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108th Congress Rept. 108-96
HOUSE OF REPRESENTATIVES
1st Session Part 2
======================================================================
HEALTHY FORESTS RESTORATION ACT OF 2003
_______
May 16, 2003.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 1904]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 1904) to improve the capacity of the Secretary of
Agriculture and the Secretary of the Interior to plan and
conduct hazardous fuels reduction projects on National Forest
System lands and Bureau of Land Management lands aimed at
protecting communities, watersheds, and certain other at-risk
lands from catastrophic wildfire, to enhance efforts to protect
watersheds and address threats to forest and rangeland health,
including catastrophic wildfire, across the landscape, and for
other purposes, having considered the same, reports favorably
thereon without amendment and recommends that the bill do pass.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 2
Hearings......................................................... 6
Committee Consideration.......................................... 7
Vote of the Committee............................................ 7
Committee Oversight Findings..................................... 8
New Budget Authority and Tax Expenditures........................ 8
Congressional Budget Office Cost Estimate........................ 8
Performance Goals and Objectives................................. 11
Constitutional Authority Statement............................... 11
Section-by-Section Analysis and Discussion....................... 11
Changes in Existing Law Made by the Bill, as Reported............ 13
Markup Transcript................................................ 15
Dissenting Views................................................. 81
Purpose and Summary
The purpose of H.R. 1904, the ``Healthy Forests Restoration
Act of 2003,'' is to: (1) empower the Secretary of Agriculture
and the Secretary of the Interior to implement hazardous fuel
reduction projects on National Forest System lands that protect
communities and watersheds from catastrophic wildfire; and (2)
promote other efforts that safeguard watersheds and address
threats to forest and range land health, such as wildfire and
insect infestation. The courts provisions set forth in the
legislation are designed to expedite legal and administrative
proceedings regarding governmental responses to forestry
crises.
Background and Need for the Legislation
PROCEDURAL BACKGROUND
H.R. 1904 was introduced on May 1, 2003, and referred to
the Committee on Agriculture and the Committee on Resources on
that same day. The Committee on Agriculture reported the bill
by voice vote on May 8 and filed its Committee report (H. Rept.
108-96, Part I) the following day. The Committee on Resources
marked up a Committee Print that is identical to H.R. 1904 and
also discharged the bill on May 9.
H.R. 1904 was sequentially referred to the Committee on the
Judiciary on May 9 for a period of time ending not later than
May 16, 2003, for consideration of those provisions within its
jurisdiction.
NEED FOR LEGISLATION
Federal land managers estimate that approximately 190
million acres of Federal forest lands are at unnaturally high
risk of catastrophic wildfires and large-scale insect and
disease outbreaks due to unhealthy forest conditions. The
wildfire seasons in 2000 and 2002 were among the largest and
most destructive wildfire seasons in the last half century.
Last summer, Oregon, Arizona, and Colorado experienced the
largest wildfires in their respective histories, causing
cataclysmic damage to air quality, water quality, and wildlife
habitat in each of the states and beyond.
While America's forest health crisis is often cast as a
phenomena unique to western forest lands--based largely on the
high profile of western wildfires--it is not. Massive pest and
pathogen outbreaks are also degrading forest ecosystems in all
parts of the country. In Arkansas, for example, a recent
unprecedented outbreak of Red Oak Borer has infected 800,000
acres of Federal and non-Federal forest lands. This is not an
isolated event.
The Healthy Forests Restoration Act of 2003 is a
comprehensive plan focused on giving Federal land managers,
their stakeholders, and their partners the tools to respond to
this growing forest health crisis. This legislation requires
the timely implementation of scientifically-supported
management activities to protect the health and vibrancy of
Federal forest ecosystems as well as the communities and
private lands that surround them.
TITLE I--HAZARDOUS FUELS REDUCTION ON FEDERAL LANDS
This title's underlying premise is simple and clear: With
190 million acres at unnaturally high risk of catastrophic
wildfire, it is unacceptable that it takes Federal land
managers several years to maneuver forest health projects (like
thinning and prescribed burns) through various procedural
requirements. Under this title, forest management projects will
still be subject to rigorous environmental analysis as well as
administrative challenges and lawsuits, but these multiple
processes would be completed in a matter of months, rather than
years, as is currently the case.
Geographic Scope. This title establishes streamlined
procedures that empower local land managers with the tools to
expeditiously implement hazardous fuels reduction projects on
Forest Service and BLM lands: (1) near communities in the wild
land urban interface; (2) on high-risk lands in the proximity
of municipal water sources; (3) on high-risk lands that
encompass habitat for threatened and endangered species where
Federal wildlife officials have identified catastrophic
wildfire as a threat to the viability of the species; and (4)
on high-risk landscapes particularly susceptible to disease or
insect infestation.
