating Group. In addition, an audit by the USDA Office
of Inspector General (OIG) in 2004 of the Forest Service firefighter
safety program and in 2006 of firefighting contract crews provided
recommendations that assisted the Forest Service and the Department of
the Interior agencies in identifying areas for improvement. We have
made significant progress in improving safety, training, certification,
accountability, and reporting.
The National Wildfire Coordinating Group (NWCG), made up of
representatives from the Forest Service, Department of the Interior
agencies, Tribes, and State forestry agencies, establishes minimum
requirements for training, experience, physical fitness level, and
currency standards for wildland fire positions. All participating
agencies must meet these requirements for national mobilization. All
firefighters--federal, tribal, state, local, or contract--carry a
position qualifications document (known as a Red Card) that shows the
firefighter has met all the training, experience, and physical fitness
requirements to perform a specific job under NWCG standards. The Forest
Service has augmented these standards to meet specific safety
requirements for the Forest Service.
Certification of each firefighter is the responsibility of the
employing agency. Firefighters must successfully complete coursework
and multiple training assignments before they are certified for
positions. Individual firefighters are trained to meet unit, regional
and national needs. Performance based qualification standards, training
courses, annual training to maintain currency, drills, and demonstrated
successful performance prepare firefighters for conditions they may
encounter.
I would like to give you an update of items we have improved in
safety, training, certification, accountability, and reporting for
firefighters and contract firefighting crews.
The Incident Qualifications Certification System (IQCS), now fully
operational, responds to .the need for accurate tracking of
qualifications and centralized records as recommended in the 2004 USDA
OIG report on firefighter safety. Training, on-the-job experience, and
certification of each firefighter are documented and then added to the
IQCS. Every federal firefighter must be qualified and in the system
before they can be assigned by fire managers. State, local, and
contract firefighters use different tracking systems.
The 2006 OIG review of crew contract firefighting programs reported
the need for program oversight and gave several recommendations for
improvements. As a result, experience requirements have been included
in the 2006 crew contracts and qualification records were reviewed
prior to contract awards. The Forest Service is working with the
Pacific Northwest Coordinating Group to establish a process to ensure
contract associations' training meet the National Wildfire Coordinating
Group standards. Also included in the 2006 crew contracts is a
provision for standardized language assessment to ensure that there are
no communication barriers that would contribute to unsafe conditions.
The Forest Service is coordinating with other Federal agencies to
identify counterfeit documents used to obtain employment on contract
crews. In addition, temporary workers--that is, workers hired on a
short-term basis during an emergency-must also meet agency
certification requirements.
The interagency Wildland Fire Leadership Development Program trains
firefighters and managers in leadership values through a curriculum of
courses designed to span the career of wildland firefighters from entry
level through management and leadership levels. Individual firefighters
and managers improve their leadership skills through self-directed
continuing education efforts using the on-line resource
(www.fireleadership.gov) to prepare themselves for the decision-making
demands of firefighting.
The Federal Interagency Firefighter Medical Qualifications and
Standards program was developed by the Interagency Medical Standards
Team under the direction of the National Fire and Aviation Executive
Board. This program established medical qualifications, standards, and
procedures to ensure that firefighters have an appropriate level of
health and not be at unnecessary risk, or put other at risk, in
performing arduous firefighter duties. The program is intended to
ensure that sufficient information is available to make a medically
sound judgment of whether an individual could safely perform the
firefighter duties.
Mr. Chairman and members of the Subcommittee, we believe that
examining firefighter performance and safety as a whole, rather than
simply tracking training costs, helps us to better assess overall
quality and effectiveness of our programs. We welcome continuing
oversight from Congress to help us make further progress in this area,
and we believe that providing Congress an annual report on the
performance and efficacy of our overall firefighting program would
produce the desired outcome.
s. 2003 ``watershed restoration and enhancement agreements act of
2005''
This bill would amend Section 323 of the Department of the Interior
and Related Agencies Appropriations Act of 1999 (commonly referred to
as the ``Wyden amendment''), to permanently authorize the Secretary of
Agriculture to use Forest Service appropriations to enter into
cooperative watershed restoration and enhancement agreements with
governments or private nonprofit entities and landowners to carry out
activities on NFS lands or on non-Federal lands within the same
watersheds. Agreements are authorized for the protection, restoration,
and enhancement of fish and wildlife habitat and other resources and/or
the reduction of risk from natural disaster on public or private land
to benefit resources in the watershed. The current authorization
includes provisions on terms and conditions regarding technical
assistance, sharing of costs, ensuring that expenditures are in the
public interest, and that the public investment on non-Federal lands is
protected.
The Department supports enactment of S. 2003, and would like to
work with the Subcommittee on a short amendment to provide additional
authority to more fully implement its provisions.
The Forest Service has successfully used the Wyden amendment since
its original enactment and subsequent reauthorizations. Benefits
include improved, maintained and protected ecosystem conditions through
collaborative administration and implementation of projects as well as
increased operational effectiveness and efficiency through coordination
of efforts, services, and products to accomplish the highest priority
work.
Of the many possible examples, work on the Siuslaw National Forest
in Oregon illustrates the benefits of working across landscapes using
this authority. Since 1998, the forest has implemented 26 projects,
leveraging $321,000 in Federal investments with $387,000 in partner
contributions to restore floodplains, riparian areas, and estuaries;
install in-stream structures; monitor activities; and share
information. Strategic use of this tool has brought a tremendous
benefit to watersheds affecting National Forest System lands.
Two bills have been introduced in the 109th Congress that contain
similar language to this provision. Last September, the Department
testified in strong support of H.R. 3818, which includes authority for
watershed restoration and enhancement agreements as part of a
comprehensive Forest Service partnership bill. H.R. 3818, entitled the
``Forest Service Partnership Enhancement Act'', was based on the
Administration's draft legislation transmitted to Congress under the
same title. A similar bill, also with the same title, S. 2676, has
recently been introduced by Senators Crapo and Lincoln.
These bills contain authority--not included in S. 2003--that would
be important to the Forest Service's future success to cooperatively
carry out watershed restoration and enhancement agreements. That
authority clarifies that watershed restoration and enhancement
agreements are mutual benefit agreements. While the Department supports
enactment of S. 2003, we would like the Subcommittee to consider the
benefits of providing express authority for mutual benefit agreements
as proposed by the Administration.
h.r. 585--gateway communities cooperation act
This bill directs the Secretary of the Interior or the Secretary of
Agriculture to: 1) solicit the involvement of gateway community leaders
in the development of land use plans, programs, regulations, or other
decisions that are likely to have a significant impact on gateway
communities; 2) provide summary materials and, on request, offer
training sessions to officials of gateway communities on meaningful
participation in development of plans, decisions, and policies; 3) on
request, make available personnel to assist gateway communities in
development of mutually compatible land use or management plans; 4)
enter into cooperative agreements with gateway communities to
coordinate the management of land use inventory, planning, and
management activities; 5) coordinate plans and activities with other
Federal agencies, when practicable; and 6) allow any affected gateway
community the opportunity to be recognized as cooperating agencies
under the National Environmental Policy Act of 1969.
While the Department agrees with the principles embodied by the
legislation--namely increased cooperation and collaboration with local
communities in national forest management--we can accomplish these
goals under current authorities. In the past several years, we have
made substantial progress in our ability to collaborate with
communities, and we think that progress should be taken into account as
the Subcommittee considers H.R. 585. The Administration could support
H.R. 585, but only if amended. We will submit a letter with recommended
amendments shortly.
This Administration strongly supports cooperative efforts, as
reflected in Executive Order 13352, Facilitation of Cooperative
Conservation, which calls for collaborative activity among federal,
state, local, and tribal governments, private for-profit and nonprofit
institutions, other nongovernmental entities and individuals. Last
summer, the White House Conference on Cooperative Conservation convened
stakeholders from around the nation and from all walks of life to
discuss ways of facilitating collaborative work. At that conference,
Secretary of Agriculture Mike Johanns affirmed that, ``Conservation
today is no longer about conflict. Instead, it's about cooperation,
about partnerships, about collaborative solutions from the bottom up.''
The Department is committed to building and maintaining strong,
mutually beneficial relationships with communities, including full
participation of communities in land management planning decisions. The
National Forest Management Act, the National Environmental Policy Act,
the Federal Advisory Committee Act, the Healthy Forests Restoration
Act, among other statutes, provide a framework for including
communities in agency planning. Resource Advisory Committees (RACs),
established under the Secure Rural Schools and Community Self-
Determination Act of 2000 have successfully brought together community
members to use collaborative approaches to resource management. RACs
are also being established to implement provisions of the Federal Lands
Recreation Enhancement Act.
In addition, the Forest Service implementation the 2005 Planning
Rule is improving the way it conducts land management planning. The
2005 Planning Rule emphasizes public participation and collaboration.
In places where the new process is being used, communities have
responded enthusiastically by joining collaborative work groups,
participating in field trips and engaging at open houses.
For example, the Kootenai National Forest in western Montana and
the Idaho Panhandle National Forest in northern Idaho are expected to
release their proposed land management plans under the 2005 Planning
Rule today. In developing this strategic vision for future land
management, they convened over two hundred community-based workgroup
meetings and many additional open houses and field trips. Forest
Service personnel consulted with state and federal agencies as well as
forty-two county commissioners, some of whom participated in the work
groups. Throughout the process, government-to-government consultation
occurred with seven Indian tribes. There will always be diverse
opinions about the future of public lands, but we have already seen the
benefits of facilitating interaction of stakeholders at the same table,
working through issues together.
We currently have authority to take actions covered by this bill.
Section 2(d)(7), for example, would allow any affected gateway
community the opportunity to be recognized as a ``cooperating agency''
under the National Environmental Policy Act. The Departments currently
have authority to designate cooperating agencies, under Council on
Environmental Quality regulations (at 40 CFR 1501.6). These regulations
specify that the cooperating agency must have jurisdiction by law or
special expertise. A cooperating agency has specific responsibilities
for contributing to the environmental analysis process.
The Department welcomes the opportunity to better coordinate our
planning efforts with those of gateway communities. Better coordination
would complement the goals of public land management to maintain
healthy and sustainable ecosystems for current and future generations.
We have made progress in actively pursuing collaboration with all
communities of interest and place under our current authorities. Some
of the provisions of the bill may have the unintended consequence of
diminishing our ability to collaborate with a wide array of
stakeholders. For example, providing special status to one community
and not another could result in the appearance of differential
treatment for affected communities.
Forest Service Chief Dale Bosworth has made it his goal to reduce
what he has termed ``process predicament''. We are concerned that H.R.
585 could create additional process, and we would like to work with the
Subcommittee to avoid this outcome.
The Departments would like to work with the Subcommittee to
continue to improve our service to gateway communities and assure that
any legislation contributes to that goal.
h.r. 3981--land exchange tahoe national forest
The Department is not opposed to H.R. 3981.
H.R. 3981 would allow for the exchange of National Forest System
lands (NFS) on the Tahoe National Forest with lands of the Christensen
and McCreary families. The proposed exchanges are not authorized under
the Small Tracts Act because, in one case the family's tract does not
meet the law's requirements of innocent encroachment and in the other
case the family's tract does not qualify as a mineral survey fraction.
The Christensen exchange would involve seven acres of non-federal
lands being exchanged for seven acres of federal lands. Both parcels
are located within the North Yuba River Corridor.
The McCreary exchange would involve less than one acre of non-
federal land being exchanged for less than one-acre of federal land.
Both parcels are located adjacent to the town of Downieville,
California. The non-federal parcel would provide valuable public trail
access along the North Yuba River, if acquired by the Forest Service.
This concludes my statement, I would be happy to answer any
questions that you may have.
Senator Craig. Joel, thank you very much.
We've just been joined by our colleague, Maria Cantwell.
Would you wish to make any opening comment or comments in
relation to any of the bills, especially S. 906, before we
proceed?
Senator Cantwell. Mr. Chairman, I'll just get right to
questions whenever appropriate.
Senator Craig. Thank you very much.
Now we'll turn to you. Chris, please proceed.
STATEMENT OF CHRIS KEARNEY, DEPUTY ASSISTANT SECRETARY FOR
POLICY, MANAGEMENT AND BUDGET, DEPARTMENT OF THE INTERIOR
Mr. Kearney. Thank you, Mr. Chairman.
Mr. Chairman and members of the subcommittee, good
afternoon. Thank you for the opportunity to present the
Department's views on H.R. 585, the Gateway Communities
Cooperation Act.
The administration could support H.R. 585, but only if
amended to address concerns that we've described in our
testimony. We strongly support the bill's goals to promote
communication, cooperation, and coordination between Federal
land management Bureaus and the local communities that may be
affected by the decisions of those Bureaus, but we'd like to
work with the subcommittee to ensure that these goals are
achievable and accomplished in an effective and efficient
manner. We'll be submitting a letter jointly with the Forest
Service with those recommendations shortly.
H.R. 585, among other things, would require Federal
agencies to involve officials from impacted communities early
in the development of Federal plans, programs, regulations, and
decisions, and provide local officials with plain-English
summaries of those assumptions, purposes, goals, and objectives
of decisions and any anticipated impacts on the communities. It
would also further authorize cooperative agreements and require
greater coordination among the agencies in engaging gateway
communities in their planning process.
We realize that the resource management decisions we make
can greatly impact local communities and the people who live in
them. Often, these impacts are especially felt by gateway
communities, including those on tribal trust land, and are
adjacent to our Federal lands. As a result, we realize that we
must work in partnership with the people who live on the
private land and tribal lands that border our parks, our
refuges, and other Federal lands, and work on--and who also
work on those lands or who have access to resources on them.
Mutual benefits flow from cooperating with these
communities. Gateway communities often take on additional
infrastructure and environmental duties that come with visitors
headed to nearby Federal lands. Additionally, some of these
communities may also incur costs for additional services, such
as law enforcement, search and rescue, public works. These
additional costs, however, may also be offset by the increased
employment income and tax revenue.
Given this close relationship with gateway communities, the
Department and the Bureaus have made it a priority to ensure
that we are actively working to engage those communities in our
planning process.
I'd like to take a moment to share with you the
collaborative practice of BLM, the Fish and Wildlife Service,
and the Park Service, as well as some--just an example or two
of some of the successful projects we've undertaken in
collaboration with those communities.
Under current practice, the agencies and the--all the
Department Bureaus already invite State, tribal, and local
entities, in addition to Federal agencies, to participate as
cooperating agencies during development of environmental impact
statements under NEPA. Our departmental guidance sets forth the
requirement to invite the participation of these entities,
along with more specific guidance on the establishment of the
relationship, including the development of a memorandum of
understanding concerning respective roles, assignment of
issues, schedules, and staff assignments.
The Department incorporates this requirement in guidance
for application to all Bureaus in June 2005, shortly after BLM
became the first Federal agency to promulgate land-use planning
regs into requiring invitations to eligible gateway communities
to participate as cooperating agencies and for environmental
impact statements for land-use plans.
One quick example of a gateway community project that BLM's
been involved in is in the gateway community of Sonoita,
Arizona. Local citizens formed the Sonoita Valley Planning
Partnership, which developed visions, goals, and desired future
conditions for the areas. BLM then incorporated those
objectives as the foundation for the resource management plan,
thus providing the community with the means to articulate and
achieve its goals through the management of the natural
conservation area.
The Park Service and the Fish and Wildlife Service also
have examples that are included in my testimony, which I won't
get into, which also illustrates some of the success stories
we've had with cooperating with local communities.
Through many of these efforts--these and other efforts, the
Department is working to ensure that all of its management and
policy decisions are made using a collaborative approach. While
we believe that it can positively promote this goal to more
effectively communicate, coordinate, and cooperate with gateway
communities, we do have a few concerns, as well as technical
concerns. And, in the interest of time, as I say, I will not
get into them now, except to say--I'll highlight one, for
example, where we think the definition of ``gateway community''
could be better defined and clarified and strengthened a bit.
It is also worth noting that there are other areas
throughout the bill, as it relates to technical assistance and
other matters that the bill touches on, that we think, in
working with the subcommittee, we could address those issues
and reach a mutual agreed conclusion.
Thank you, Mr. Chairman, for your time this afternoon.
[The prepared statement of Mr. Kearney follows:]
Prepared Statement of Christopher Kearney, Deputy Assistant Secretary
for Policy, Management And Budget, Department of the Interior
Mr. Chairman and Members of the Subcommittee, thank you for the
opportunity to present the Department of Interior's views on H.R. 585,
the ``Gateway Communities Cooperation Act.''
The Administration could support H.R. 585, but only if amended to
address concerns cited below. We strongly support the bill's goals to
promote communication, cooperation, and coordination between federal
land management bureaus and the local communities that may be affected
by the decisions of those bureaus, but would like to work with the
Subcommittee to ensure that these goals are achievable and accomplished
in an effective and efficient manner. We will submit a letter with
recommended amendments shortly.
H.R. 585 would require federal agencies to involve officials from
impacted communities early in the development of federal plans,
programs, regulations and decisions and to provide local officials with
plain-English summaries of the assumptions, purposes, goals, and
objectives of decisions, and any anticipated impacts on the community.
H.R. 585 would require the Secretary to provide training sessions on
agency planning processes and participation opportunities and to make
available federal personnel to assist gateway communities in the
development of land use plans. H.R. 585 would further authorize
cooperative agreements and require greater coordination among federal
agencies in engaging gateway communities in their planning processes.