Public Participation. The bill codifies the bipartisan
Western Governors Association (WGA) 10-Year Strategy's robust
public input and participation requirements, ensuring that
interested persons will have numerous opportunities to engage
decision makers during all phases of a project's development
and implementation. The WGA strategy was endorsed by many
government and non-government organizations, including
environmental groups like the Wilderness Society. The bill also
requires an additional public meeting for all projects
implemented under this Act beyond that which is required
currently.
Management Priorities. The bill codifies the WGA
prioritization scheme, placing express priority on the
reduction of hazardous conditions in the Wildland Urban
Interface and in proximity to sources of municipal water.
National Environmental Policy Act (NEPA). The bill would
give the Forest Service and the Bureau of Land Management (BLM)
discretionary authority to limit analysis during the NEPA-phase
to the proposed action only. The agencies would not be required
to analyze and describe a number of different alternatives to
the preferred course when implementing a hazardous fuels
reduction project on lands described above. Agencies typically
analyze three to five alternatives at present. One NEPA expert
estimates that each alternative analyzed results in a 20%
increase in the amount of analysis and documentation for the
agency. Currently, it often takes multiple years to get fuels
reduction projects just through the NEPA phase, an unacceptably
slow pace given the immediacy and size of the wildfire threat.
This provision would substantially speed that deliberative
process, while simultaneously ensuring that all of the
environmental effects of a project have been thoroughly
analyzed and vetted with the concerned public.
Administrative Appeals. The Forest Service is the only
Federal land management agency with an administrative appeals
process codified in statute--a 1993 appropriation rider called
the Appeals Reform Act. The Park Service and the Fish and
Wildlife Service have no formal appeals in any form. The BLM
does not have an administrative appeals or review process
codified in Federal statute, but has established a pre-
decisional review process that gives interested parties a venue
in which to seek administrative redress. The BLM process is
widely viewed as being more collaborative, and less
confrontational, than the Appeals Reform Act that governs the
Forest Service.
A hazardous fuels reduction project implemented on at-risk
lands on the Deschutes, White River, or Plumas National Forests
face a significantly higher administrative appeals bar than the
exact same project would encounter if implemented in
Yellowstone National Park (Park Service), the Klamath Basin
Wildlife Refuge (Fish and Wildlife Service), or the Canyons of
the Ancients National Monument (BLM). With the National Fire
Plan's emphasis on inter-agency cooperation, this makes little
sense.
Against this backdrop, the legislation would provide a
limited waiver of the Appeals Reform Act for projects
implemented under this legislation, instead directing the
establishment of an alternative review process by which persons
could seek administrative redress against such projects. The
Forest Service would have 90 days to draft, take comment on,
and finalize this new process for administrative review. The
Appeals Reform Act would continue to be applicable to timber
and salvage projects as well as all other project level
activities not implemented under the Act.
Judicial Review. The bill has three primary provisions
pertaining to the Federal judiciary's consideration of
potential actions brought against hazardous fuels reduction
projects.
The bill would require preliminary injunctions granted by a
Federal court against a project implemented under this Act be
reevaluated every 45 days. In cases where a plaintiff seeks to
extend a preliminary injunction beyond the 45-day threshold,
the bill requires the agency to provide an update to the court
on the status of the conditions of the forest lands at issue,
including the extent to which disease or insect infestation or
wildfire risks have grown since the temporary restraining order
or preliminary injunction were granted. The court could extent
preliminary injunctions an unlimited number of times at the end
of each 45-day interval.
Currently, preliminary stays on fuels reduction projects
can remain in effect for months before a court finally reaches
a decision on the overarching merits of the legal challenge.
These long delays can by themselves defeat the purposes of a
forest treatment project, particularly if a project is aimed at
stemming the spread of disease or insect infestation to
uninfected forest lands. In these cases, judicial delay is just
as lethal as judicial defeat for the government. Without
curbing anyone's ability to pursue a full range of judicial
procedures, this provision would ensure that the court remains
engaged on the status of a project, including the extent to
which management inaction is exacerbating wildfire and forest
health risks.
The bill admonishes, in non-binding terms, Federal courts
considering a legal challenge to a hazardous fuels reduction
project to take all necessary steps required in order to issue
a decision on the merits of the legal challenge within 100
days.
The bill directs Federal courts, when considering a
challenge to hazardous fuels reduction projects, to weigh the
potentially devastating environmental consequences associated
with management inaction, while giving deference to the Forest
Service and BLM's scientific determinations as to the
environmental utility of a project in reducing the threat of
wildfire to forest ecosystems. Without this explicit statutory
direction, some Federal courts have been loath to consider the
devastating consequences of doing nothing to address the
hazardous forest conditions.
Safeguards. The Forest Service and BLM would NOT be
authorized to use the expedited analysis procedures in
wilderness areas, or lands where, by Act of Congress or
Presidential proclamation, the removal of vegetation is
prohibited or restricted. Also, the bill's expedited
authorities would not be available in National Parks or in
Wildlife Refuges. Projects implemented in these areas would
have to be done so under existing authorities.
Additionally, the bill provides that the Forest Service
will not be allowed to build new permanent roads in Inventoried
Roadless Areas under the bill's expedited procedures.
Scope. The Healthy Forests Restoration Act's streamlined
procedures could be used on up to 20-million acres of Federal
lands eligible under the bill's provisions, the same number of
acres authorized for treatment under Representative George
Miller and Representative Peter Defazio's wildfire legislation
introduced in the 108th Congress (H.R. 1621).
TITLE II--BIOMASS
The biomass title would establish grant programs
(authorized at $25 million combined) to encourage energy-
related utilization of the otherwise valueless wood, chips,
brush, thinnings, and slash removed in conjunction with
projects on Federal forests and rangelands focused on reducing
the threat of catastrophic wildfire and insect infestation and
disease.
As the Federal Government wrestles with the wildfire crisis
in the national forests, the choice is plain: either the
Federal Government can spend billions of dollars removing these
unmerchantable materials itself and burning them once removed,
or it can take steps to develop markets which in the long run
will encourage non-government entities to help pay the way for
wildfire management activities, while providing a source of
renewable energy for the American people. Even though there is
a price tag to the biomass provisions, they will actually save
the Federal Government money in the long run by creating market
incentives for non-governmental entities to remove the
otherwise valueless forest materials that feed catastrophic
wildfire.
TITLE III--WATERSHED FORESTRY ASSISTANCE
The watershed forestry title would provide financial and
technical support needed by private forest landowners to manage
their lands and thereby protect water quality, restore
watershed conditions, improve municipal drinking water
supplies, and address threats to forest health, including
catastrophic wildfire.
Authorized at $15 million over 5 years, the program would
support community-based watershed forestry partnerships that
address critical forest stewardship, watershed protection, and
restoration needs.
TITLE IV--INSECT INFESTATION INFORMATION GATHERING
The insect research title directs the Department to conduct
an accelerated program to plan, conduct, and promote research
on bark beetles, the hemlock woolly adelgid, the emerald ash
borer, the red oak borer, and the white oak borer.
Hemlock woolly adelgid is destroying streamside forests
throughout the mid-Atlantic and Appalachian region, threatening
water quality and sensitive aquatic species, and posing a
potential threat to valuable commercial timber lands in
Northern New England. Epidemic populations of Southern pine
beetle are ravaging forests in Alabama, Florida, Georgia,
Kentucky, Mississippi, North Carolina, South Carolina,
Tennessee, and Virginia. In 2001, Florida and Kentucky
experienced 146% and 111% increases in beetle populations,
respectively. These epidemic outbreaks of Southern pine beetle
have forced private landowners to harvest dead and dying trees,
both in rural areas and in increasingly urbanized settings. The
presence of the EAB was confirmed in Michigan last year and in
Ohio early this year. This exotic pest is a threat to the over
3.8-billion ash trees found on more than 850,000 acres of
forest land in Ohio alone. It also threatens between 5 and 20
percent of street trees in the upper Midwest.
The legislation would categorically exclude silvicultural
(forestry) assessments of 1,000 acres or less on lands infected
or at imminent risk of being infected by these insects, in an
attempt to glean which techniques are most effective in slowing
their rapid spread. These procedures could not be implemented
on more than 250,000 acres in the aggregate. The Secretary
concerned would be required to consider public input before
implementing these assessments.
TITLE V--EARLY WARNING PROGRAM FOR DISEASE AND
INSECT INFESTATIONS
This title would authorize and direct Federal land managers
to establish early detection programs for insect and disease
infestations, with an emphasis on hardwood forests, so that
agencies can isolate and treat adverse conditions before they
reach epidemic levels.
TITLE VI--HEALTHY FOREST RESERVE
The healthy forests reserve program is a private forest
land conservation initiative that would support the
establishment of conservation easements (ranging in length from
10 years to permanent with a semi-regular buyout option) on one
million acres of declining forest ecosystem types that are
critical to, among other things, the recovery of threatened,
endangered, and other sensitive species. The program, supported
by such groups as Environmental Defense, will facilitate the
voluntary protection and restoration of otherwise imperiled
forest ecosystems, while protecting the rights of private
landowners once an easement has expired under the Endangered
Species Act's safe harbor allowances. The program is authorized
for 5 years at $15 million annually.
Hearings
No hearings were held on H.R. 1904 in the Committee on the
Judiciary.