Finally, H.R. 585 would direct the Secretary to allow gateway
communities ``the opportunity to be recognized'' as cooperating
agencies under the National Environmental Policy Act (NEPA).
The Department's bureaus manage more than one out of every five
acres of land in the United States, with most of these lands in the
West. For example, the Department manages 72 percent of Nevada, almost
50 percent of Utah, and 62 percent of Alaska. Lands under our
jurisdiction include vast multiple-use areas, and our bureaus host
almost half a billion visitors a year, creating economic engines for
communities across the country.
Population growth and economic expansion have increased pressures
on our undeveloped land, water resources, and wildlife. While countless
species depend on the land to sustain life, families depend on the land
for community and economic well-being. We realize that the resource
management decisions we make can greatly impact local communities and
the people who live in them. Often these impacts are especially felt by
``gateway'' communities--including those on Tribal Trust Lands--that
are adjacent to our federal lands. As a result, we realize that we must
work in partnership with the people who live on the private and tribal
lands that border our National Parks, National Wildlife Refuges, and
other federal lands, and work on those lands or have access to
resources on those lands.
Mutual benefits flow from cooperating with these communities.
Gateway communities often take on the additional infrastructure and
environmental duties that come with visitors headed to nearby federal
lands. This has the effect of reducing the pressure on federal
resources while stimulating gateway economic growth and creating jobs
in those communities. For example, according to a study entitled,
Banking on Nature 2004: The Economic Benefits to Local Communities of
National Wildlife Refuge Visitation, nearly 37 million people visited
national wildlife refuges in 2004, creating almost 24,000 private
sector jobs and producing about $454 million in employment income.
Recreational spending on refuges generated nearly $151 million in tax
revenue at the local, county, state and federal level. Some of these
communities experience unusual pressures and problems brought about by
their popularity as entry points for visitors onto federal lands.
Additionally, some of these communities may also incur costs for
additional services such as law enforcement, search and rescue, and
public works. These additional costs, however, may be offset by the
increased employment income and tax revenue.
Given this close relationship with gateway communities, the
Department and the bureaus have made it a priority to ensure that we
are actively working to engage gateway communities in our planning
processes. We would like to share with you the collaborative practice
of the Bureau of Land Management (BLM), the National Park Service (NPS)
and the U.S. Fish and Wildlife Service (FWS) as well as some specific
examples of successful projects undertaken in collaboration with
gateway communities.
Under current practice, the BLM, the NPS, and the FWS and all of
the Department bureaus already invite state, tribal, and local
entities, in addition to federal agencies, to participate as
cooperating agencies during development of an environmental impact
statement under NEPA. Existing Department-wide guidance at 516 DM 2.5
(Departmental Manual) sets forth the requirement to invite the
participation of these entities, along with more specific guidance on
the establishment of the relationship, including the development of a
memorandum of understanding concerning respective roles, assignment of
issues, schedules, and staff commitments. The Department incorporated
this requirement and guidance for application to all bureaus in June
2005, shortly after the BLM became the first federal agency to
promulgate land use planning regulations requiring invitations to
eligible gateway communities to participate as cooperating agencies on
environmental impact statements for land use plans. The Council on
Environmental Quality (CEQ) regulations and guidance are utilized by
all federal agencies to engage the participation by state, tribal, and
local entities as cooperating entities during the NEPA process.
Through collaboration and partnerships, the BLM determines how best
to manage public lands to meet the needs of both local communities and
the Nation as a whole through the planning process. This entails the
BLM working with individuals, communities, and governments from the
earliest stages and continuing through the land use planning process to
address common needs and goals within the planning areas.
Some examples of how the BLM has successfully worked with gateway
communities include the following:
The Sand Flats Agreement--Under a 1994 agreement among the
BLM, Grand County, and the state of Utah concerning a 7,000
acre recreational area outside Moab, Utah, fee collection was
turned over to the county, and the receipts were made available
to the county for use in managing, providing educational
services, and policing the highly popular recreational area.
The BLM and its visitors have a signature recreation area, and
the county has been able to control tourism in a way compatible
with the wishes of its local citizens. The agreement has also
resulted in a more vigorous tourist trade to benefit the local
economy.
Las Cienegas National Conservation Area--In the gateway
community of Sonoita, Arizona, local citizens formed the
Sonoita Valley Planning Partnership (SVPP), which developed
visions, goals and desired future conditions for the area. BLM
then incorporated the SVPP objectives as the foundation for the
Las Cienegas Resource Management Plan (2003), thus providing
the community with the means to articulate and achieve its
goals through the NCA's management.
The NPS also emphasizes participation of communities in the wide
variety of planning efforts it undertakes. During development and
updates of each park unit's General Management Plan, NPS typically
initiates the process by engaging in extensive outreach with affected
communities by such means as giving presentations at civic group
meetings and holding open houses. The NPS has produced a video that is
often used at the meetings to explain the planning process. When NPS
undertakes studies that have been authorized by Congress, such as
studies of potential new park units, national trails, wild and scenic
rivers, and national heritage areas, NPS engages all interested
entities, including local communities, in a highly collaborative public
process in effort to identify the best alternatives for preserving,
managing, and interpreting resources. These efforts are consistent with
Director's Order 75A, Civic Engagement and Public Involvement
(strengthened and reissued in 2003), which recognizes the strong
interest of gateway communities in NPS actions and articulates our
commitment to collaborating with interested parties.
Some examples of how the NPS has successfully worked with gateway
communities include the following:
Zion National Park--Zion National Park and the gateway
community of Springdale, Utah have established a mutually
beneficial partnership through the creation of the Zion/
Springdale transportation system. The system has enabled the
town to draw customers to local businesses by providing parking
and shuttle stops outside the park and has provided the park
the benefits of decreased traffic congestion and pollution.
Grand Teton National Park--Grand Teton National Park and the
gateway community of Jackson Hole and Teton County, Wyoming
partner for search and rescue, major disaster and fire
response. The park also collaborated with the chamber of
commerce on a branding and marketing program called
``Respecting the Power of Place,'' which reinforces a
commitment to foster both conservation and commerce in the
Jackson Hole area.
Through a highly collaborative process, the FWS is currently
working to complete Comprehensive Conservation Plans (CCP) for 517
National Wildlife Refuges and 37 Wetland Management Districts by 2012,
as mandated under The National Wildlife Refuge Improvement Act of 1997.
A CCP provides a vision for the next 15 years and ensures that each
unit is managed to fulfill its individual purpose and the National
Wildlife Refuge System mission. CCPs examine opportunities for
facilitating compatible wildlife-dependent recreation, such as hunting,
fishing, wildlife observation and environmental education. CCPs use
sound science to establish achievable goals, objectives, and outcomes.
FWS had completed CCPs for 107 of 554 refuge and wetland management
units as of September 30, 2005 and expected to complete CCPs for 92
units in FY 2006 and 49 units in FY 2007.
The FWS has integrated community and public participation into the
CCP process. Prior to and during preparation of a CCP, FWS seeks and
subsequently analyzes comments and concerns from federal, tribal,
state, and local governments and private landowners concerning land
management issues that may impact or relate to the refuge. A draft CCP
is released to the public for comment, with copies provided to the
interested entities. The FWS reviews and analyzes the comments, and a
final CCP is released to the public. Following the adoption of a final
CCP, FWS continues to improve and update the plans through annual
reviews.
Some examples of how FWS has successfully worked with gateway
communities and some of their over 200 Friends groups include:
J.N. ``Ding'' Darling National Wildlife Refuge--The Refuge,
the Ding Darling Wildlife Society (Society), the City of
Sanibel, Lee County, and other interested entities work
together on a variety of efforts that result in better services
for the more than 850,000 visitors to the refuge. Such
collaborative efforts range from addressing water quality
issues on the island, Ding Darling Days, and developing and
constructing the state-of-the-art education center on the
refuge.
Bosque del Apache Refuge--The Refuge and the Friends of
Bosque Del Apache Refuge have worked closely with the City of
Socorro, New Mexico for 18 years to produce the highly attended
``The Festival of the Cranes.'' This refuge based event
celebrates the annual return of the sandhill cranes and
numerous other species of birds that come to the refuge for the
winter.
Through these and many other efforts, the Department is working to
ensure that all of its management and policy decisions are made using a
collaborative approach.
While the Department believes that H.R. 585 can positively promote
this goal to more effectively communicate, coordinate, and cooperate
with gateway communities, we do have a few concerns as well as
technical issues with the bill. To address these issues, we plan to
work with the U.S. Forest Service on a followup letter to the
Subcommittee with specific suggested amendments that we believe will
strengthen and clarify the bill. We would like to briefly highlight
some of our concerns with H.R. 585.
First, we are concerned about the definition provided for gateway
communities in section 2(c)(1) and believe it could be strengthened. As
drafted, it is not clear what constitutes a gateway community, and it
could vary greatly depending on the state in which the gateway
community is located. The head of the tourism office for the state also
may not be the appropriate individual to make the determination of
whether a community is significantly affected--particularly if the
management decisions involve land uses that do not involve recreation.
For these reasons, we strongly recommend an amendment to provide that
the Secretary, in consultation with the state, determines whether a
local government constitutes a gateway community for the purposes of
this bill. The amendment would clarify that the relevant Secretary has
the responsibility to ensure that similarly affected communities in
different states are provided with similar opportunities. It also would
ensure that the bill does not limit consultation to a state tourism
office, but allows for consultation with the appropriate state contact,
depending on the circumstances.
Second, we recommend revisions to section 2(d)(3), which mandates
the Secretary to provide training sessions at the request of the
gateway community. We believe it is important to improve communication
and provide clear information about agency processes and opportunities
to participate in planning. However, this section is too restrictive.
We believe that the level of knowledge about an agency's planning
process can vary greatly from community to community. We suggest
language that would allow for the flexibility of providing a variety of
training materials and tailoring the federal response to the gateway
community's request depending on the level of familiarity particular
officials have in federal planning processes. For example, in some
situations, an official may prefer to be provided written summaries of
the planning process and the opportunities to participate rather than
receive formal training sessions.
Third, we are concerned about the provision in section 2(d)(4),
which mandates that federal personnel take temporary work details to
gateway communities to assist with planning efforts. We would like to
work with the Subcommittee to find effective ways to provide
assistance. The provision could entail not only federal planning
efforts but state and local planning efforts. We believe this provision
is not feasible, could result in competition among gateway communities
for limited federal personnel, and could result in significant delays
of federal projects as federal personnel are diverted from their
planning duties. BLM estimates that approximately 4,000 communities are
within, abut, or are adjacent to significant BLM-managed areas. The
number of gateway communities that would be eligible to make the
request for technical assistance is likely to far exceed the number of
federal planning experts who would be available in the field offices to
provide the assistance. In a time of austere budgets, federal agencies
must focus limited resources on effectively managing our current
responsibilities.
Fourth, we believe that the process for communicating an interest
in participating as a cooperating agency and the guidelines for such
participation in section 2(d)(7) is unclear, as drafted. We suggest an
amendment that delineates the process by which the Secretary would
notify potentially interested communities of a land use planning issue
and by which a gateway community would communicate with the Secretary
its interest in participating as a cooperating agency. During
development of land management plans, Department bureaus already
regularly offer affected states, tribes, and localities participation
as cooperating agencies, and the CEQ regulations and guidance, the
Department Manual and some agency regulations and guidance include
procedures for such engagement. Thus, we suggest an amendment to ensure
that these same authorities, in addition to NEPA, guide participation
by gateway communities. We also would like to further discuss whether
this section may be more appropriately incorporated into other sections
that more generally address the engagement of gateway communities.
Looking back, one of the ideas behind the National Environmental
Policy Act was that informed decision-making would result in the making
of better decisions. The Department believes that H.R. 585, if amended
as described in this testimony, can promote improved land management
decisions accruing to the benefit of private and public lands and the
people who live and work on them. Peaceful problem-solving and
partnerships are keys to good land management. H.R. 585 promotes this
through better communication, coordination, and cooperation between
federal land and gateway communities and their citizens. We appreciate
the opportunity to present these suggested amendments and look forward
to working with the Subcommittee further on this important bill.
Mr. Chairman, this concludes my statement. I am happy to answer any
questions you or other members of the Subcommittee may have.
Senator Craig. Chris, thank you.
Thank you both for your testimony. Let me begin the
questioning.
Specific to H.R. 585, the gateway communities, I'm going to
ask this question, or questions, of both of you, to get your
reaction. Why do you think these communities have pushed for
legislation to force agencies to establish neighborly
relationships with them?
Chris?
Mr. Kearney. I guess I would answer that by saying, well,
our approach to working with communities has been pretty
comprehensive, in terms of gateways and other communities
across the country, under the broad-banner approach we have had
to cooperative conservation, and cooperative conservation
efforts, most recently noted in the President's Executive Order
on Cooperative Conservation, which was issued in 2004, which
was also followed up by a very successful White House
Conference on Cooperative Conservation in which folks from
across the country came together and shared examples and
success stories of work with Federal agencies in partnership
and collaboration, but which also had challenges remaining, and
that would--provided a great platform for it.
In recent years, in that spirit, we have undertaken a
number of efforts to ensure that we are working in
collaboration and partnership with communities, with States,
with tribes, and an array of folks that are affected by our
work.
A couple of examples I would highlight for you that folks
may not be away of is that we offer training programs,
particularly the BLM, that are provided for Federal managers
and for local community representatives on how to do
partnering, and how to engage in collaboration, and deal in
tools associated with negotiating and coming to consensus and
agreement, that allow them to draw out the issues associated
with consensus, and how to get to a consensus. This has been
met with a great deal of success by the BLM communities and
others, and that program continues to be expanded.
A second recent example is something that came out of the
White House Conference that each of the five agencies that
sponsored it highlighted, which is essentially seeking to
change, fundamentally, how we train, reward, and--train,
reward, and hire individuals with respect to the area of
collaboration and cooperation, a forestry partnership approach
to partnership. For example, we are working to add behavioral
characteristics of individuals in both--for purposes of
promotion and in hiring that take into consideration their
experience and ability to do--efforts in the area of
partnership and collaboration that they've done, not simply--in
addition to education. Typically, what happens is, you look at
someone in terms of hiring with an eye toward their strict
educational background or when they're being promoted, and how
many years in that position. We're actively working now, the
agencies are, to establish a process by which we'll take into
consideration how they actually--what kind of activities
they've engaged in or have the skills set to--in the area of
collaboration and partnership.
Another important area of things that we've done is we've
also expanded, dramatically, our cooperative conservation-
oriented grants. There's been about a 50-percent increase in
those grants in the past 5 years. Many of those grants, such as
the Partners for Fish and Wildlife and others, focus on
partnerships and matching dollars and collaboration with local
communities and the like in carrying out conservation projects.
Probably one of the--another example that I'd highlight in
some detail, if given the opportunity, has to do with some of
the matters related to training.
So, I think those and other activities we engage in have
really improved and expanded the relationship we have with
communities and others. We certainly think there always could
be more work to do. There certainly have been areas and
challenges in the past where there have been times where the
agencies have been somewhat inward-looking. And we realize that
there are still challenges, but we think we're moving in the
right direction administratively, and that this bill, if
reflecting the changes we talked about, can be another tool in
the toolkit, if you will, of advancing our efforts toward
cooperative conservation approaches.
Senator Craig. OK. Joel, anything you'd wish to add to
that? That was a fairly comprehensive answer, at least from the
Department of the Interior.
Mr. Holtrop. It is. And I'll just add, briefly, that--maybe
just a couple of things from the Forest Service's perspective
which add to the things that Mr. Kearney has already mentioned.
One is, we also feel like we have improved our ability to
work with communities. And it's something that we have been
stressing over time. As the Department of the Interior just
stated, even as we go through the process of selecting who are
going to be our district rangers, who are going to be our
forest supervisors, one of the most important criteria that we
use to make those are their abilities and their skills in
community relations and their obvious inclination toward
working with communities. And we think we're doing better at
that.
We also have a new planning rule that was established in
2005 which stresses community outreach and community
involvement in our planning process. And today, as we speak,
two forest plans--one, the Kootenai National Forest in
northwest Montana, and the other, the Idaho Panhandle National
Forest, in northern Idaho--are both coming out with their
proposed plan under the 2005 planning rule. And those plans
represent over 200 public community workshops and working with
community leaders such as county commissioners and others. I
think those are reflective of the types of progress that we're
making, and that type of progress, I think, again, should
inform our discussions and our thoughts about this piece of
legislation.
Senator Craig. Thank you both.
Let me turn to my colleague from Wyoming, Senator Thomas.
Craig?
Senator Thomas. I guess I just would say, again, as I think
I said before, I certainly promote and want to work for the
coordination, but I don't want to pass bills that aren't
necessary. Do you think we need this bill to finish this job?
Mr. Kearney. I think with the kinds of changes we have
talked about, clarification of what the definition of a
``gateway community'' is, where an agency and the State would
come to an agreement on what that is--because there are a lot
of issues and factors that go into gateway community and what
it is, and so forth, that, among other things, would add, sort
of, to that toolkit, if you will. But I think we share, in
spades, your view of not--ensuring that we don't pass
unnecessary legislation or add processes that we don't need to.
We're looking to streamline and consolidate and make our
efforts to outreach with communities more effective, not less
so.
Mr. Holtrop. Again, I don't have much to add to that, other
than to also acknowledge that the spirit of this legislation is
one that we certainly agree with. And anytime that there is a
tool that can be added, that would help us be more responsive
to our--in our interrelationships with communities, that's an--
it's an important thing for us. We do believe that we have a
lot of authorities, a lot of tools, and a lot of will to do
that. With our given authorities, if a piece of legislation
would improve our opportunities to do that without getting in
the way of us being able to----
Senator Thomas. Well, that's what we're asking you.
Mr. Holtrop [continuing]. Make the progress we want to
make, that's what we want to watch for.
Senator Thomas. We're asking you that. Is that the case?
Mr. Holtrop. Again, we are going to be proposing some
amendments to this legislation that we think would address the
concerns that we have.
Senator Thomas. OK, thank you.
Senator Craig. Senator Cantwell, questions of the panel?
Senator Cantwell. Thank you, Mr. Chairman. And thank you
for scheduling this hearing.
Mr. Holtrop, thank you for being here, and thank you for
your testimony. I have had a chance to review most of it. I am
so sorry for getting here late for the oral presentation of
that. But in your testimony, you say that you're supportive of
reporting requirements as it relates to S. 906, and that it's
just a matter of--you might have different requirements in
reporting provisions. What are you thinking about, as far as
the reporting requirement?
Mr. Holtrop. What we're proposing is reporting requirements
that are comprehensive in nature, that talk about, ``What are
the outcomes?'' and ``What are the results of the work that we
have done, in terms of improving our fire safety programs, in
terms of improving the training related to fire management?'',
and that we would report on what progress has been made. For
instance, we have information now available to us that we did
not have in the past because of our response to some of the
previous Inspector General reports, et cetera, that we have
been responding to, that we now have the ability to provide
information on the number of firefighter injuries that have
occurred in a season, or close calls and things like that. And
we believe that we can report, at the end of the season, to
this committee, the types of progress that we have made, the
types of trends that we're having, that we think would be
effective in helping us manage our overall safety program in
fire, and help you do the appropriate oversight.
Senator Cantwell. So, outcomes, specifically. Is there
anything else that you're----
Mr. Holtrop. There are--I mean, there's a lot of detail
associated with that, that I think that we could provide. And I
think we can continue to look for additional things that ought
to be provided to make sure that the objectives that we share,
such as providing for a safer fire management program, that
we're meeting that. So, I think, again, trends, what has
happened, in terms of what has happened on the fireline, what
has happened in terms of occurrences as the year progresses,
that's the type of thing that we're talking about.
Senator Cantwell. One of the things that the Inspector
General report focused on was the wildland firefighters. I
think it was \1/3\ of the contract firefighters, they believe,
did not meet the National Wildfire Coordinating Group
standards. In fact, they found that the Forest Service really
didn't have a good procedure to review those qualifications and
records. Do you see this as a hole in the process? And do you
think that the Forest Service is putting a plan in place, long
term, to monitor the contract work and the success of that
contract work?
Mr. Holtrop. I do. In March 2006, the Office of the
Inspector General completed their review of our crew contract
firefighting programs, and they had five recommendations for
us. And we agreed that if we were to respond positively to each
of those recommendations, we would be responding, as
appropriately, to making sure that our contract crews were
meeting the types of safety requirements, the same requirements
that we require of our hired firefighters, that we would be
requiring the same things of our crews. We believe that we are
responding positively to each of those recommendations and are
confident that that will help us.
Senator Cantwell. And this would be something that you
would also monitor and report on, the efficiencies of those
contracts and successes and----
Mr. Holtrop. Yes.
Senator Cantwell. I'm perplexed over the aspect of this
legislation where we would like to track the amount of money
that's actually being spent on training. And the reason that
we're interested in this is, we want to make sure that we
understand dollars to support the training effort, what we're
spending, that it doesn't--that it's not a category that gets
shortchanged. I think at one point in time we even got a number
that was something like $29 million over the last several years
had been spent on this effort. But that's one aspect of the
bill you don't support, and it's one aspect that I think I've
gone around with Secretary Rey many, many times on, trying to
get access to that information. And in your testimony, you say
you don't consider training costs as an effective means of
understanding this issue.
And so, when I think of the complexity of budgets that we
have on so many fronts, when I think of the Hanford clean-up or
nuclear waste, other things that our Energy Committee has to
deal with, I think those are--that's complex. What's so complex
about tracking both the contract work and the investment in
training dollars for the noncontract firefighters? I still
don't understand why this is such a hard thing for the agency
to just say, ``This is what we're spending on training and
education.''
Mr. Holtrop. I'll try to respond to that helpfully. Before
I do so, I want to express that, as somebody who has been
intimately involved in the follow-up to some of these fire
fatalities, including speaking at the dedication ceremony on
the 1-year anniversary of the Thirty Mile Fire, and speaking to
the families of the victims of that----
Senator Cantwell. Thank you for doing that. We appreciate
it.
Mr. Holtrop It was an honor to be able to do so, and it
was--and in that event, I felt like I made a commitment to
those families that we would learn from the experiences that
their children and their siblings and their spouses had
experienced, that we would learn, and we would never forget the
sacrifices that they made.
And so, I also want to say that I appreciate your
persistence in this, and your dedication to also finding a way
to make sure that the outcome of this is something--that we
have a safer firefighting organization. I'm also a father of a
firefighter. My daughter fights fires and will be leaving later
this month to do the same thing. And so, from that perspective,
I also appreciate that, and I want you to know that I
appreciate it a great deal.
So, I think we have the same objectives in mind, and I
think we both care about it deeply. I think it's just a
question of what is the right means to take, in order to reach
the objective that we share.
I think the concern that we have over the tracking of
things such as training costs and safety training costs is
safety is integral to everything that we do in firefighting.
Every one of our training programs is replete with safety.
There are questions that we would ask around--the reason we
have a system that provides for--these are the requirements we
have for what an engine is and what it takes--what are your
requirements for operating that engine. The reason we do that
is, there's safety associated with knowing what we get when we
order an engine. When we get additional communication
equipment, there's reasons that we get additional communication
equipment. Those are safety related. It's hard for us to tease
out safety from the overall basic work that we do in fire
management. So, that's one of the concerns that we have.
There are also--and so, the difficulties there----
Senator Cantwell. Mr. Holtrop, if we modified that word to
make sure that we're adequately characterizing what we're
looking for--because, yes, there's, I'm sure, communication and
safety that goes on every day, but we're trying to look at the
basic programs that are structured around getting the young men
and women ready and prepared to do this task, which is, you
know, often a very dangerous task. And we appreciate the
efforts of people that are involved, but we also want them to
be well trained and well supported. And so, I think what we're
looking for is a ballpark number, not every aspect--I don't
know that you'd ever come before this committee, or at least
not from this Senator, and hear, ``Well, wait a minute, you
didn't include, you know, this aspect of day-to-day
communications.'' What we're trying to--I think, because of
Storm King, because of Thirty Mile, because of the IG's report,
and saying that these are the habitual issues--that you might
have commands, but are the commands really being followed, and
are they really being implemented in a way that we have young
men and women really being at the level of expertise that we
need them to be?
And we've heard, again, many examples of the implementation
and the improvement, but I think what we're trying to avoid is
getting to another situation again where we find out the same
aspects of those ``watch out'' rules are being missed or being
violated. And if we have--and there's no guarantees in this. I
think this committee has a great deal of knowledge and
background about how challenging this business is, just from
the very beginning. But what we're trying to say is, we know
that we have--we're improving on that ``watch out'' list and
exactly the--we have a program in place for those situations,
when extreme situations flare up and things go from just a day-
to-day situation of fighting fires to a very high-level, very
complex fire, and catch people who may not be as trained and
educated on those challenges and those ``watch out'' rules.
Mr. Holtrop. Right.
Senator Cantwell. That's what we're really trying to do,
make sure that we've got this down, and that we are making that
investment.
Mr. Holtrop. Well, I think you have correctly assessed our
most dangerous situations, those transitional fires, when a
fire goes from being something that doesn't appear to be as
dangerous to a dangerous situation very quickly.
Again, I think there are two additional reservations that I
feel around this issue. One is the amount of time, the
administrative time it would take to track those additional
items around safety and training on a case-by-case basis. Our
current financial systems--we're actually geared toward trying
to compress the number of line items in the--that we're
managing in order to improve our financial tracking abilities.
This would move in the opposite direction of that. And so, our
current financial systems, our recordkeeping systems, are not
equipped to deal with it. It's something that we can get to the
point of being equipped to deal with it, but it would take
extensive effort to do so. And, again, the question that we
have is, are we focusing on the most effective means to assure
that we're accomplishing our shared objective?
The other concern I would have with a line item is, the way
we currently accomplish our safety and our fire training is,
we're able to do our safety training out of our fire
preparedness account or out of our fire suppression account, et
cetera. If we were to have a separate line item for fire safety
and training, I have a fear that it might, in fact, become more
of a cap on how much we can spend, rather than a floor, a base
level of what we would spend on it, because, say, at the end of
the year, if we had--if 30 million is the right number, and,
come September, we have a set of fire situations in which we
need to bring in military crews or something, and we want to do
some additional fire training under appropriation integrity
rules, we'd have to figure out a way to be able to fund the
training; whereas, currently, we'd be able to do so from either
preparedness or suppression.
Senator Cantwell. Well, Mr. Holtrop, I know my time is up.
I'm going to take you at your word and work with you to see if
we can get this language in a way that you will be supportive
of, because somehow I just think there has to be a way to do
this. And I think just about every agency in the Government has
to outline some of these issues. So, let's work together and
try to figure this out.
Mr. Holtrop. Thank you.
Senator Craig. And I do hope you would work with the
Senator. I think all of us are concerned when life is lost. I
certainly know that the appropriate training, preparedness,
alertness, all of those things in combination are well
understood, because, with the best of training under the worst
of environments, sometimes it doesn't work the way we would
want it to, but the greater chance of lifesaving efforts is at
hand, if they're well trained.
Joel, I have some additional questions as it relates to
land exchanges. I'm going to submit those to you for the record
and ask for some more information. And that is in relation also
to the Tahoe National Forest Land Exchange.
We've got another panelist who is time-sensitive to a
plane, so we're going to ask you to stand down. We thank you
both, Joel and Chris, for being with us today and we appreciate
your testimony.
Now, let us invite Steve Duerr and Bob Warren to the table.
Steve, I understand it's you who are time sensitive to an
aircraft.
Mr. Duerr. Yes, Senator.
Senator Craig. All right. We're going to start with you,
Steve Duerr, former executive director, Jackson Hole Chamber of
Commerce, Jackson Hole, Wyoming.
Mr. Duerr. Thank you, Senator--
Senator Craig. But, first, does your Senator wish to make
any additional comment?
Senator Thomas. No, go right ahead. I've already recognized
him.
Senator Craig. All right.
Senator Thomas I'm delighted that he's here.
Senator Craig. Please proceed, Steve.
STATEMENT OF STEVE DUERR, FORMER EXECUTIVE DIRECTOR, JACKSON
HOLE CHAMBER OF COMMERCE, JACKSON, WY
Mr. Duerr. Thank you, Senator. And thank you, Senator
Thomas.
I want to make clear up front that, as you corrected for
the record, I'm the former executive director of the Jackson
Hole Ski Corporation--or, excuse me, the Jackson Hole Chamber
of Commerce, having recently resigned to return to my private
law practice. So, I'm here as a citizen lawyer who has worked
on these issues for probably 20 years. And, by relevant
background, let me just say that for about 7 years, I was
general counsel to the vice president at the Jackson Hole Ski
Corporation, working on Forest Service permit matters and
development issues in Jackson Hole. For a long time, I was in
private practice, working on development issues, and I'm
presently in my 17th year as general counsel for the electric
and gas cooperative in the southern Greater Yellowstone--part
of Idaho, part of Wyoming--working on national park and forests
and BLM easements and other land-use matters, and that, as I
mentioned, for the last 7 years I've been the director of the
Jackson Hole Chamber of Commerce.
Teton County, WY, has only 3 percent private land, so you
can imagine the significance of the National Elk Refuge, the
national parks, and the national forests to the economy of
Teton County.
Our vision for the Chamber of Commerce is a community that
works. And, in that context, a community that works is one that
takes a multiple-use approach to the use of natural resources,
and every day you go to work trying to strike the right balance
between commerce and conservation.
But I'm not here representing any of those entities or
clients or interests, other than to speak about this bill and
my hope for its improvement, because it's so important to
gateway communities. And I do want to make clear, as I did in
my written testimony, Senator, that the section 2(a) findings,
the nine findings, are very well-written, they're succinct, and
they provide a balanced perspective on the challenges that
gateway communities face.
With respect to other written comments on the purposes
clause, the improved communication, coordination, and
cooperation--the three C's--it's like chasing the Holy Grail,
but that's what we're all interested in pursuing in our gateway
communities, and that purpose is praiseworthy and it's
correctly stated. To this extent, though, I hope there can be
amendment.
Requiring cooperation--as you require cooperation in a
Federal statute, you create the false expectation that by
having required it, you'll get it. That's my concern. Might it
be better to say ``assist Federal land managers and local
communities, gateway communities, to improve the three C's,''
and then by saying ``assist,'' rather than ``require,'' have
realistic expectations about how to identify ways to do that,
the means to the end of improved coordination, cooperation, and
communication?
Alternative dispute resolution, adaptive management, best
practices, anything that goes in the collaboration toolbox that
works--what out there actually works?
Because we're all trying to define the public interest,
long term, and, in the short term, the impacts on gateway
communities can be devastating. So, as we get into the planning
process early, which is a laudable goal, how can we actually
identify the means to the end and provide assistance that
works? And perhaps with money, perhaps there's philanthropic
grants or community foundation grants or other private money
that can be brought to the table to add to a Federal grant that
will allow us to get into these toolbox adaptive management
best practices.
And then, finally, I want to make clear that section
2(d)(7) on cooperative agency status, that's a very important
right for gateway communities. It's articulated well here. I
believe it's provided under NEPA. And, again, my frustration
with this, and where we might need some improvement in the
bill, is that, for example, with the 5- to 10-year debacle--or
the ongoing battle over winter use in Yellowstone, communities
in transition from one economy to another, there is cooperating
agency status, but some communities may have found it's a bit
like riding the tiger once you get it. And what practical
things can we do to bring a long-term economy to gateway
communities in the winter? Because we still don't have a final
winter-use plan, in spite of many good intentions and of almost
a decade of work on it.
So, to sum up, the practical issue of how to get results on
the ground, identifying models that work in best practices. I
can tell you about things that don't work, both an Interior and
an Ag example. The Secretary of Interior pointed me to the
Pinedale Anticline Working Group. The statute requires
cooperation of the BLM official with a seven-member committee
appointed by the Department of the Interior. It's failed. In
fact, five members' terms have expired, and there is no real
way to know when, if ever, five members will be replaced on
that committee. Arguably, Pinedale and Sublette counties are
gateways to the high desert--certainly, the Wind Rivers--but
the impacts aren't being dealt with. What can we do about that,
where cooperation is already required?
Another example with the Ag and the Forest Service, in the
Wyoming range, many people believe that you've got to draw the
line somewhere with respect to national forest use, and that,
in some cases, there's a higher public interest in recreation
tourism than drilling the heck out of the forest. And the
Governor of Wyoming and some Federal officials in Wyoming have
expressed concerns about leasing the Wyoming range, but the
Forest Service continues to lease the Wyoming range. What can
we do about that? What is in the public interest, long term?
And how do we deal with the short-term impacts?
So, finally, to sum up, I agree with the findings and the
purposes of the bill. I'm concerned that requiring cooperation
creates the expectation that you'll get cooperation. Better to
assist gateway communities and Federal land managers with
training and other arrows in the quiver of the toolbox of best
practices that can get practical results on the ground.
Thank you, Senator.
[The prepared statement of Mr. Duerr follows:]
Prepared Statement of Steve Duerr, Former Executive Director,
Jackson Hole Chamber of Commerce, Jackson Hole, WY
Good afternoon. My name is Steve Duerr, and after 7 years I am the
outgoing Executive Director of the Jackson Hole Chamber of Commerce. I
have practiced law in Jackson Hole for about 20 years including about 8
years as General Counsel for the Jackson Hole Ski Corporation. Thank
you for inviting me to provide my perspective about H.R. 585, the
Gateway Communities Cooperation Act, coming from the southern gateway
community to Grand Teton and Yellowstone National Parks.
The livelihoods and prospects for running successful businesses in
our community are intertwined with the power of the place in which we
live--the southern gateway to Grand Teton and Yellowstone National
Parks.
The Jackson Hole Chamber has received much praise for its brand
``Respecting the Power of Place'' and for the collective promise by the
business community to acknowledge a duty of stewardship to preserve
this special place on Earth. This spirit of place, the abundant
wildlife, clean air and water, and vast public lands, are the
foundation of our economy and the essence of our community.
The brand promise was created through a process involving the
mindful work of a diverse cross section of our community, including
local elected officials, national park, national forest and national
refuge managers, conservationists and hard-nosed business owners. We
described the functional benefits for our brand promise, to maintain
our distinctive market niche, and the emotional benefits, including a
sense of stewardship and awe and reverence for the abundance and beauty
of the natural resources in Jackson Hole. This close collaboration in
the Jackson Hole region among commerce and conservation interests,
federal, state and local leaders, has become the norm rather than the
exception. While sometimes not in agreement, we are proud of a track
record of constructive dialogue and cooperation. The Greater
Yellowstone Visitor Center is just one example of collaboration across
management jurisdictions and interests groups, which receives national
praise and interest as a model for other gateway communities. Other
examples are the annual Elk Fest and Boy Scout elk antler sale, Old
West Days events, the Miller House interpretative center, Fall Arts
Festival featuring the Arts for the Parks top 100 exhibits, and
participation and support by community members in the Yellowstone and
Grand Teton National Park Foundations.