Committee Consideration
On May 14, 2003, the Committee met in open session and
ordered favorably reported the bill H.R. 1904 without amendment
by a recorded vote of 18 to13, a quorum being present.
Vote of the Committee
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee notes that the
following rollcall votes occurred during the Committee's
consideration of H.R. 1904:
Representative Baldwin offered an amendment to strike
sections 104, 105, 106, and 107 of the bill. The amendment
failed by a recorded vote of 12 to 17.
ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble....................................................... X
Mr. Smith.......................................................
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Bachus...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Ms. Hart........................................................ X
Mr. Flake.......................................................
Mr. Pence....................................................... X
Mr. Forbes......................................................
Mr. King........................................................ X
Mr. Carter...................................................... X
Mr. Feeney...................................................... X
Mrs. Blackburn.................................................. X
Mr. Conyers..................................................... X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee.................................................
Ms. Waters...................................................... X
Mr. Meehan...................................................... X
Mr. Delahunt....................................................
Mr. Wexler...................................................... X
Ms. Baldwin..................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 12 17
----------------------------------------------------------------------------------------------------------------
Chairman Sensenbrenner moved that the bill H.R. 1904 be
favorably reported to the House. The motion passed by a
rollcall vote of 18 to 13.
ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble....................................................... X
Mr. Smith....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Bachus...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Ms. Hart........................................................ X
Mr. Flake.......................................................
Mr. Pence....................................................... X
Mr. Forbes......................................................
Mr. King........................................................ X
Mr. Carter...................................................... X
Mr. Feeney...................................................... X
Mrs. Blackburn.................................................. X
Mr. Conyers..................................................... X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Meehan...................................................... X
Mr. Delahunt....................................................
Mr. Wexler...................................................... X
Ms. Baldwin..................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 18 13
----------------------------------------------------------------------------------------------------------------
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee reports that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 1904, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, May 15, 2003.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1904, the Healthy
Forests Restoration Act of 2003.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Megan
Carroll, who can be reached at 226-2860.
Sincerely,
Douglas Holtz-Eakin.
Enclosure
cc:
Honorable John Conyers, Jr.
Ranking Member
H.R. 1904--Healthy Forests Restoration Act of 2003.
SUMMARY
CBO estimates that H.R. 1904 would authorize the
appropriation of $70 million in 2004 and $350 million over the
2004-2008 period to research and restore forests on Federal,
State, and private lands. Assuming appropriation of the
necessary amounts, CBO estimates that implementing the bill
would cost $12 million in 2004 and $278 million over the next 5
years. Enacting this legislation could affect offsetting
receipts (a credit against direct spending), but CBO estimates
that any such effects would total less than $500,000 a year.
H.R. 1904 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would impose no costs on State, local, or tribal
governments. CBO assumes that States' participation in the
watershed forestry assistance programs authorized by this bill
would be voluntary. Federal funds authorized for those and
other programs would benefit State, local, and tribal
governments.
ESTIMATED COST TO THE FEDERAL GOVERNMENT
The estimated budgetary impact of H.R. 1904 is shown in the
following table. The costs of this legislation fall within
budget function 300 (natural resources and environment).
By Fiscal Year, in Millions of Dollars
------------------------------------------------------------------------
2004 2005 2006 2007 2008
------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Estimated Authorization Level 70 70 70 70 70
Estimated Outlays 12 41 61 80 84
------------------------------------------------------------------------
BASIS OF ESTIMATE
For this estimate, CBO assumes that H.R. 1904 will be
enacted before the end of fiscal year 2003 and that amounts
estimated to be necessary to implement the bill will be
provided each year. Estimates of outlays are based on
historical spending patterns for similar activities. Provisions
that would affect spending subject to appropriation and direct
spending are described below.
Spending Subject to Appropriation
S. 1904 would specifically authorize the appropriation of
$60 million in 2004 and $300 million over the 2004-2008 period
for the Forest Service and the Department of the Interior (DOI)
to support research and restoration of Federal, State, and
private forests. The bill would authorize those agencies to
make grants to eligible entities that use biomass to produce
energy, provide States with technical and financial assistance
to support watershed management, purchase conservation
easements from private landowners, and assess the health of
Federal and private forests. Based on information from the
agencies and historical spending patterns for similar
activities, CBO estimates that these programs would cost $9
million in 2004 and $230 million over the next 5 years.
Based on information from the Forest Service and DOI about
the level of effort required to investigate infestations of
forests by insects and to develop treatments to reduce the risk
of infestation, CBO estimates that S. 1904 would authorize the
appropriation of $10 million a year over the 2004-2008 period.
We estimate that fully funding these activities would cost $3
million in 2004 and $48 million over the next 5 years.