In this historic and present context of cooperation and
constructive dialogue, I am concerned that H.R. 585, as drafted, is
somewhat misnamed. It does not appear to be legislation that focuses on
truly enhancing cooperation and partnerships with balanced or practical
approaches, but rather a somewhat confusing, one-size-fits-all mandate
with an emphasis on compelling specific actions by the secretaries of
Agriculture and Interior. I was appointed by the Secretary of Interior
to an at Large Seat on the Pinedale Anticline Working Group (PAWG). By
statute the BLM is required to meet regularly with the 7 stakeholder
representatives and to cooperate with PAWG to try to mitigate impacts
of the gas development in Sublette County, Wyoming. This is an example
where cooperation is mandated by law, and I believe the results of
actual cooperation have been very disappointing.
I want to be clear. The goal of cooperation set forth in the bill
is a good idea. The question is, if the end result produced by genuine
cooperation is good, whether the means to achieve that cooperation are
well articulated in the bill. Surely gateway communities have an
important role to play, and helpful perspectives to contribute, in the
decision-making processes related to federal lands. We must be heard on
federal land use decisions, and we would like our voice to carry
greater weight on many matters. Clearly, our gateway community reaps
the benefits of proximity to two world-class national parks, but we
also must deal with the impacts on local infrastructure of millions of
visitor and spiraling complex growth affecting the New West.
That said, it is worth noting that different federal lands have
different purposes. The purpose of multiple use lands like the Bridger-
Teton National Forest in Wyoming or the Kaniksu National Forest in
Idaho are different from the purpose for which Grand Teton, Fort
Laramie, and Yellowstone were designated as national park units. We
ought to acknowledge that, while federal land managers should seek out
and work with gateway leaders, national parks are not county parks, but
must be managed in the broader national interest rather than the local
interest. At times the politics are hot and the purported national and
claimed local interests lock in a battle over NEPA comments on
potential federal action, or in litigation over decisions. The range of
emotions, the turf at stake and the wisdom of stakeholders and decision
makers vary from issue to issue and from one federal land matter to
another. It simply gets complicated very fast.
To sum up, about all you can say for sure is that those of us who
work in gateway communities have our job to do, and the National Park
Service and other federal land managers have their jobs to do. All of
us need to respect each other's needs and challenges when considering
actions that may impact each other. Mutual respect breeds cooperation,
but by what means can we help assure a process that lends itself to
opportunities for nurturing mutual respect? The end goal of cooperation
is good, but by what means shall we achieve that goal?
H.R. 585: I repeat that the purpose of the bill is laudable--
improving relationships among federal land managers and gateway
communities, enhancing facilities and services in gateway communities
to serve visitors, and improving local land use planning and decision
making. The problem is that the rest of the bill doesn't live up to its
purpose. My hope is that, with changes, it might provide a means to the
laudable end of cooperation.
I want to highlight four basic problems with the bill, which ought
to be addressed: (1) imposing requirements across the board without
acknowledging the diversity of land management agency missions,
including the purpose of individual (especially park) units; (2) the
basic idea that one can mandate cooperation; (3) the challenges park
personnel face because of insufficient funding, and how that can impact
gateway communities; and (4) identifying and funding action toward best
practices in collaborative decision making or adaptive management.
One Size Does Not Fit All: First, I note that in H.R. 585,
responsibilities on the part of gateway communities are not very well
articulated. The findings section of the bill does a reasonably good
job of describing the roles of gateway communities, but does a poor job
of acknowledging the special roles and responsibilities of entities
like the National Park Service. The bill seems to treat all federal
lands, federal management considerations, and gateway community
relationships the same, when diversity not sameness appears to be the
rule. Federal land managed by the Forest Service, which is managed for
multiple use, has different purposes from national park land that has
been set aside for future generations and includes different permitted
uses in different national parks. The experience with PAWG and the BLM
is remarkable in that the politics of gas development may now be the
sole ``multiple use'' for which these federal lands are managed. Yet,
neither the findings nor the remainder of the bill seem to acknowledge
the important distinctions among federal lands or the practical
challenges to cooperation among federal land managers and gateway
communities wrought by changing politics .
Mandating Cooperation: Second, it is difficult to see how you can
mandate cooperation through federal legislation. The fact is, people
from all perspectives on an issue need the ability to engage in
respectful dialogues. Otherwise genuine cooperation is unlikely.
Certainly, there have been plenty of times when federal land managers,
including the National Park Service, have done things local communities
didn't like. I've had those experiences like the gas development boom.
But there have also been many examples of useful dialogue producing
beneficial results, like the examples I provided of how our federal,
state, local, commercial and conservation interests often work
together.
It is easy to see why many of my colleagues in gateway communities
feel frustrated enough with the brush-offs they have received from time
to time from various federal officials, and too often too many federal
managers consider local governments a nuisance. But, as tempting as it
may be to mandate cooperation, this is impractical.
The solution is not a bureaucratic checklist of items that the feds
must do. Such a list inevitably will lead to more frustration and could
simply lead to litigation, rather than better results that build on the
mutual interests of national parks and adjacent communities.
What we need is a mechanism or process that can lead to the
sustainable strengthening of relationships and mutual respect at the
local level. What we need is a careful articulation of the possible
means to ``assist'' in building cooperation rather than a simple
mandate of cooperation. Specific to the language of the bill, consider
the ramifications if the word ``assist'' in inserted for ``require''
and if the bill then went on to explain the means of that assistance.
There will not always be agreement, but there certainly can be much
better procedures that provide more opportunities for constructive
dialogue and reasoned compromise than often is the case today. The fact
is, in the case of the Park Service, there are already plenty of
requirements for engaging with local communities. At times those
produce results we in gateway communities like, and at times they
don't. The solution is not more bureaucratic paperwork requirements,
but a practical and fair process for engagement that works.
For example, federal managers ought to be better trained earlier in
their careers about how to work with local communities. The bill could
be amended, or personnel policies changed, to require specific training
for early or mid-career BLM, Park Service or Forest Service personnel
in how to work with gateway communities. Obviously certain decisions
made by a national park or various federal land managers can have
profound effects on a community--transportation decisions, reductions
in visitor center hours, and others. Federal land managers need to be
aware of that fact, and they need to know that it matters. Certainly
they have their obligations based on the charge they are given, but
they ought to have relevant training so we are reasonably assured they
understand the ramifications of various decisions on their neighbors in
the local communities--this training could lead to more sustainable and
acceptable decision making. Regular, meaningful and mindful
communication should be the rule based on training and a federal
culture sensitive to the necessity for cooperation.
The same is true for gateway communities. Transportation decisions,
zoning determinations and other policies we develop can have enormous
impacts on national parks and other public lands. Just like the
national parks, our local communities have the right to make their own
decisions. But those decisions can be better for all concerned if we
work to understand their impacts on federal lands held in public trust,
and the potential alternatives that might help us reach the same ends.
The bill requires training sessions for elected officials in
gateway communities. The Park Service's management policies already
require in section 2.3.1.6 that park managers ``use the public
involvement process to share information about legal and policy
mandates, the planning process, issues, and proposed management
directions; learn about the values placed by other people and groups on
the same resources and visitor experiences; and build support for
implementing the plan among local interests, visitors, Congress, and
others at the regional and national level.'' It further requires park
managers to work with a broad range of the public, including,
``existing and potential visitors, park neighbors, people with
traditional cultural ties to lands within the park, concessionaires,
cooperating associations, other partners, scientists and scholars, and
other government agencies.'' Who is to receive training, how and when,
the purposes for the training and the desired outcomes of training are
not well described in the bill.
Last spring, Grand Teton National Park invited county and town
officials to a briefing on its plans and priorities. The park provided
an overview of park issues, and explained some of its current and
future plans, including an orientation to the new visitor center site.
The more parks and other federal land managers make efforts like this
to brief, communicate with, and hear from, local leaders, the better
off we'll be. While there are times when briefings like this one are
necessary--and they are always beneficial--regular, frequent
communication by both parties ought to be the rule. Training can help
accomplish that, but mandating how that training should look in every
case is not necessarily the way to go.
In addition, I understand that there are excellent training courses
presently available that can be beneficial both to federal officials
and gateway community leaders. For example, a course offered through
the Fish and Wildlife Service's National Conservation Training Center,
entitled ``Balancing Nature and Commerce in Gateway Communities,'' is
designed to help ``prepare public land managers and gateway community
leaders to develop and promote their own gateway community initiatives.
The course explores significant issues facing gateway communities and
adjacent public lands and the tools that can be used to address those
issues.'' One mechanism for pursuing such an existing training
opportunity would be to create a very modest grant program with
resources for which gateway communities and federal land managers might
jointly apply.
Funding Challenges: This brings me to my third reservation. I am
concerned about layering specific requirements onto the
responsibilities of all federal land managers, regardless of the degree
to which they have the capacity to meet those requirements--
particularly the Park Service. This not only stresses already strained
budgets, but also may create unrealistic expectations among gateway
communities. For example, many national parks do not have on staff the
kinds of land use planners the bill requires to provide technical
assistance to gateway communities. Again, not all parks are alike, so
it makes little sense to treat Grand Teton, Fort Laramie, Gettysburg
and Minuteman Missile park units the same.
In addition, the combination of unfunded mandates and fixed costs
has forced Grand Teton to cut its interpretive staff by nearly \1/3\--
from 17 to 12. This has meant a reduction in the number of public
education programs and in the hours of operation of the Colter Bay
Visitor Center. This kind of reduction in park services is not
beneficial to Jackson Hole or to park visitors. It is not fair to blame
the park, which is having to make extremely hard choices because of
inadequate budgets.
These human resource and financial capacities are relevant
considerations in assessing the ability of park managers and gateway
communities to cooperate, but the bill does not address such matters.
The means by which assistance can be provided toward the end goal of
cooperation should be better articulated.
Best Practices: Fourth, the bill as drafted misses an opportunity
to identify models that genuinely work. Very modest planning grants of
$50,000 to $80,000, with an in-kind match from small gateway
communities, could be enormously beneficial in fostering a process
where local government, businesses, tribal governments, the Park
Service and other key parties to engage in collaborative planning
efforts that meet mutual goals and obligations. Something like this
could be tried on a pilot basis at various land management units and
units of the Park System--national forests, BLM sites, national parks,
national battlefields, national historic sites, etc. However, the money
should come from a separate source, not from already stretched park
budgets. There are few incentives toward working together that work as
well as putting money on the table, even a modest amount.
Regarding the BLM statutory PAWG requirement of dialogue and
cooperation concerning gas development impacts, the BLM has money for
the process and for mitigation. Concerning adaptive management best
practices, one might consider why this required cooperation is not
working--what assistance could be provided to the BLM and community
leaders that builds mutual respect, cooperation and success on the
ground? In my opinion, requiring cooperation in this instance is not
working.
Conclusion: In summary, I want to leave the subcommittee with the
following thoughts:
First, resist the temptation to mandate cooperation. There are
examples where such mandates are failing. We ought to learn why and
what assistance could be provided to aid cooperation. Consider
inserting ``assist'' for ``require'' and then defining the means to the
end of cooperation, perhaps, defining best practices and providing
funding opportunities for their implementation.
Second, respect the differences between the missions of various
federal land management agencies, including units within the
jurisdiction of those agencies. There is no one-size-fits-all approach
to dealing with the BLM, national parks and national forests, just as
there is no single solution for every gateway community.
Senator Craig. Steve, thank you very much.
Let's turn to Bob Warren, chairman, National Alliance of
Gateway Communities, Redding, CA.
Bob, welcome to the committee.
STATEMENT OF BOB WARREN, CHAIRMAN, NATIONAL ALLIANCE OF GATEWAY
COMMUNITIES, REDDING, CA
Mr. Warren. Good afternoon, and thank you, Mr. Chairman and
other subcommittee members, for the opportunity to testify
today. And I certainly appreciate the bipartisan support that
Senator Wyden was offering, as well as having Congressman
George Radanovich show up and speak on behalf of the bill.
I'm really here today as the chairman of the National
Alliance of Gateway Communities, but I also represent the city
of Redding, CA, which I think is the perfect example of a
gateway community. Within 10 miles are Forest Service lands,
BLM lands, and a national park unit. The NAGC is the only
national organization solely dedicated to representing the
interests of gateway communities. In California and the West,
many communities are transitioning to more diverse economies,
as we've talked about in the past. We know that in the future,
visitors to public lands will play an increasingly more
important role in the economies of our gateway communities.
Those of us in the West know that public lands are often
the magnets that really draw people to our communities, and
that's both domestic and international visitors. Many of the
supervisors and superintendents and managers of public lands
are keenly aware of the importance of working with gateway
communities. I know that, in my own area, many of them strive
to work daily with our community leaders. Unfortunately, this
is not always the case for some gateway communities, and not
always the case always, all the time. There are too many
examples of these relationships which are inconsistent and
unreliable, and often too dependent on personalities.
While want to--what we want to do with the enacting of this
legislation is to take a major step toward--I hate the word
``institutionalize,'' but kind of institutionalize those
relationships, making them so that you, as Congress, have put
out the word that it's an important factor that you want
considered. Many of the management plans for significant public
lands units devote hundreds of pages to natural resource
preservation, while devoting just a paragraph or two to the
people who live in the area adjacent to the unit. For example,
although economic and social impacts are supposed to be
considered in national forest management plans, the plan for
one national forest in Arizona has one paragraph that addresses
those issues, with more than 100 pages addressing various
habitat scenarios. Of course, we don't object to that sort of
overview of the environment, but would want more effort made
toward communities.
In the mid-1990's, five communities that are gateways to
Yellowstone National Park decided to form the Yellowstone
Gateway Alliance to speak with one voice on issues of common
concern for all. The superintendent of the park at that time
flatly refused to talk with the gateways as a group. And I
might add that the community of Cody and the executive director
of the Cody Chamber of Commerce, Gene Bryan, said, ``We believe
the gateways bill gives us some level of assurance that
gateways like Cody will be involved in the critical management
issues, multiyear plans, plan revisions, and specific issues,
such as winter use. We don't expect all our wants and desires
to be listened to, but we are hoping that this will help out.''
And we'd also like you to understand that the current
superintendent for Yellowstone, Suzanne Lewis, is getting--is
giving great cooperation and dialog to the communities around
Yellowstone. And Cody has said that they love her, and love
working with her.
I'd like to mention, H.R. 585 does not compel any
superintendent to talk to such coalitions, but it would clearly
declare that the intent of Congress is to support much greater
cooperation, coordination, and communication. While communities
are making significant planning changes, they are required to
comply with numerous Federal environmental mandates. This makes
for a one-way street, as the capability of those small rural
communities to comment meaningfully on the new plans and
policies of adjacent Federal lands is often limited. All it
really does it give H.R. 585--and gives the gateway communities
a seat at the table. The bill does not give a gateway community
a veto over agency programs, actions, or policies, nor does it
give a gateway preferential treatment. The bill would give
local public lands managers a greater understanding of the
needs and prospects of their adjacent communities.
In closing, I don't want you to think that we, in gateway
communities, are not appreciative of the effort that's being
made to date. We just want a legal standing in the Federal
decisionmaking process. Often, the Federal lands are the
foundation of a community's culture, commerce, and heritage,
and the gateway communities are essential to providing for
local recreational use and visitors to those lands. Public-
lands policies are too often politicized and charged with
emotions. The policies and emotions are dramatically played out
in our communities. The wrenching drama is for naught if our
communities can't have a meaningful stake in that process.
Often this process is affected by the sparse rural population
representation in the West, pitted against well-meaning, urban
political agendas driven by well-financed and well-staffed
special-interest groups. This leads to many gateways
communities feeling as we are being treated like children when
we are told to eat our vegetables, it's what's best for us.
Leaders in gateway communities are faced with the daily tension
of attempting to balance commerce and conservation, of
preserving enduring wildness while enhancing economic well-
being. This tension is, of course, by choice, as those of us
who live in gateway communities most often would choose to be
nowhere else.
We feel that this important bill will help bridge the gap
between today and tomorrow, while striving to preserve all that
is natural in our communities.
And, finally, I'd like to say that the bill has the support
of the National Association of County Organizations, NACO; the
Travel Industry Association of America; the National Tour
Association; the American Bus Association; and the American
Association of RV Parks and Campgrounds.
Mr. Chairman, we hope that you can support this bill for
our communities. Its enactment will open a new day for
gateways.
Thank you.
[The prepared statement of Mr. Warren follows:]
Prepared Statement of Bob Warren, Chairman, National Alliance of
Gateway Communities, and Tourism Development Manager, City of Redding,
CA
Thank you Chairman Craig, and other subcommittee members for the
opportunity to testify on behalf of H.R. 585. I am here as Chairman of
the National Alliance of Gateway Communities (NAGC) and I am also
representing the City of Redding, California, as the Tourism
Development Manager. Redding is the perfect example of a gateway
community. Within a ten-mile radius, there are the boundaries of a
National Park Service Unit, Bureau of Land Management lands, and a
National Forest. The City benefits from this close proximity to Federal
lands, attracting significant tourism dollars, and, of course, the
lifestyle blessings of actual proximity to beautiful natural
attractions. Visitors to our Federal lands benefit also from the first
class tourism services available in Redding, which has hundreds of
private tourism service businesses. The NAGC represents the interests
of those communities that serve as gateways for millions of visitors to
our magnificent Federal public. The NAGC was actually formed with the
encouragement of the major Federal land management agencies, which felt
there was a need for an organization to help small gateway communities
become more skilled at interacting with Federal agencies. This
organization is the only national organization solely dedicated to
representing the interests of gateway communities.
I am pleased to note that the NAGC is joined in its support of H.R.
585 by the National Association of Counties, the National Association
of RV Parks & Campgrounds, the National Bus Association, the National
Tour Association and the Travel Industry Association of America.
On behalf of the NAGC and gateway communities everywhere, we thank
you, Mr. Chairman, for considering this historic bill in this hearing.
To the best of our knowledge, it is the first bill ever to focus
exclusively on the needs and concerns of gateway communities.
Gateway communities, by their very nature, are close to public
lands. They have a symbiotic relationship that creates an arrangement
where the public land units need the communities for their services,
while the communities need the public lands as attractions. In
California and in the West, and in many other parts of the nation,
communities are transitioning to more diversified economies, less based
on resource extraction. We know that, in the future, visitors to public
lands will play an increasingly more important role in the economies of
our gateway communities. In rural California, every $68,000 spent by
travelers creates one new job. Also, many of those visiting public
lands are international visitors who often make their visit to America
a visit to rural America. Germans alone account for hundreds of
thousands of visits to public lands in California annually. One
national park in Northern California surveyed visitors during a recent
one-month period, and eleven percent of all visitors were German.
Obviously, the dollars spent by these foreign visitors and others are
important to both the economies of gateway communities as well as to
the national balance of trade. Those of us in the West also know that
public lands will continue to be the ``magnets'' that draw both
domestic visitors and internationals back to our rural communities.
the need: why h.r. 585 is important
Many of the supervisors, superintendents, and managers of public
land management units are keenly aware of the importance of working
with their gateway communities. I know in my area, many of them make
daily efforts to interact with community leaders. Unfortunately, this
is not always the case. There are too many cases where relationships
are inconsistent and unreliable and are often too dependent on the
personalities involved. What we want to do by enacting this legislation
is to take a major step towards institutionalizing those relationships
by putting them on a firmer statutory base.
There are also examples of Federal land managers showing little
concern for the economics of gateway communities and purposefully
attempting to affect development outside their management units. In one
instance in the Northwest, a new national park superintendent was
interviewed for an article in a major newspaper in which he indicated
opposition to a planned destination resort more than 11 miles from the
park that he managed. Unfortunately, he had neglected to communicate
with the developer who had, for the previous nine years, worked in
concert with the park superintendent's predecessor and staff on the
planning of this resort. H.R. 585 would certainly not have affected his
ability to speak out on this issue, but he would have at least known
that he also would need to develop a relationship with the adjacent
communities, so when issues related to important park management
decisions came up, the community would be part of his thought process.
Many of the management plans for significant public land devote
hundreds of pages to natural resource preservation, while devoting just
a paragraph or two to the people who live in or adjacent to that unit.
Their frustration is exacerbated when their communities do not have a
``seat at the table''.
For example, although economic and social impacts are supposed to
be considered in national forest management plans, the plan for the
Kaibab National Forest in Arizona has about one paragraph that
addresses gateway issues with more than 100 pages addressing various
habitat scenarios. Careful consideration is given to the goshawk, but
little is given to the gateway communities and the people who live
there. Now we want to be clear. We do not object to thorough
consideration of environmental and wildlife issues; indeed we strongly
support such examination. But surely the interests and concerns of
gateways and the families and businesses that make their homes there
should also get serious consideration.
In the mid-1990s, the five communities that are gateways to
Yellowstone National Park decided to form the Yellowstone Gateway
Alliance to speak with one voice on issues of common concern to all of
them. The superintendent of the park at that time flatly refused to
talk with the gateways as a group, although he was more than willing to
meet with other interest group coalitions. Conversely, today the
community of Cody, Wyoming, the east entrance to Yellowstone National
Park, is enjoying an excellent rapport with the current park
superintendent, Suzanne Lewis and her staff Cody has had input in park
road maintenance affecting the east entrance and their tourism economy.
Working together they now describe road work as ``road improvements''
rather than ``construction'' and refer to ``hours of operation'' rather
than ``closures.''
For more than 50 years the small tourism community of Cody has
realized the importance of a respectful and working relationship with
the Yellowstone National Park administration and community leaders. The
Cody National Park Committee meets at least three times a year with
Yellowstone officials to make certain communication lines remain open
and issues get identified and dealt with before they become problems.
Although the community realizes it is extremely fortunate to have
exemplary working relationships currently with its Federal partners, it
also understands that has not always been the case, and that those
relationships can and often do change with new administrations. For
this reason, Gene Bryan, executive director of the Cody Country Chamber
of Commerce, declares that, ``We believe the Gateways bill gives us
some level of assurance that gateways like Cody will be involved in
critical management issues--multi-year plans, plan revisions, specific
issues (winter use, for example). We don't expect all our `wants' and
`desires' to be met, but we do appreciate being listened to.''
Another community adjacent to Yellowstone experienced similar
challenges. West Yellowstone, Montana, a small gateway community of
about 1100 people literally situated at the west gate of Yellowstone
National Park and bounded on all other sides by Forest Services lands,
provides lodging and ancillary needs for over 2 million visitors a
year, and of course is heavily impacted by decisions made at the Park
and with Forest Service managers. West Yellowstone should indeed be a
partner with the Park, providing infrastructure and facilities to
handle their visitors and contributing significantly to the visitor
experience. In the late 1990's the community attempted to meet the
challenge and heavily bonded for municipal services. But, as a result
of changes precipitated by the 2000 Winter Use Plan, the total number
of winter recreational visitors from the west gate has dropped from
70,371 visitors in 1970-71 to 28,242 in 2005-06. This has been
devastating, and has caused 10 local businesses to close in the winter.
The gateway communities around Yellowstone National Park count on
winter access into Yellowstone as part of their economic viability. The
2000 winter use plan for Yellowstone called for a ban on snowmobile
usage in the park. Despite repeated attempts by local gateway towns to
obtain cooperating agency status during the development of that winter
use plan, they were never given the opportunity to be ``at the table''
with the neighboring states and adjacent counties during this process.
Another example of ``challenging relations'' is Yosemite National
Park. Attendance at Yosemite National Park was growing quite steadily
prior to the flood of 1997. A General Management Plan had been put into
place to address the anticipated future of resource protection in light
of these trends. Implementation of the 1980 General Management Plan was
on hold during the years leading up to 1997 due to lack of enough funds
to support both day to day operations and plan implementation. The
emergency funds awarded by Congress to Yosemite National Park
officials, posed an opportunity too good to pass up. Several
implementation plans were ``tweaked'' and the Yosemite Valley Plan
emerged to support the 1980 General Management Plan principles. The
foundational intent of the planning process has become well know to
most Californians, i.e., to eliminate cars and limit access to bus
transportation. This has left a significant portion of the public
searching for a more convenient alternative for vacations and getaways.
Visitors Bureaus from around Yosemite are questioned at nearly every
travel show and conference they attend about the ability to drive into
the park. Since 1997, visitation to Yosemite remains relatively flat,
compared to the 1997 figures. A variety of park management decisions
have lead to the public voting on these decisions by choosing not to
visit. The Park management's concern with stagnant visitation seems to
be low on the priority list and may give some hint to the need for
better cooperation between Yosemite and the gateway communities.
Gateway community leaders around Yosemite often feel the Park's
quarterly ``Gateway Partners'' meetings are in reality just ``show and
tell'' sessions, with little input being taken from the gateways. Those
in the communities who call them such, are characterized as
``uncooperative'' or ``radical gatewayers'' who will never be
satisfied.
When communities are making significant planning changes,
especially involving land use issues, they are required to comply with
a host of Federal environmental mandates. Many agencies often comment
on their proposed planning efforts. This makes for a one-way street, as
the communities have far less opportunity to comment on proposed
changes on adjacent Federal lands. Although H.R. 585 does provide
gateway communities a ``seat at the table,'' the bill does not give a
gateway community a veto over agency programs, actions, or policies.
The bill would promote cooperation and coordination and give local
Federal land managers a greater understanding of the needs and
perspectives of their adjacent communities. I might add that it will
also give local leaders a greater understanding of the needs and
perspectives of their local Federal land managers.
defining gateways
It is difficult to use specific geographic, demographic, social or
economic criteria to define and identify all gateway communities.
Previous efforts to define gateways as those communities within so many
miles of a particular Federal land site, or with a maximum population
base, or as generating so much tax revenue from visitors to the Federal
land site inevitably fall short of encompassing the full range of
gateways. There are always notable exceptions to any such formula.
For these reasons, we support the approach taken in H.R. 585. After
requiring that gateway communities be incorporated or recognized in a
``county or regional land use plan or within tribal jurisdictional
boundaries.'' The decision as to whether a community is a gateway is
delegated to ``the relevant Secretary (or the head of the tourism
office for the State)'' who are required to determine whether the
community ``is significantly affected economically, socially, or
environmentally by planning and management decisions regarding Federal
lands.''
We believe the Secretaries of Interior and Agriculture and the
State Tourism Offices are in the best position to determine the degree
to which the community is affected by its Federal land neighbor.
what this bill will not do
Now let me try and clarify some possible misimpression about this
Gateways Bill.
First, we do not believe it is an invitation to ``bash the
agencies.'' Many local Federal land managers understand the importance
of good relations with their gateway communities and make proactive
attempts to cultivate those good relations. They are to be commended.
At the national level, the Federal land agencies recently have
increasingly recognized the importance of gateways.
Second, H.R. 585 does not gives gateway communities any type of
veto over policies, decisions, programs or activities of any Federal
land agency. It does not give any gateways preference or priority over
any other stakeholder. That has never been the intent of the bill.
Third, we do not believe that H.R. 585 will encourage litigation by
gateways communities over agency plans or decisions. For several
reasons, including a lack of financial resources, it is extremely rare
for gateway communities to initiate litigation challenging the Federal
agencies. To the contrary, we believe that the closer communication and
dialogue and better partnerships that will be fostered by H.R. 585 will
make future litigation much less likely.
Fourth, we do not think that H.R. 585 is, in any way, contrary to
the environmental values and goals of-our nation. No one loves the
natural beauty and wildlife of our magnificent national parks, forests
and other Federal public lands more than those who have chosen to spend
their lives in the communities next door to them.
Fifth, we do not believe that H.R. 585 elevates local interests
over the national interests. We recognize that we are talking about
national parks and national forests, and they must always be responsive
first and foremost to national values and priorities. Nothing in this
bill would change that.
Sixth, H.R. 585 does not place any additional mandates on gateway
communities. It will be the voluntary choice of the gateway as to
whether it seeks to utilize any of the provisions of the bill.
what this bill will do
H.R. 585 is a balanced, reasonable response to a widespread
concern. As we have noted, in many instances, relationships between
Federal land agencies and their gateway communities are harmonious and
productive. Many Federal land managers and local leaders do indeed
``get it'' and work harmoniously together.
They understand that the community and the Federal land are
inevitably interconnected. They understand that it is not a ``zero sum
game,'' but that the health and vitality of one has a direct impact on
the other. They understand the imperative of being ``good neighbors''
with their gateways. They understand that the Federal lands are poorly
served by gateway communities that are weak and resentful,
But this is not always the case. In the last decade, in 1998 and in
2002, there have been two major State-Federal Conferences devoted to
gateway communities. At both conferences, two common refrains were that
the agencies too often ignored the interests of gateways without reason
and that many gateways have insufficient staff and expertise to
participate in a truly meaningful way in agency policy-making
processes. At present, it is up to each Federal land manager to decide
what relationships he or she wants to have with gateway communities.
There has never been a statutory declaration that gateway communities
are critical to the mission of the agencies and that cooperation and
coordination should be fostered.
The first and greatest value of H.R. 585, therefore, is to declare
as a matter of national policy that Federal land managers are required
to communicate, coordinate and cooperate with gateway communities in
order to----
(1) improve the relationships among Federal land managers,
elected officials and residents of gateway communities;
(2) enhance the facilities and services in gateway
communities available to visitors to Federal lands when
compatible with the management of these lands, including the
availability of historical and cultural resources; and
(3) result in better local land use planning in gateway
communities and decisions by the relevant Secretary.
The bill thus provides historic recognition by Congress that
gateway communities are integral to the mission of the public lands,
the first points of contact for visitors and the providers of essential
services to both visitors and the public lands.
In the closing days of the Clinton Administration, T. Destry
Jarvis, then Senior Advisor to the Assistant Secretary of Interior for
Fish and Wildlife and Parks, wrote: ``. . . no land-use decision around
a national park is exclusively local or national, but always has
implications on both. The National Park Service should realize its
affirmative responsibility to actively participate in local land-use
decisions, and should similarly be aware of the effects of its
decisions on its neighbors, allowing them to be involved in the process
of arriving at those decisions.'' H.R. 585 would be an historic step
towards that goal.
Too many times, small gateway communities--towns and counties--are
expected to interpret and comment on complex agency draft planning
documents without staff and expertise to interpret and evaluate the
potential ramifications of those plans for the communities.
In this regard, let me enter in a statement from an NAGC director.
This statement is from Karen Alvey, former mayor of Kanab, Utah, who
over the years, has tried hard to ensure that the Escalante National
Monument is developed in accord with both national and local values and
goals.
After much thought, I have decided that the whole process of
planning on public lands must be done with the communities at
the table, and early on. Most of the public officials have
other jobs, cannot afford full time staff to attend and gather
information, and lack the knowledge to make good decisions on
management issues. If it is mandated to invite the community's
leaders in early so that they can become educated, then better
decisions will be made. Currently, planning seems to go on
forever, then decisions are made and announced to the
communities.
H.R. 4622 would enable gateways to be much more meaningful
participants in those agency planning processes by:
(1) receiving early, non-technical summaries of such plans,
their assumptions and objectives and the anticipated impact on
gateway communities;
(2) receiving the earliest practicable public notice of
proposed decisions that may have a significant impact on
gateway communities;
(3) receiving training from the agencies about their planning
processes and how they can best participate;
(4) receiving technical assistance from the agency, including
detailed agency staff to work with the gateway to understand
and respond better to proposed agency plans;
(5) receiving, on request, a review from the agency of its
land use, management or transportation plans likely to affect
the community;
(6) entering into cooperative agreements to coordinate local
land use plans with those of the Federal land agency, other
Federal agencies, State governments and tribal governments;
What these provisions would do is to institutionalize gateway
community involvement with their Federal land neighbors. It would
systematize and set parameters on planning processes that have until
now been inconsistent and unclear from the perspective of local
communities. Plans do matter. The Federal land agencies are guided (and
limited) in future years by the assumptions and conclusions of their
plans. They will be better plans--more effective and more accepted--
with greater community involvement.
It is also worthy of special note that H.R. 585 will require
interagency coordination and consolidation when the plans and planning
processes of two or more Federal land agencies are anticipated to have
an impact on a gateway community. This will go a long way towards
reducing overlap, redundancy and confusion for gateways near multiple
Federal lands with multiple plans.
summary and conclusion
In closing, I don't think we can any longer deny our gateway
communities legal standing in the Federal decision-making process.
Often, Federal lands are the foundation of a community's culture,
commerce, and heritage. Decisions affected those lands are often
politicized and charged with emotion, as shown by the proliferation of
litigation by outside groups (although typically not by gateways). The
politics and emotions are dramatically played out in our communities.
This wrenching drama is for naught, if our communities cannot have a
meaningful stake in the process. Often, this process is affected by the
sparse rural population political representation in the West, pitted
against well meaning, urban political agendas driven by well-financed
and staffed special interest groups. This leads to many gateway
communities feeling as if they are being treated like children, when
told to ``eat your vegetables, it's what's best for you''. H.R. 585
will modify the process and level the playing field by directly and
appropriately including gateway communities.
Leaders in gateway communities are faced with the daily tension of
attempting to balance commerce and conservation, of preserving enduring
wildness while enhancing economic well-being. Our communities will
survive only if we are constantly ensuring that the needs of nature are
met while people are allowed to make a living. This tension is of
course by choice, as those of us who live in rural, gateway locations
most often would choose to be nowhere else. We feel that this important
bill will help bridge the gap between today and tomorrow, while
striving to preserve all that is natural, as well as maintaining the
character of our communities. A consistent Federal process of inclusion
of the leaders of gateway communities would improve the process, the
politics, and the outcome. All we ask is some say in our future.
If gateway communities are to continue to be healthy partners, it
is imperative that there be greater collaboration in the planning
process. Local input should be considered, so as not to make oversights
in judgments and decisions that could be avoided with true partnership
relationships. At times decisions are made by Federal land managers
without much consideration of the impact on the communities, the
process of fostering healthy relationships or the local economics. The
communities are left to pick up the pieces and try and fix what becomes
broken in the process. Such problems could have been averted with
collaboration at the appropriate time.