Direct Spending (Including Offsetting Receipts)
Title I would authorize expedited procedures for planning
and conducting certain projects to reduce the risk of wildfires
on certain Federal lands managed by the Forest Service or the
Bureau of Land Management (BLM). Under the bill, those
expedited procedures would limit some environmental assessment
requirements and shorten administrative and judicial appeals.
According to the Forest Service and BLM, the expedited
procedures could affect the timing of some projects that
generate offsetting receipts, such as timber harvests, that the
agencies plan to conduct under current law. Based on
information from the agencies, however, CBO estimates that any
subsequent change in offsetting receipts would total less than
$500,000 annually.
INTERGOVERNMENTAL AND PRIVATE-SECTOR IMPACT
H.R. 1904 contains no intergovernmental or private-sector
mandates as defined in UMRA and would impose no costs on State,
local, or tribal governments. CBO assumes that States
participation in the watershed forestry assistance programs
authorized by this bill would be voluntary. Federal funds
authorized for those and other programs would benefit State,
local, and tribal governments.
PREVIOUS CBO ESTIMATES
On May 9, 2003, CBO transmitted a cost estimate for H.R.
1904 as ordered reported by the House Committee on Agriculture
on May 8, 2003. The two versions of the bill are identical, and
our cost estimates are the same.
On May 7, 2003, CBO transmitted a cost estimate for S. 14,
the Energy Policy Act of 2003, as introduced on April 30, 2003.
A provision in that bill is substantively similar to a
provision of H.R. 1904 that would authorize grants to eligible
entities that use biomass to produce energy, and our estimates
of the cost of such grants ($25 million a year) are the same
under both bills.
ESTIMATE PREPARED BY:
Federal Costs: Megan Carroll (226-2860)
Impact on State, Local, and Tribal Governments: Marjorie Miller
(225-3220)
Impact on the Private Sector: Cecil McPherson (226-2940)
ESTIMATE APPROVED BY:
Peter H. Fontaine
Deputy Assistant Director for Budget Analysis
Performance Goals and Objectives
With respect to the requirement of clause 3(c)(4) of rule
XIII of the Rules of the House of Representatives, the
performance goals and objectives of H.R. 1904 are to improve
the capacity of the Secretary of Agriculture and the Secretary
of the Interior to plan and conduct hazardous fuels reduction
projects for the National Forest System and the Bureau of Land
Management. Once implemented, these projects will protect
communities, watersheds, and certain other at-risk lands from
catastrophic wildfire and will address additional threats to
forest and rangeland health, including insect infestation,
across the landscape.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds the
Constitutional authority for this legislation in article I,
section 8, and article III, section 1, of the Constitution.
Section-by-Section Analysis and Discussion
The following is a section-by-section analysis of the
provisions of the bill falling within the Committee on the
Judiciary's rule X jurisdiction. An analysis of the remaining
provisions may be found in the Agriculture Committee report (H.
Rept. No. 108-96, part I).
Sec. 104. Environmental Analysis. Pursuant to section
104(a) and (b), the Secretary concerned (either Agriculture or
Interior) must plan and conduct authorized hazardous fuels
reduction projects in accordance with the National
Environmental Policy Act of 1969, but she is not required to
develop any alternative to the proposed agency action in the
environmental assessment or impact statement which is otherwise
required by the Act.
Subsections (c) through (e) enumerate public notice and
meeting requirements imposed on the concerned Secretary that
are designed to encourage public participation and to
facilitate collaboration among governments and interested
parties in the development of authorized hazardous fuels
reduction projects.
Subsection (f) requires the Secretary concerned to sign a
decision document for each authorized hazardous fuels reduction
project while subsection (g) states that she must monitor
implementation of each project.
Sec. 105. Special Forest Service Administrative Review
Process. Subsection (a) states that the Secretary of
Agriculture, 90 days after the date of enactment, must issue
final regulations to establish an administrative process that
will serve as the sole means by which a person can seek
administrative redress regarding an authorized hazardous fuels
reduction project. Subsection (b) creates standing for a person
seeking such redress by requiring that she must have submitted
substantive and specific written comments during the
preparation stage of the project.
Subsection (c) makes clear that the Appeals Reform Act of
1993 pertaining to Forest Service administrative appeals does
not apply for those projects contemplated by H.R. 1904.
Sec. 106. Special Requirements Regarding Judicial Review of
Authorized Hazardous Fuels Reduction Projects. Subsection (a)
mandates that any legal challenge to an authorized hazardous
fuels reduction project must be filed before the end of the 15-
day period beginning on the date on which the Secretary
concerned publishes in the local paper of record notice of the
final agency action on the matter. This time limit supersedes
any other filing deadline under law and may not be waived by a
district court.
Subsection (b) states that any preliminary injunction
granted regarding an authorized hazardous fuels reduction
project shall be limited to 45 days. Pursuant to subsection
(c), a court may renew a preliminary injunction, taking into
account congressional intent that the court expedite, to the
maximum extent practicable, the ongoing legal proceedings with
the goal of rendering a final determination on jurisdiction,
and if jurisdiction exists, a final determination on the
merits, within 100 days from the date the proceeding is filed.
Finally, parties are required to submit relevant updates on
any changes that may have occurred during the period of
injunction to a court that is considering a request to renew
the injunction. If the injunction is renewed, the Secretary
concerned must notify the House Committee on Resources and the
House Committee on Agriculture as well as the Senate Committee
on Energy and Natural Resources and the Senate Committee on
Agriculture, Nutrition, and Forestry.
Sec. 107. Standard for Injunctive Relief for Agency Action
to Restore Fire-Adapted Forest or Rangeland Ecosystems. Section
107 states that when an aggrieved person seeks a prohibitory or
mandatory injunction against agency action governing
restoration of a fire-adapted forest or rangeland ecosystem,
including an authorized fuels reduction project, the court
reviewing the request must: (1) consider the public interest in
avoiding long-term harm to the ecosystem; and (2) give
deference to any agency finding that the balance of harm and
the public interest in avoiding the short-term effects of the
agency action is outweighed by the public interest in avoiding
long-term harm to the ecosystem.
Sec. 108. Rules of Construction. Unless otherwise indicated
in title I, and per section 104 of the bill, the planning and
conducting of authorized hazardous fuels reduction projects
must be done in accordance with the National Environmental
Policy Act of 1969. Subsection (a) states that nothing in title
I shall be construed to affect or bias a Secretary's use of
other statutory or administrative authorities to plan or
conduct a hazardous fuels reduction project on Federal land.
There is ongoing litigation within the 9th Circuit
regarding the ``Roadless Area Conservation Rule'' and the
potential prohibition of road construction in approximately
one-third of the National Forest System. Subsection (b) states
that nothing in title I of the bill shall prejudice or
otherwise affect the consideration or disposition of this
action.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italics and existing law in which no change is
proposed is shown in roman):
SECTION 6 OF THE COOPERATIVE FORESTRY ASSISTANCE ACT OF 1978
SEC. 6. WATERSHED FORESTRY ASSISTANCE.
(a) General Authority and Purpose.--The Secretary, acting
through the Forest Service, may provide technical, financial,
and related assistance to State foresters and equivalent State
officials for the purpose of expanding State forest stewardship
capacities and activities through State forestry best-
management practices and other means at the State level to
address watershed issues on non-Federal forested lands and
potentially forested lands.
(b) Technical Assistance To Protect Water Quality.--
(1) In general.--The Secretary, in cooperation with
State foresters or equivalent State officials, shall
engage interested members of the public, including
nonprofit organizations and local watershed councils,
to develop a program of technical assistance to protect
water quality, as described in paragraph (2).
(2) Purpose of program.--The program under this
subsection shall be designed--
(A) to build and strengthen watershed
partnerships that focus on forested landscapes
at the local, State, and regional levels;
(B) to provide State forestry best-
management practices and water quality
technical assistance directly to nonindustrial
private forest landowners;
(C) to provide technical guidance to land
managers and policy makers for water quality
protection through forest management;
(D) to complement State and local efforts
to protect water quality and provide enhanced
opportunities for consultation and cooperation
among Federal and State agencies charged with
responsibility for water and watershed
management;
(E) to provide enhanced forest resource
data and support for improved implementation
and monitoring of State forestry best-
management practices.
(3) Implementation.--The program of technical
assistance shall be implemented by State foresters or
equivalent State officials.
(c) Watershed Forestry Cost-Share Program.--
(1) In general.--The Secretary shall establish a
watershed forestry cost-share program to be
administered by the Forest Service and implemented by
State foresters or equivalent State officials. Funds or
other support provided under such program shall be made
available for State forestry best-management practices
programs and watershed forestry projects.
(2) Watershed forestry projects.--The State
forester or equivalent State official of a State, in
coordination with the State Forest Stewardship
Coordinating Committee established under section 19(b)
for that State, shall annually make awards to
communities, nonprofit groups, and nonindustrial
private forest landowners under the program for
watershed forestry projects described in paragraph (3).
(3) Project elements and objectives.--A watershed
forestry project shall accomplish critical forest
stewardship, watershed protection, and restoration
needs within a State by demonstrating the value of
trees and forests to watershed health and condition
through--
(A) the use of trees as solutions to water
quality problems in urban and rural areas;
(B) community-based planning, involvement,
and action through State, local and nonprofit
partnerships;
(C) application of and dissemination of
monitoring information on forestry best-
management practices relating to watershed
forestry;
(D) watershed-scale forest management
activities and conservation planning; and
(E) the restoration of wetland (as defined
by the States) and stream-side forests and the
establishment of riparian vegetative buffers.