We believe it was never the intent of Congress or the agencies to
have the personalities of supervisors, superintendents, or other land
managers determine the level of cooperation between gateway communities
and the federal lands units. H.R. 585 would not compel any manager to
talk to coalitions of gateway communities or dictate the terms of
partnerships, but it would clearly declare that the intent of Congress
is to support much greater cooperation, coordination and communication
between gateway communities and Federal land managers.
H.R. 585 would result in closer, more productive cooperative
relationships between gateways and Federal land managers, benefiting
both the communities and the federal lands, responding to both national
and local values. H.R. 585 would enhance the capability of gateways to
participate more effectively and more meaningfully in agency planning
processes for the betterment of all.
It should become law. Mr. Chairman, the passage of this bill, H.R.
585, is landmark legislation. Its enactment will open a new day for
gateway communities throughout the nation.
Thank you for your consideration. We look forward to working with
you to ensure enactment of this vital legislation.
Senator Craig. Bob, thank you very much.
I'm going to turn to my colleague Senator Thomas for any
questions you may have of this panel.
Senator Thomas. Well, thank you, Mr. Chairman.
I guess, Mr. Warren, you indicated that there's no
relationship now. I'm from Cody, WY. I understand that the
relationship is there and I don't quite understand what
difference this is going to make.
Mr. Warren. Well, that's what I'm saying. Right now, Cody
is saying that they have a great relationship with Suzanne
Lewis, but they're saying that that relationship, 5 years ago,
wasn't quite as good. Also, West Yellowstone indicated that, 5
years ago, they had some fairly serious issues and now they
think those issues are being resolved.
Senator Thomas. But under NEPA and these things, we already
have a law that you have to communicate with these communities.
Mr. Warren. Well, it's not just on the NEPA requirements,
it's just basic daily communication and working with
communities.
Senator Thomas. I just am concerned that it's something
that we already have, and that we're just adding more
communications to it. I understand the purpose. I couldn't
agree with you more. I think we already have that, however, and
we could do it better, but I don't think, frankly, that this is
going to make a great deal of difference.
What would you do, Mr. Duerr, to change it?
Mr. Duerr. As I said, Senator, I support the findings----
Senator Thomas. I'm talking about the bill.
Mr. Duerr [continuing]. And the purposes. But the means to
the end of cooperation is elusive, and it has to do with
putting some money on the table as an incentive to both the
gateway communities and the Federal land managers to deal with
short-term impacts in the long-term public interests. They vary
from Federal management district to another community to
another, and it's complicated. But money would help.
Senator Thomas. Money? Oh, well.
Mr. Warren. Senator Thomas, I would like to add that
gateway communities all over the West and the country support
this bill, so they obviously feel that there is a need for help
in this area. And that's what we're asking for, is that help.
Senator Thomas. Well, why wouldn't they support it? I mean,
it sounds great. I'm just asking you for the details of what it
does. I'm not persuaded that it changes things.
Senator Craig. Bob, I know you've listened closely to the
testimony of others. Why should we expend the money this bill
authorizes to further empower these communities at the cost of
reducing on-the-ground management of some of our Federal units?
We're strapped for dollars now. We're searching for dollars as
it relates to on-the-ground activities. This bill--we've
actually not seen a cost factor related to it, because not all
of the communities have been defined, or at least enumerated as
to who would qualify, specifically. I mean, how do we deal with
that justification, in your mind?
Mr. Warren. Well, as you heard from the several agencies
that were here today, they had those concerns and, of course,
that's something that's definitely worth talking about, and
there may be some way of compromising and satisfying their
needs. There may be existing training that's ongoing right now
that gateway communities can be involved in. And so, I think
that there is room for some adjustment in the Senate version of
what this bill would be.
So, I'm not sure that it absolutely has to be mandated in
the way it's written in the House bill, but I think the intent
of showing that there is a desire to help communities come up
to speed on some of these issues is what the important issue is
here.
Senator Craig. OK. Some believe that H.R. 585 could provide
gateway communities some special legal status that would allow
these communities to contest Federal management plans. If we
are going to give the gateway communities a special status, why
shouldn't the Federal land management--or managers get some
additional input on how local zoning and development decisions
are made?
Mr. Warren. Well, already the Federal Government has a
significant amount of say, because virtually everything that
happens in communities and counties throughout our country goes
through some sort of environmental review process. So, that is
already occurring. And whether, you know, Congress feels
compelled to transfer that down to the local level, that would
certainly be up to Congress, but it's occurring already.
Senator Craig. How would the courts deal with multiple
gateway communities who disagree on a National Park Service or
a Forest Service plan? Should the preference go to the largest
town? Aren't those the kind of disputes best worked out
informally?
Mr. Warren. I think that there are things that will always
be worked out informally. And obviously there is a process; we
certainly have our courts to review things like that. But if
you look at the record of gateway communities suing Federal
lands management agencies--and it's pretty insignificant, it
almost never happens--and I can't see that this would change
that in any way, because, obviously, you know, communities are
strapped for dollars, and they're not going to be making the
effort to be looking for ways to sue Federal lands management
agencies.
Senator Craig. OK.
Steve, I tend to agree with you that you can't legislate
good manners or neighborly behavior. You can prescribe it, and
would hope that it would happen. How do we get our Federal
managers to be more responsive to communities? You've obviously
served in that capacity as it relates to a major gateway
community to a major park.
Mr. Duerr. Well, Senator, I think it takes a long-term
commitment by the community and the Federal manager and staff
to cooperate and work together, do the little things first and
see if we can't get the big things going in the right direction
when it gets critical to work on those. But the issue of the
long-term public interests and the short-term impacts on
gateway communities at some level, like Yellowstone and
snowmobiles, like Pinedale and drilling in the desert, I
believe requires a commitment of resources, of money, to get on
the ground with adaptive management strategies or alternative
dispute resolution, so that in the short term you can actually
deal with the impacts before it's too late. And I support this
bill. I hope that we can find funding to deal with the short-
term impacts outside of litigation.
Mr. Warren. Senator, I might add that the original House
bill actually had $10 million in it for this very purpose. But,
as we know in the current economy, that's not likely to happen.
Senator Craig. Well, coming from a large public-lands State
that is obviously adjacent to--we can't lay claim, although we
try, at times, to Yellowstone. We have to leave that to the----
Senator Thomas. Please don't.
[Laughter.]
Senator Craig [continuing]. We have to leave that to the
Senator from Wyoming. We have, by definition, a lot of gateway
communities as it relates to large public-land tracts and
resources, and they go through all kinds of economic ups and
downs, depending on policy changes of those Federal agencies
and, frankly, their attitudes, on occasion. I have obvious
sensitivity toward the legislation. I'm trying to figure out a
way that we get there, and get there in a way that causes these
better relationships. So, I'm certainly not unwilling to force
them, if it's possible. But, at the same time, I'm always
frustrated by agencies who feel their mandate is supreme and
overpowering to anything around them. And agency managers
sometimes find themselves in those situations. And usually
that's when Senator Thomas and I do flying tackles in efforts
to try to change attitudes.
But, anyway, we thank you, gentlemen, very much for your
testimony. We'll see how things move as it relates to these
pieces of legislation, and we'll be working with you certainly,
with the Alliance, as it relates to any refinement in this
legislation before it moves forward.
Gentlemen, thank you.
The subcommittee will stand adjourned.
[Whereupon, at 3:40 p.m., the hearing was adjourned.]
APPENDIX
Responses to Additional Questions
----------
Responses of Mike Johanns to Questions From Senator Craig
s. 906--cantwell's fire fighters safety
Question 1. If we passed this bill (S. 906), is it even possible to
track the funds expended on each individual related to fire training?
And so, can you tell me what that would cost?
Answer. If S. 906 were passed as written, it would not be possible
with any assurance to tell you the cost of training expended on each
individual unless there were extensive changes to the current financial
system. The Forest Service's current financial system and database
structure are not designed to track this detail of information and to
do so would require significant modification.
A Firefighter Safety Budget Line Item would force the tracking of
expenditures into the financial system, which would add administrative
complexity. Dollars spent on an activity should not be considered a
primary measure of success or effectiveness; instead oversight should
focus on effective policy and integration of safety awareness and
practices across all firefighter training and activities.
Question 2. On a percentage basis, how much funding do you believe
S. 906 would divert from on the ground fire-fighting?
Answer. It is difficult to estimate the cost of this bill or how
much funding would divert from on the ground fire-fighting. However,
implementation would carry significant costs to adjust the financial
system and database as well as to collect data.
Question 3. How does that amount of funding compare to the national
assessments that the Washington ice charges fire preparedness and fire
suppressions?
Answer. Implementing S. 906 as written would drive national
assessments of the fire accounts higher. While it is difficult to
estimate the specific costs associated with S. 906, the cost of
implementation could add substantially to those assessments currently
made.
h.r. 585--gateway's communities
Question 1. Some believe that H.R. 585 could provide gateway
communities some special legal status that would allow these
communities to contest federal management plans. Mr. Warren's oral
testimony indicated that he didn't believe that this bill gave special
legal status to the gateway communities, but then; in his conclusion,
he said ``all we are asking for is legal standing. ``
Could you get your Office of General Counsel to provide us an
analysis of H.R. 585 and the cooperating agency rules and policies to
help inform us whether or not providing such standing to a gateway
community will afford these communities special standing in the courts?
Answer. H.R. 585 would impose a number of--mandatory procedural
steps that Federal land managers must take specifically with respect to
gateway communities, and therefore could create several new legal
claims that. could be asserted by communities dissatisfied with a
management plan or project. Under existing law and regulations, gateway
communities already have the opportunity to comment as part of the
National Environmental Policy Act (NEPA) analysis for management plans
and projects. The CEQ regulations define a cooperating agency to mean
``any Federal agency other than a lead agency which has jurisdiction by
law or special expertise with respect to any environmental impact
involved in a proposal . . .'' 40 CFR 1508.5. ``A State or local agency
of similar qualifications . . . may by agreement with the lead agency
become a cooperating agency.'' Id. The CEQ regulations also describe
the responsibilities of the lead agency and cooperating agencies. 40
CFR 1501.6.
Section 2(d)(7) would remove the agency's discretion by requiring a
designation of any gateway community upon the request of that
community. A gateway community that is dissatisfied with a management
plan or project for which it has been designated as a cooperating
agency might be encouraged to challenge the plan or project believing
that its designation confers the standing necessary to do so.
Cooperating agency status does not by itself confer standing to
challenge a NEPA document. Similarly, designation as a cooperating
agency pursuant section 2(d)(7) of the bill would not, by itself,
confer standing.
A State or local entity with standing that is selected as a
cooperating agency may be able to sue for procedural violations
associated with its status as a cooperating agency if it is
dissatisfied with the process. See, e.g., Int'l Snowmobile Mfrs. Ass'n
v. Norton, 340 F. Supp. 2d 1249,1261-62 (D. Wyo. 2004) (finding NPS did
not adequately consult with cooperating agency States before changing
preferred alternative). Such a challenge could be brought under the
Administrative Procedure Act (APA) when the agency makes its final
decision as a result of that process, and the cooperating agency can
establish that it is adversely affected by the final agency decision.
H.R. 585 could greatly increase the number of management actions
for which gateway communities are designated as cooperating agencies
and may also give gateway communities that can establish standing
another claim to file if they believe they are improperly denied
cooperator status. H.R. 585 also includes a number of other mandatory
duties that could give rise to legal claims if a party is able to
establish standing. Section 2(d) provides that ``[a]t the earliest
possible time, the relevant Secretary shall solicit the involvement of
. . . gateway communities,'' ``shall provide . . . at the earliest
possible time but not later than the scoping process'' a list of
specific types of information, ``shall provide training sessions,''
``shall make available personnel'' upon request, and ``shall
consolidate and coordinate'' planning processes with those of other
Federal agencies in order to make it easier for gateway communities to
participate.
Each of these mandatory procedural requirements may provide an
opportunity for a dissatisfied gateway community (or entity that
believes it is a gateway community) to challenge a land management
action as ``contrary to law'' under the MA. While the bill may not
confer any special ``standing'' in an Article III sense, it does appear
to greatly multiply the number of potential legal claims that might be
asserted in any APA lawsuit by a dissatisfied gateway community with
standing.
To address this issue, the Administration has proposed an amendment
to H.R. 585 ensure that H.R. 585 does not result in the creation of
enforceable claims by gateway communities. This amendment is being
submitted under separate cover by the Department of the Interior.
Question 2. H.R. 585 currently calls for the Secretaries or a State
Director of Tourism to designate the Gateway Communities.
Could you provide a legal analysis that examines the
constitutionality of a State Direct of Tourism making such a decision
for the Department of the Interior?
Answer. Section 2(c) of H.R. 585 defines ``gateway community'' to
include only those that ``the relevant Secretary (or the head of the
tourism office for the State)'' determines is significantly affected by
decisions at issue. The parenthetical inclusion of the head of the
State tourism office presents potential Constitutional problems under
the principles of dual sovereignty, the separation of powers, the
Appointments Clause, and the Supremacy Clause.
In Printz v. United States, 521 U.S. 898 (1997), the Supreme Court
held unconstitutional a portion of the Brady Handgun Violence
Prevention Act that required State law enforcement officers to execute
its background check requirements. The Court relied on two
Constitutional principles for this portion of its holding: dual
sovereignty and the separation of powers.
First, the Court discussed the division of power between State and
Federal governments, noting that they exercise concurrent authority,
``each protected from incursion by the other.'' Id. at 920. The Court
found that the Brady Act violated this principle by ``conscripting
state officers'' into Federal service--effectively a ``Federal
commandeering of state government[]'' that violated State sovereignty.
Id. at 925.
Second, the Court also discussed the division of power between the
branches of the Federal government, and the ``separation and
equilibration'' of their powers. Id. at 922. The Constitution provides
that the President, either himself or through his appointees, is the
one who ``shall take Care that the Laws be faithfully executed.'' Id.,
quoting U.S. Const. art. II, 3. The Court found that the Brady Act
violated this principle by delegating enforcement responsibility to
State law enforcement officers who lacked any ``meaningful Presidential
control.'' Id. The unity of the Executive Branch, and the vigor and
accountability that go along with it, `would be shattered, and the
power of the President would be subject to reduction, if Congress could
act as effectively without the President as with him, by simply
requiring state officers to execute its laws.'' Id. at 922-23.
The delegation of authority to the head of the State Tourism office
in H.R. 585 appears to give rise to similar questions. Unlike the
statute at issue in Printz, H.R. 585 does not compel the head of the
State Tourism office to play any role in the designation of gateway
communities. The infringement of State sovereignty appears less severe
for this reason, and inaction by the head of the State Tourism office
serves only to preserve the status quo. See Lac Courte Oreilles Band of
Lake Superior Chippewa Indians of WI v. United States, 259 F. Supp. 2d
783, 798-99 (W.D. Wis. 2003) (holding the Indian Gaming Regulatory
Act's requirement of gubernatorial concurrence in administrative
decisions did not offend dual sovereignty). Because the head of the
State Tourism office may choose to refuse to exercise his or her role
under the bill with potentially little impact on its implementation,
the current wording probably does not implicate dual sovereignty
concerns.
Even so, the bill may implicate some of the governmental
accountability concerns expressed by the Court in Printz: ``even when
the States are not forced to absorb the costs of implementing a Federal
program, they are still put in the position of taking the blame for its
burdensomeness and for its defects.'' Id. at 530. H.R. 585 could
perhaps raise some of the same concerns, because a State officer could
face blame for improperly implementing the Federal definition of a
``gateway community'' if someone is dissatisfied at his or her
designation (or failure to designate) a particular community.
The bill does appear to present a significant separation of powers
problem. Congress appears to be delegating the implementation of its
definition of ``gateway community,'' which is an Executive function, to
a State official who is not subject to any Presidential control. There
would be little problem if the head of the State Tourism office
presented suggestions and the Secretary had ultimate determination
authority. But as currently drafted, the bill appears to delegate
unrestricted implementation authority to a State official, which
appears to be an improper diminishment of the Federal executive power.
This may present a problem not only under the general
Constitutional separation of powers framework discussed in Printz, but
also under the Appointments Clause, which provides that the President
shall appoint all ``Officers of the United States.'' U.S. Const. art.
II, 2. Persons not appointed by the President may not exercise
executive power that is reserved for officers of the United States. See
Confederated Tribes of Siletz Indians v. United States, 110 F.3d 668,
696 (9th Cir. 1997). One court has stated that granting such authority
to a State officer impermissibly infringes Executive Branch power if
the State officer exercises ``significant authority'' under the Act and
is granted ``primary responsibility'' for designation. Id. at 697. In
that case, the court ultimately found that the Indian Gaming Regulatory
Act's provision requiring that the governor of State concur with the
Secretary of the Interior's determination regarding Indian gaming
within a State was Constitutionally permissible, because the governor
had no authority to act on his own, and was merely making a
determination on behalf of the state's interest, and not with respect
to the Federal interest. Id. at 698.
H.R. 585 presents a more problematic situation that appears to run
afoul of both the separation of powers between the Executive and
Legislative Branches and the Appointments Clause. Because the head of
the State Tourism office possesses independent authority to act on his
or her own, and shares primary and equal responsibility with the
Department of the Interior in designating gateway communities, the bill
appears to improperly grant Executive power to a State officer.\1\
---------------------------------------------------------------------------
\1\ As currently drafted, it is not clear what would happen under
H.R. 585 if the Secretary and the head of the state tourism office
disagreed as to whether a community was a ``gateway community.'' If a
community can meet the definition based on the head of the state
tourism office's determination even when the Secretary disagrees, then
the state official's implementation of the law will essentially
override the federal official's. This may present another
Constitutional question under the Supremacy Clause, U.S. Const. art.