(4) Cost-sharing.--Funds provided under this
subsection for a watershed forestry project may not
exceed 75 percent of the cost of the project. Other
Federal funding sources may be used to cover a portion
of the remaining project costs, but the total Federal
share of the costs may not exceed 90 percent. The non-
Federal share of the costs of a project may be in the
form of cash, services, or other in-kind contributions.
(5) Prioritization.--The State Forest Stewardship
Coordinating Committee for a State shall prioritize
watersheds in that State to target watershed forestry
projects funded under this subsection.
(6) Watershed forester.--Financial and technical
assistance shall be made available to the State
Forester or equivalent State official to create a State
best-management practice forester to lead statewide
programs and coordinate small watershed-level projects.
(d) Distribution.--
(1) In general.--The Secretary shall devote at
least 75 percent of the funds appropriated for a fiscal
year pursuant to the authorization of appropriations in
subsection (e) to the cost-share program under
subsection (c) and the remainder to the task of
delivering technical assistance, education, and
planning on the ground through the State Forester or
equivalent State official.
(2) Special considerations.--Distribution of these
funds by the Secretary among the States shall be made
only after giving appropriate consideration to--
(A) the acres of nonindustrial private
forestland and highly erodible land in each
State;
(B) each State's efforts to conserve
forests;
(C) the acres of forests in each State that
have been lost or degraded or where forests can
play a role in restoring watersheds; and
(D) the number of nonindustrial private
forest landowners in each State.
(e) Authorization of Appropriations.--There is authorized
to be appropriated to carry out this section $15,000,000 for
each of the fiscal years 2004 through 2008.
Markup Transcript
BUSINESS MEETING
WEDNESDAY, MAY 14, 2003
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:01 a.m., in
Room 2141, Rayburn House Office Building, Hon. F. James
Sensenbrenner, Jr. [Chairman of the Committee] presiding.
Chairman Sensenbrenner. The Committee will be in order. A
working quorum is present. At the request of the minority, the
first item on the agenda is H.R. 1904, the ``Healthy Forest
Restoration Act.''
I now call up bill H.R. 1904 for purposes of markup, and
move its favorable recommendation to the full House. Without
objection, the bill will be considered as read, and open for
amendment at any point.
[The bill, H.R. 1904, follows:]
Chairman Sensenbrenner. I yield to the gentleman from
Virginia, Mr. Goodlatte, the Chairman of the Committee on
Agriculture, for an opening statement.
Mr. Goodlatte. Mr. Chairman, I thank you very much. I thank
you for taking up this important legislation. It is very
appropriate that we consider H.R. 1904, the bipartisan
legislation entitled the Healthy Forest Restoration Act of
2003, as we are about to face another season with higher than
average risk of wildfire in many parts of the country.
The legislation before the Committee today is a carefully
crafted compromise that has cleared two other Committees. The
Healthy Forest Restoration Act is intended to save and protect
our forests from destruction, not the opposite, as some are
falsely characterizing it.
H.R. 1904 will allow the sustainable management of forests
for generations to come by giving Federal, State, and private
land managers the flexibility and tools needed to ensure
healthy, sustainable forests. It will do a lot more than just
protect the health of our forests and ecosystems. It will also
provide an economic stimulus for the communities so dependent
on forestland. This bipartisan legislation balances efforts to
restore, protect, and enhance forests, with efforts to promote
economic and entrepreneurial opportunities in communities.
The risks associated with doing nothing are too dangerous.
Our forests, communities, and citizens deserve better. Today we
have the opportunity to make a true difference in the health of
our forests, particularly our communities in and around
forestland, something very beneficial for the public good that
both sides of the aisle should rally around.
H.R. 1904 applies to and helps all regions of the United
States, including public and private lands. It protects
forestland, it protects wildlife, it protects watersheds, it
protects human life, and will positively impact rural
communities, businesses, and schools.
The President has made this a high priority. He addressed
it during his State of the Union address. For these reasons, I
strongly encourage Members to support the underlying
legislation and to oppose all amendments.
Thank you, Mr. Chairman.
Mr. Cannon. Would the gentleman yield?
Mr. Goodlatte. I would be happy to yield.
Mr. Cannon. Thank you, Mr. Goodlatte.
Let me just point out, as the Chairman of the Western
Caucus, this is an issue of vital importance to America. We
have 70 or 75 million acres that are ready to go up. The early
assessments of fire vulnerability this year were low as of a
few months ago, but at least in my State and also I believe in
Idaho and several other States, we have had quite a wet spring.