VI, 2, which provides that federal law ``shall be the supreme Law of
the Land.''
---------------------------------------------------------------------------
A framework that permitted the head of the State office of tourism
to present suggestions to the Secretary would appear to better
withstand separation of powers concerns, so long as ultimate decision
authority rested in the Secretary, an appointed official. As currently
drafted however, the bill appears to delegate unrestricted
implementation authority to a State official.
h.r. 3981--tahoe national forest land exchange
Question 1. I want to continue a discussion that we had the last
time you testified before this committee. At that time, I requested
staff gather data on the number of administrative and legislated
exchanges each year since 1995. The data we have collected shows that,
in 1995 to 1998, the Forest Service completed an average of about 100
administrative exchanges each year. The number has since tumbled to a
low of only 14 administrative exchanges in 2005. I understand from
staff that you are going to tell me the real number is 35
administrative exchanges in 2005. I don't think the actual number is as
important as the trend line. The Land Acquisition and Management
budget, which covers more than just administrative exchanges, has grown
from about. $40 million in 1996 to as high as $156 million in 2000 and
is back to about $63 million in 2005.
Can you give me one good reason we should expend $63 million in
2005 to accomplish only 35 administrative exchanges?
Answer. As a point of clarification, The Forest Service Land
Acquisition Program only provides for the acquisition of lands through
the Land and Water Conservation Fund (LWCF) program. In FY 2005, the
LWCF program was funded at $61 million after rescission.
In FY 2005, the Landownership Management Program was funded at
$92.1 million (after rescission) for the following activity areas: Land
Exchanges, Title Management, Boundary Management, and Non-Recreation
Special Uses. Administrative benefits from this program are achieved by
minimizing land survey and fire management costs, reducing NFS
boundaries, protecting property rights, acquiring rights-of-way,
authorizing special uses and simplifying road management.
Of the $92.1 million appropriated for the Landownership Management
Program, we projected that around $18 million (roughly 20%) would be
expended to complete land exchanges, with a portion covering some land
sales expenses as well. This 20%, along with cost sharing by non-
federal exchange parties allowed for the completion of 35 exchanges and
over 35,708 acres acquired and 13,579 acres conveyed (plus an
additional 293 million acres of subsurface mineral rights underlying
two Florida state forests). This has been the level of funding for NFLM
and the land exchange component for the last three years ($91.6 FY04
and $92.4 FY03).
While there have been fewer land exchanges completed in the last
five years than prior to 2000, there has been an increase in the number
of completed land sales, including administrative site conveyances, and
land purchases over this same time frame. The land exchange, sale, and
purchase programs all rely on the same realty and appraisal staff. In
many locations, this same staff is also supporting the special uses
programs. Resource specialists providing support for NEPA and CERCLA
assessments are also responsible for increasing numbers of fuels
management and energy related projects. Often, land exchange is not the
highest priority work to be accomplished, and unless significant costs
are borne by the non-federal exchange party, exchanges may have to be
postponed or foregone entirely.
The Office of Inspector General and the General Accountability
Office audited the FS and BLM land exchange programs beginning in 1996.
These audits identified numerous deficiencies, and as a result,
significant changes were made to the program. Improvements include: a
more formal assessment of the feasibility of an exchange early in the
process, oversight by the Washington Office of individual cases over
$500,000 in value, oversight of all cases by Regional Offices, a
reorganization of appraisal staff to ensure independent valuation
products, and updating of Forest Service directives. While these and
other required controls may have lengthened the process, we believe
that they ensure financial accountability and protect the public
interest.
We have recently eliminated the requirement for Washington Office
case oversight, to be replaced by periodic Regional program reviews.
This is expected to streamline the overall review process while
ensuring continued Regional oversight and control.
Question 2. I would like you to have your people provide us with
the following data: the number of administrative and legislative
exchanges; the number of acres of each of those types of exchanges; and
the time taken for each administrative and legislated exchange
undertaken between Fiscal Year 1995 through the 2nd quarter of Fiscal
Year 2006 by forest and year.
Answer. We have enclosed a table that shows information from
``management attainment reports'' (MAR) for fiscal years 1992 through
2005 with the following information: number of exchanges, acres and
value of federal land conveyed, and acres of non-federal land acquired.
Included is information from budget justifications for planned
(estimated) budget for land exchanges within the NFLM line item in the
three fiscal years for which such estimates have been made. The total
NFLM line item amount is available only for fiscal years 2000 through
2005. Prior to 2000, this line item is not comparable as it contained
different work items.
The Forest Service does not normally collect information on whether
exchanges are accomplished administratively or legislatively, or on the
time required for accomplishing exchanges. However, in response to a
special request, information for all regions and forests (except for
the Southern Region) was compiled for the years 1995-2004. The data
indicates legislated land exchanges occurred in 27 of 468 cases, or
5.8% of all exchanges.
The data also showed that it takes an average of 2.5 years to
complete an exchange. This time frame begins with the signing of the
Agreement to Initiate (ATI) and ends with the final recordation of
deeds. Months or even years of discussions sometimes lead up to formal
initiation. The ATI specifies the sharing of costs, requirements of
title, appraisal, survey, and general process, and the estimated
schedule for completion of necessary processing steps. Depending on the
complexity of the exchange, and considering unforeseen circumstances,
the time schedule may be short or long. The primary drivers in
completing a land exchange, large or small, are the level of commitment
and cooperation exercised by the exchange parties, as well as the
funding and skills available to complete all tasks. We would like to
meet with the Subcommittee staff to discuss this information in further
detail.
Question 3. I would also like on a regional basis and for the
Washington ice to know the number of employees (FTE s) at all levels of
the agency that work on land exchanges as a principle part of their
duties for each year.
Answer. It is difficult to quantify precisely how many Forest
Service FTEs work principally on land exchanges each year, for the same
reason that it is difficult to extract land exchange funding from other
activities funded within the Land Management Program area. At the
Forest and District levels, employees funded in the lands program
perform a variety of duties depending upon the Forest's priorities.
These duties include land exchanges, land purchases, land sales, title
management, boundary management, non-recreation special uses, trespass
cases, and so forth. At Regional Offices (RO), we estimate an average
of 1 FTE per region is assigned to land exchanges in a given year,
depending on priorities. The Washington Office (WO) has 1 FTE assigned
to land exchanges.
Question 4. Joel--I have to presume, given the number of years
these two exchanges have languished, that the Forest Service either
doesn't want these exchanges, or thinks them unwarranted. I want a
straight yes or no answer: Does the Forest Service support these
exchanges? I will take the answer ``we do not oppose'' as a no.
Answer. Yes, we are interested in acquiring the non-federal lands
proposed in this exchange. However, all exchanges are now being
processed by the R5 Regional Land Adjustment Team and require each
exchange proposal to compete with every other exchange proposal in
California. Exchanges that proceed are those with the greatest net
public value. Consequently, small exchanges such as these may not be
funded through the administrative prioritization process, considering
their size and resources values.
LAND EXCHANGES
[1992-2005]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Acres of Non- NFLM Planned for
Fiscal Year Number of Land Acres of Federal Value of Federal Land Federal Land Exchange $ in Total NFLM
Exchanges Land Conveyed Exchanged Acquired thousands
--------------------------------------------------------------------------------------------------------------------------------------------------------
2005 35 306,435 $46,683,318 35,708\6\ $18,060 $92,129
2004 29 8,074 $32,687,554 12,874 $76,799 $91,550
2003 26 7,654 $34,425,813 25,981 $18,528 $92,411
2002 31 7,514 $14,177,066 10,915 $88,434
2001 24 25,340 $41,830,290 35,132 $86,418
2000 63 34,522 $94,962,307 79,295\5\ $82,565
1999 83\3\ 83,896 $134,647,357 316,037\4\
1998 86 27,420 $96,843,272 69,938
1997 96 133,870 $224,123,000 244,178
1996 93 32,691 $99,389,000 65,848
1995 116 91,884\1\ $78,118,675 98,405\2\
1994 117 42,000 $46,200,000 75,757
1993 113 54,680 $61,000,000 81,956
1992 109 38,574 $37,800,000 69,102
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ includes 15,420 acres of subsurface mineral interest, R-10
\2\ includes 14,914 acres of subsurface mineral interest, R-10
\3\ 83 cases is equal to 77 fee cases and 6 mineral cases
\4\ includes fee and partial acres acquired
\5\ non-federal acres as reported in MARS
\6\ includes the State of Florida, R-8 exchange of surface and subsurface figures shows for P105 are from digests from the Regions; figures should but
may not match those reported in MARS
______
Responses of Lynn Scarlett to Questions From Senator Craig
h.r. 585--gateway communities
Question 1. Some believe that H.R. 585 could provide gateway
communities some special legal status that would allow these
communities to contest federal management plans. Mr. Warren's oral
testimony indicated that he didn't believe that this bill gave special
legal status to the gateway communities, but then, in his conclusion,
he said ``all we are asking for is legal standing.''
Could you get your solicitor to provide us an analysis of H.R. 585
and the cooperating agency rules and policies to help inform us whether
or not providing such standing to a gateway community will afford these
communities special standing in the courts?
Answer. H.R. 585 would impose a number of mandatory procedural
steps that Federal land managers must take specifically with respect to
gateway communities, and therefore could create several new legal
claims that could be asserted by communities dissatisfied with a
management plan or projects. Under existing law and regulations,
gateway communities already have the opportunity to comment as part of
the National Environmental Policy Act (NEPA) analysis for management
plans and projects. The CEQ regulations define a cooperating agency to
mean ``any Federal agency other than a lead agency which has
jurisdiction by law or special expertise with respect to any
environmental impact involved in a proposal . . .'' 40 CFR 1508.5. ``A
State or local agency of similar qualifications . . . may by agreement
with the lead agency become a cooperating agency.'' Id. The CEQ
regulations also describe the responsibilities of the lead agency and
cooperating agencies. 40 CFR 1501.6.
Section 2(d)(7) would remove the agency's discretion by requiring a
designation of any gateway community upon the request of that
community. A gateway community that is dissatisfied with a management
plan or project for which it has been designated as a cooperating
agency might be encouraged to challenge the plan or project believing
that its designation confers the standing necessary to do so.
Cooperating agency status does not by itself confer standing to
challenge a NEPA document. Similarly, designation as a cooperating
agency pursuant section 2(d)(7) of the bill would not, by itself,
confer standing.
A State or local entity with standing that is selected as a
cooperating agency may be able to sue for procedural violations
associated with its status as a cooperating agency if it is
dissatisfied with the process. See, e.g., Int'l Snowmobile Mfrs. Ass'n
v. Norton, 340 F. Supp. 2d 1249,1261-62 (D. Wyo. 2004)(finding NPS did
not adequately consult with cooperating agency States before changing
preferred alternative). Such a challenge could be brought under the
Administrative Procedure Act (APA) when the agency makes its final
decision as a result of that process, and the cooperating agency can
establish that it is adversely affected by the final agency decision.
H.R. 585 could greatly increase the number of management actions
for which gateway communities are designated as cooperating agencies
and may also give gateway communities that can establish standing
another claim to file if they believe they are improperly denied
cooperator status. H.R. 585 also includes a number of other mandatory
duties that could give rise to legal claims if a party is able to
establish standing. Section 2(d) provides that ``[a]t the earliest
possible time, the relevant Secretary shall solicit the involvement of
. . . gateway communities,'' ``shall provide . . . at the earliest
possible time but not later than the scoping process'' a list of
specific types of information, ``shall provide training sessions,''
``shall make available personnel'' upon request, and ``shall
consolidate and coordinate'' planning processes with those of other
Federal agencies in order to make it easier for gateway communities to
participate.
Each of these mandatory procedural requirements may provide an
opportunity for a dissatisfied gateway community (or entity that
believes it is a gateway community) to challenge a land management
action as ``contrary to law'' under the APA. While the bill may not
confer any special ``standing'' in an Article III sense, it does appear
to greatly multiply the number of potential legal claims that might be
asserted in any APA lawsuit by a dissatisfied gateway community with
standing.
To address this issue, the Department has proposed an amendment to
H.R. 585, provided in a separate letter, to ensure that the bill does
not result in the creation of enforceable claims by gateway
communities.
Question 2. H.R. 585 currently calls for the Secretaries or a State
Director of Tourism to designate the Gateway Communities.
Could you provide a legal analysis that examines the
constitutionality of a State Direct of Tourism making such a decision
for the Department of the Interior?
Answer. Section 2(c) of H.R. 585 defines ``gateway community'' to
include only those that ``the relevant Secretary (or the head of the
tourism office for the State)'' determines is significantly affected by
decisions at issue. The parenthetical inclusion of the head of the
State tourism office presents potential Constitutional problems under
the principles of dual sovereignty, the separation of powers, the
Appointments Clause, and the Supremacy Clause.
In Printz v. United States, 521 U.S. 898 (1997), the Supreme Court
held unconstitutional a portion of the Brady Handgun Violence
Prevention Act that required State law enforcement officers to execute
its background check requirements. The Court relied on two
Constitutional principles for this portion of its holding: dual
sovereignty and the separation of powers.
First, the Court discussed the division of power between State and
Federal governments, noting that they exercise concurrent authority,
``each protected from incursion by the other.'' Id. at 920. The Court
found that the Brady Act violated this principle by ``conscripting
state officers'' into Federal service--effectively a ``Federal
commandeering of state government[]'' that violated State sovereignty.
Id. at 925.
Second, the Court also discussed the division of power between the
branches of the Federal government, and the ``separation and
equilibration'' of their powers. Id. at 922. The Constitution provides
that the President, either himself or through his appointees, is the
one who ``shall take Care that the Laws be faithfully executed.'' Id.,
quoting U.S. Const. art. II, 3. The Court found that the Brady Act
violated this principle by delegating enforcement responsibility to
State law enforcement officers who lacked any ``meaningful Presidential
control. Id. The unity of the Executive Branch, and the vigor and
accountability that go along with it, ``would be shattered, and the
power of the President would be subject to reduction, if Congress could
act as effectively without the President as with him, by simply
requiring state officers to execute its laws.'' Id. at 922-23.
The delegation of authority to the head of the State Tourism office
in H.R. 585 appears to give rise to similar questions. Unlike the
statute at issue in Printz, H.R. 585 does not compel the head of the
State Tourism office to play any role in the designation of gateway
communities. The infringement of State sovereignty appears less severe
for this reason, and inaction by the head of the State Tourism office
serves only to preserve the status quo. See Lac Courte Oreilles Band of
Lake Superior Chippewa Indians of WI v. United States, 259 F. Supp. 2d
783, 798-99 (W.D. Wis. 2003) (holding the Indian Gaming Regulatory
Act's requirement of gubernatorial concurrence in administrative
decisions did not offend dual sovereignty). Because the head of the
State Tourism office may choose to refuse to exercise his or her role
under the bill with potentially little impact on its implementation,
the current wording probably does not implicate dual sovereignty
concerns.
Even so, the bill may implicate some of the governmental
accountability concerns expressed by the Court in Printz: ``even when
the States are not forced to absorb the costs of implementing a Federal
program, they are still put in the position of taking the blame for its
burdensomeness and for its defects.'' Id. at 530. H.R. 585 could
perhaps raise some of the same concerns, because a State officer could
face blame for improperly implementing the Federal definition of a
``gateway community'' if someone is dissatisfied at his or her
designation (or failure to designate) a particular community.
The bill does appear to present a significant separation of powers
problem. Congress appears to be delegating the implementation of its
definition of ``gateway community,'' which is an Executive function, to
a State official who is not subject to any Presidential control. There
would be little problem if the head of the State Tourism office
presented suggestions and the Secretary had ultimate determination
authority. But as currently drafted, the bill appears to delegate
unrestricted implementation authority to a State official, which
appears to be an improper diminishment of the Federal executive power.
This may present a problem not only under the general
Constitutional separation of powers framework discussed in Printz, but
also under the Appointments Clause, which provides that the President
shall appoint all ``Officers of the United States.'' U.S. Const. art.
II, 2. Persons not appointed by the President may not exercise
executive power that is reserved for officers of the United States. See
Confederated Tribes of Siletz Indians v. United States, 11.0 F.3d 668,
696 (9th Cir. 1997). One court has stated that granting such authority
to a State officer impermissibly infringes Executive Branch power if
the State officer exercises ``significant authority'' under the Act and
is granted ``primary responsibility'' for designation. Id. at 697. In
that case, the court ultimately found that the Indian Gaming Regulatory
Act's provision requiring that the governor of State concur with the
Secretary of the Interior's determination regarding Indian gaming
within a State was Constitutionally permissible, because the governor
had no authority to act on his own, and was merely making a
determination on behalf of the state's interest, and not with respect
to the Federal interest. Id. at 698.
H.R. 585 presents a more problematic situation that appears to run
afoul of both the separation of powers between the Executive and
Legislative Branches and the Appointments Clause. Because the head of
the State Tourism office possesses independent authority to act on his
or her own, and shares primary and equal responsibility with the
Department of the Interior in designating gateway communities, the bill
appears to improperly grant Executive power to a State officer.\1\
---------------------------------------------------------------------------
\1\ As currently drafted, it is not clear what would happen under
H.R. 585 if the Secretary and the head of the state tourism office
disagreed as to whether a community was a ``gateway community.'' If a
community can meet the definition based on the head of the state
tourism office's determination even when the Secretary disagrees, then
the state official's implementation of the law will essentially
override the federal official's. This may present another
Constitutional question under the Supremacy Clause, U.S. Const. art.
VI, 2, which provides that federal law ``shall be the supreme Law of
the Land.''
---------------------------------------------------------------------------
A framework that permitted the head of the State office of tourism
to present suggestions to the Secretary would appear to better
withstand separation of powers concerns, so long as ultimate decision
authority rested in the Secretary, an appointed official. As currently
drafted however, the bill appears to delegate unrestricted
implementation authority to a State official.
Responses of Lynn Scarlett to Questions From Senator Murkowski
Question 1. The Department's testimony suggests that the definition
of a ``gateway community'' needs further refinement. I would agree, but
your testimony doesn't take account of the fact that in my State of
Alaska many communities that border on public lands are unincorporated,
which is to say that these communities are neither cities nor part of
one of Alaska's organized boroughs. It would seem to me that the State
of Alaska should be permitted to exercises that powers that the gateway
local governments ordinarily would in this instance. Would you consider
recommending this change?
Answer. The inclusion of the states in the definition of gateway
communities would be one means of addressing the challenge of a
requirement that would include unincorporated communities. Mandates to
include an unincorporated community are problematic and could result in
legal challenges because the Federal land management agency would not
have an elected or appointed official through which we could ensure the
representative engagement of the entire community. For this reason, the
Department has proposed an amendment to limit the definition of a
gateway community only to those that are incorporated. Such an
amendment would not interfere with our goal to engage all interested
and affected communities, including those that are unincorporated, in
our land use planning process.
With regard to the inclusion of states, as we mentioned in our
testimony, existing Department-wide guidance at 516 DM 2.5 requires all
agencies to invite states to participate as cooperating agencies during
development of an environmental impact statement under National
Environmental Policy Act. Through a state's participation as a
cooperating agency, a state could certainly work to ensure that
unincorporated communities are represented through this process.
Question 2. I'm troubled by the Department's comment on Section
2(d)(4) which would make federal personnel available to gateway
communities to help them meaningfully participate in planning efforts.
I understand that federal resources are limited, but I would also
suggest that meaningfully involving stakeholders in the planning
process is or should be a key federal responsibility. If the federal
land management agencies are going to undertake planning processes
shouldn't they devote what resources are necessary to do it right, with
full engagement from the affected communities?
Answer. We agree that meaningful involvement involving stakeholders
in the planning process is an important Federal responsibility. We
believe that other provisions in the bill and in existing Federal and
agency regulations and guidance provide the necessary processes to
ensure such engagement. The provision in section 2(d)(4), however,
differs in that it mandates that Federal personnel take temporary work
details to gateway communities to assist with planning efforts. The
number of gateway communities that would be eligible to make the
request for technical assistance is likely to far exceed the number of
Federal planning experts who would be available in the field offices to
provide the assistance. We believe this provision is simply not
feasible, could result in competition among gateway communities for
limited Federal personnel, could adversely affect the ability of
Federal agencies to work with many gateway and other communities on
ongoing, priority planning projects, and could result in significant
delays of Federal projects as Federal personnel are diverted from their
planning duties.
Question 3. I think your testimony notes that 62% of my State of
Alaska is owned by the federal government. Sometimes that makes
Alaskans happy, sometimes not. But one thing that deeply concerns many
of my constituents is the prospect that the federal government will
exert or influence the control of land use off of the federal lands.
Would anything in H.R. 585 give the federal government a lever to
control land use in the gateway communities?
Answer. H.R. 585 does not appear to provide the Federal government
with the authority to make decisions concerning lands that are under
state, tribal, or local jurisdiction or under private ownership.
Through provisions that permit greater coordination of land use and
allow for technical assistance by Federal personnel, H.R. 585 could
provide for greater Federal participation in State or local land use
planning, but this participation would occur at the discretion of the
gateway community.
______
Responses of Steve Duerr to Questions From Senator Craig
Question 1. I am hoping you can help me to develop more empathy for
``national interests `` when the national interest groups gang-up with
the agency's inside-the-beltway policy-makers to make decisions that
devastate these small local communities. It seems to me the existing
paradigm more than protects the ``national interests ``. So why do the
groups representing ``the national interests `` so fear this
legislation?
Answer. I cannot speak for such groups. I would counsel the
subcommittee against painting all national organizations with a broad
brush. Certainly, there are some that have little sensitivity to local
issues and needs. Others, however, are very cognizant of local issues
and work hard to balance those with issues of national importance--
particularly those that employ people who are part of our communities
and have a stake in our economic well-being. For example, the National
Parks Conservation Association has worked closely with the local
community around Jackson to develop a transportation system that works
for Grand Teton National Park and the surrounding community. My
impression is they do not fear legislation if that legislation makes
sense. What concerns me is the potential for legislation that promises
much more than it can possibly deliver, ultimately leading to
frustration and added tension. In my experience, mandates to cooperate
do not produce cooperation, nor do checklists that ultimately serve as
a ``gotcha''. They are not what we need when it comes to long-term
solutions. The fact that an agency checks all the required boxes does
not mean communities will be any better off, or that dialogue will
improve or lead to sustainable results or compromises. What is needed
are appropriate early-and mid-career training opportunities for federal
managers and for gateway community officials on how to work together
productively in their roles. Separate funding to hire facilitators or
mediators would also be useful at times. The last thing that anyone who
cares about what happens in and around national parks and other federal
lands needs, whether they come from a national or a local perspective,
is a product that produces a false promise of progress. That will only
lead to frustration.
Question 2. Having read your testimony, I am not sure H.R. 585 is a
``one size fits all'' bill. As I see it, the bill directs the various
federal agencies to give gateway communities improved access to their
respective planning processes, which are all governed by NEPA. Each
individual agency's NEPA regulations and policies tell anyone that is
interested how to comment and communicate with the agency. Nothing in
the bill says the National Park Service has to utilize the Forests
Service's process or visa versa, so can you help me better understand
this concern?
Answer. The missions of the Park Service, the Forest Service, the
Bureau of Land Management and the Fish and Wildlife Service are all
different. The lands they manage are subject to vastly different uses.
Their relationship to each other and the issues affecting specific
units and gateway communities also differ. The financial and staff
resources available to each, also vary. For example, as I cited in my
written testimony, the bill assumes that the federal land management
units concerned will be able to provide a land use planner to gateway
communities upon request. In fact, national parks are so understaffed,
that they may not have that kind of person available. Also, the vast
majority of national park units are historic in nature. Does anyone
really think they are likely to employ land use planners? Something
else that bothers me about this kind of requirement is that it's not
necessary. The authority already exists for national parks to provide
such assistance where it makes sense, and many already do. Finally, I
would hate to see federal agencies interpret a bill like this as only
requiring them to provide certain kinds of assistance, like a land use
planner. By so narrowly defining what ``cooperation'' should look like,
it's possible the bill would, indeed, produce a very narrow vision of
how gateway communities and federal land managers should interact. That
would be truly unfortunate.
Question 3. Some believe that H.R. 585 could provide gateway
communities some special legal status that would allow these
communities to contest federal management plans. Mr. Warren's oral
testimony indicated that he didn't believe that this bill gave special
legal status to the gateway communities, but then, in his conclusion,
he said ``all we are asking for is legal standing. ``
Could you get your legal counsel to provide us with an analysis of
H.R. 585 and the cooperating agency rules and policies to help inform
us whether or not providing such standing to a gateway community will
afford these communities special standing in the courts?
Answer. I suggest that the subcommittee ask this question of the
Council on Environmental Quality, which is probably in the best
position to analyze the standing issues you raise. It is my impression,
however, that CEQ already requires federal agencies to invite local
communities to participate as cooperators. While cooperating agency
status is important, gateway communities must be aware of the work that
accompanies such status. Once granted, true cooperation is necessary by
all participants.
Question 4. H.R. 585 currently calls for the Secretaries or a State
Director of Tourism to designate the Gateway Communities.
Could you provide a legal analysis that examines the
constitutionality of a State Director of Tourism making such a decision
for either the Department of Agriculture or the Department of the
Interior?
Answer. I am not in a position to provide the kind of
constitutional analysis you request, but I'm not certain of the logic
behind this provision.
Response of Steve Duerr to Question From Senator Murkowski
Question 1. I appreciate your comment that ``cooperation cannot be
legislated. `` I would like to frame the question another way. In any
large organization, whether it is General Motors or the Interior
Department, managers tend to respond to the criteria on which their
performance will be evaluated. Wouldn't you think that federal land
managers were given a set of uniform expectations about how to work
with gateway communities and were measured on achieving those
objectives, there would be greater coordination and less confrontation
on important land use decisions.
Answer. Your question makes the kind of point I attempted to make
in my testimony. I think it is very important that federal managers be
evaluated based on how well they interact with gateway communities and
other stakeholders. They need to be provided the skills to engage in
such interaction, and they ought to be held accountable for how well
they communicate and deal with gateway communities and others in
performance reviews. Federal land managers need to recognize the very
real impact that some of their decisions can have on our communities.
But as written, H.R. 585 will not accomplish that.
______
Responses of Bob Warren to Questions From Senator Craig
Question 1. As I understand cooperating agency status, the program
requires the cooperating agency to invest more than just time into
going to meetings. It requires they provide the agencies with specific
research or community developed alternatives to ongoing planning
efforts. I know that Carbon County, Wyoming, which has cooperating
agency status on the Medicine Bow National Forest planning effort,
invested at least a hundred thousand dollars to develop an alternative
for the forest to consider in its planning process.
I wonder how many gateway communities are willing to make that kind
of monetary investments when part of this legislation tells me these
communities don't even have the money to spend to understand the
various agency processes they need to understand to participate as a
cooperating agency?
Answer. We realize that it may strain the budgets of some
communities to participate in the NEPA process as cooperating agencies.
Some of them may indeed decide not to participate as cooperating
agencies for financial reasons.
We do not believe, however, that this is reason not to enact H.R.
585, for the following reasons: First, providing for gateway
communities to be treated as cooperating agencies for NEPA purposes is
only one part of H.R. 585. Section 2 (d) directs the relevant Secretary
to solicit the involvement of elected and appointed gateway officials
in the development of a variety of agency plans, programs and
regulations that do not necessarily involve NEPA. Furthermore, we think
the requirements in this section for non-technical agency explanations
of the purposes and anticipated impact of agency plans and policies,
for gateway access to agency training programs, for technical
assistance and for interagency cooperation and coordination will
especially benefit gateway communities with limited budgets more than
others with larger budgets.
We further believe that the fiscal capacity of gateway communities
to participate as cooperating agencies should not be prejudged. Even if
a gateway community budget is limited, it may be possible for that
community to receive support from the State or from private sources
that would enable it to participate as a cooperating agency. We would
urge Congress not to presume any community's determination to overcome
limited fiscal resources when vital questions affecting its future are
perceived to be at stake.
Finally, we would respectfully note that the thrust of Section
2(d)(7) of H.R. 585 (``Treatment as Cooperating Agencies) is similar to
S. 301 in the 107th Congress and S. 372 in the 108th Congress,
identical bills entitled the ``State and Local Participation Act,''
which you and Senator Thomas sponsored. That legislation would have
amended NEPA simply ``to require that Federal agencies consult with
State agencies and county and local governments on environmental impact
studies.'' We would be glad to consider substituting language similar
to S. 301/372 for the current Section 2(d)(7) if that would clarify
doubts or uncertainties concerning this section.
Question 2. Some believe that H.R. 585 could provide gateway
communities some special legal status that would allow these
communities to contest federal management plans. Your oral testimony
indicated that you didn't believe that this bill gave special legal
status to the gateway communities, but then, in your conclusion, you
said ``all we are asking for is legal standing. ``
Could you get your legal counsel to provide us with an analysis of
H.R. 585 and the cooperating agency rules and policies to assure us
that providing such standing to a gateway community will not afford
these communities special standing in the courts?
Answer. The limited budget of the NAGC precludes us from using
legal counsel at this time, so we hope the following explanation is
sufficiently responsive to this question. It is, of course, very
difficult to prove a negative, i.e. that H.R. 585 will not afford
special legal standing to contest Federal management plans. We are not
aware, however, that cooperating agencies under NEPA at present have
any special legal standing and would request any information or
precedents to the contrary. We suggest, in fact, that participation as
cooperating agencies would make gateway communities less rather than
more likely to litigate Federal management plans. Such participation
will make these communities will make gateways more a meaningful part
of the process as more informed participants. We respectfully suggest
that by bringing gateways into the planning process earlier and giving
them a significant opportunity to participate, they will be more
understanding of what is being done and, therefore, less likely to
contest final plans in court. We again refer to S. 301/372 as cited
above and reiterate our willingness to consider substituting similar
language for the cooperating agency language in H.R. 585 if that would
clarify and resolve this concern.
(NOTE: Our request for ``legal standing'' in our earlier oral
testimony was intended only for rhetorical purposes and should not be
construed as a request for actual justiciable status. We regret any
indication to the contrary.)
Question 3. H.R. 585 currently calls for the Secretaries or a State
Director of Tourism to designate the Gateway Communities.
Could you provide a legal analysis that examines the
constitutionality of a State Direct of Tourism making such a decision
for either the Department of Agriculture or the Department of the
Interior?
Answer. Again, we regret not being able to provide a legal analysis
and ask your indulgence for this non-legal explanation. It appears to
us this question has several parts. First, is the Director of Tourism
the appropriate State official to designate a gateway community for
purposes of this legislation. While State Tourism Offices are well
qualified to judge the degree of interdependency between a community
dependent on visitors coming for recreation and tourism and the Federal
land facility that attracts those visitors, we recognize some gateways
may be more dependent on grazing or mineral extraction from the Federal
land facility. It may be more appropriate in those cases for another
State agency to designate the community as a gateway. For this reason,
we accept that it may be better to give the Governor of a State the
authority to make that designation and decide which State agencies
should be used. The next question is, then, whether it is appropriate
for any State official to have that responsibility. Since this
responsibility would not mean any direct supervision of Federal
employees, any direct control or oversight of Federal programs, or any
direct expenditure of Federal funds, we do not believe it would pose
constitutional problems in our federal system.
To the extent this does raise constitutional issues, we suggest
there are ways to mitigate, if not eliminate them. One would be to
amend H.R. 585 to require only that the Secretary of the Interior and
the Secretary of Agriculture ``receive input'' from the Governor of a
State (or their designee) in deciding whether a community is a gateway.
In that case, we suggest that, when a Secretary determines that a
community is not a gateway, a written explanation should be provided by
the Secretary to the respective Governor and to Congress. There is
precedent for reporting back to Congress on decisions made by the
Secretary's of the Interior and Agriculture as outlined in the recently
passed Federal Lands Recreation Enhancement Act. Under section 4, (d),
paragraph (4), Notice of Rejection. If the Secretary rejects the
recommendation of a Recreation Resource Advisory Committee, the
Secretary shall issue a notice that identifies the reasons for
rejecting the recommendation to the Committee on Resources of the House
of Representatives and the Committee on Energy and Natural Resources of
the Senate not later than 30 days before the Secretary implements a
decision pertaining to that recommendation. Similar language could read
for the Gateway Community Cooperation Act as follows: Notice of
Rejection.--If the Secretary rejects the recommendation of the Governor
of a State, in the designation of a gateway community, the Secretary
shall issue a notice that identifies the reasons for rejecting the
recommendation to the Committee on Resources of the House of
Representatives and the Committee on Energy and Natural Resources of
the Senate not later than 30 days after the rejection.
Another way to mitigate constitutional problems may be for Congress
to reduce the discretionary authority of the State official involved by
including criteria either in the legislative language or in the report
language to define more precisely what constitutes a gateway community.
Agreeing on such criteria would be challenging but we would be glad to
work with you and the Subcommittee to develop them.
Responses of Bob Warren to Questions From Senator Murkowski
Question 1. Does your organization, the National Association of
Gateway Communities include representation from Alaska? Have any of
these communities been involved in the development of this legislation?
Answer. At present, the NAGC does not have any members in Alaska.
In late July, the president of the NAGC will visit Alaska to meet with
gateway communities there and we will be happy to report back to
Senator Murkowski and the Subcommittee on the results of that trip as
they may pertain to this legislation.
Question 2. My constituents in Alaska often express concern that
federal land managers approach local leaders with something of a heavy
handed attitude. Do you see this situation as having improved and what
would this bill do to bring about changes in attitude.
Answer. Although relations between gateway communities and Federal
land managers have improved somewhat in Alaska and elsewhere in recent
years, those relations continue to vary according to the personalities
involved--on the part of both the Federal land managers and gateway
officials and other local leaders. This bill alone will not change
attitudes overnight. We understand that you cannot mandate cooperation
and harmony by statutory decrees. But what can be mandated is that both
Federal land managers and gateway representatives meet, discuss, share
information and concerns and, in that way, by working and consulting
together, hopefully, increase mutual understanding of each other's
perspectives, values, goals and needs. We believe H.R. 585 is a
substantial, historic step towards that outcome and we look forward to
working with the Subcommittee to enact it into law.