That has meant that we filled in a couple of these steps on the
fire ladder so that if we get any kind of fires this year, they
can be more devastating than last year. And the last year was
the most devastating fire year in our recent history.
This bill is vital that we move it quickly and not amend
it. I think it is very, very important. Thank you. I yield
back.
[The prepared statement of Mr. Cannon follows:]
Prepared Statement of the Honorable Chris Cannon, a Representative in
Congress From the State of Utah
Mr. Chairman, having represented Utah for more than three terms and
serving now as Chairman of the Western Caucus in the House, I am
particularly attuned to the problems faced by my state and other
Western states with respect to catastrophic wildfires. I want to thank
the Chairman for his attention to, and prompt action, on this important
legislation.
Mr. Chairman, for the people of Utah the threat of forest
conflagrations is not a mere hypothetical possibility but rather a
daily reality. More than 75 per cent of our state is, in fact, federal
land . . . much of it forested and all of it subjected to the seasonal
exigencies that make it particularly susceptible to the kind of
catastrophic wildfires that we witnessed last year.
Given the fact that man and nature must share this volatile
landscape, intelligent management is an absolute necessity to preserve
a beneficial environment for both. Inattention to the buildup of
hazardous fuels in that environment represents a monumental danger that
can lead to the destruction of entire communities and, in some cases,
the loss of forests and watersheds from which it may take a century or
more to recover. Intelligent management also requires that the agencies
entrusted with the responsibility to oversee forested environments be
given the power to act expeditiously to address building dangers.
H.R. 1904 provides the tools and a proper administrative framework
for federal land managers to deal with wildfire dangers. Public
participation in hazardous fuel reduction projects is encouraged and
administrative and judicial review is accelerated in recognition of the
inherent danger to public safety.
One of the principal responsibilities of the Congress is to provide
for public protection and resource conservation. Mr. Chairman, H.R.
1904 does just that at a time when recent events have so dramatically
underscored the dangers to which our Western environment particularly
is subject.
I thank you, and commend you again, for your expeditious
consideration of this legislation and urge its support.
Mr. Goodlatte. Yield to the gentleman from Arizona.
Mr. Flake. I just thank the gentleman for bringing this
forward quickly. We in Arizona lost a half million acres last
year; we stand to lose a lot more this year unless we do
something, and in years to come. So this is important. It has
been, as mentioned, a carefully crafted compromise. We worked
it through the Resources Committee last week, and hope that we
can speedily push it on from here. Thank you.
Mr. Goodlatte. Mr. Chairman, I thank you. And I yield back.
Chairman Sensenbrenner. Who on the minority side wishes to
give an opening statement? The gentlewoman from Wisconsin, you
have an opening statement? Well, if there is none, then,
without objection, all Members may insert opening statements
into the record at this point.
[The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress From the State of Michigan
I first would like to commend the Chairman for exercising the
Committee's jurisdiction on this legislation. When introduced on May 1,
the bill was referred only to the Agriculture and Resources Committees.
This was despite the fact that it contained provisions governing the
judicial review of cabinet department decisions, which would be in the
jurisdiction of the Judiciary Committee. Just last week, after a series
of letters from myself and from the Chairman, the bill was referred to
this Committee, as well.
Having said that, I have serious concerns with the provisions that
are in our jurisdiction, provisions that are unprecedented in federal
law and strip our judiciary of their independence. The bill imposes
strict timelines on when decisions by the executive branch can be
challenged and on when the court must act on such challenges. For
example, a local community would have only fifteen days, including
weekends, to challenge an Interior Department decision allowing
controlled burns. A community would have to learn of the decision,
review it, and agree to challenge it, and file the lawsuit all in that
time period. Finally, the bill requires courts to notify congressional
committees of decisions to extend injunctions that have been imposed on
the government.
While the independence of the judiciary is the prize of our
democracy, restrictions such as these essentially convert the judicial
branch into an arm of the executive. Alexander Hamilton said that the
``independent spirit in the judges'' enables them to stand against the
``ill humors of passing political majorities;'' legislation such as
this demonstrates that today's passing political majority wants to use
its ill humors to gut review of the Administration's environmental
actions.
I hope these provisions can be removed from the bill before it is
reported out of the Committee.
Chairman Sensenbrenner. Only sections 104 through 108
inclusive are within the jurisdiction of the Judiciary
Committee. And the Chair will only entertain amendments to
those sections. Are there any amendments?
Ms. Baldwin. Mr. Chairman, I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.R. 1904, offered by Ms. Baldwin.
[The amendment follows:]
Chairman Sensenbrenner. Point of order is reserved.
The Clerk. Strike sections 104, 105, 106, and 107.
Chairman Sensenbrenner. Does the gentleman persist in his
point of order?
Mr. Goodlatte. No, Mr. Chairman.
Chairman Sensenbrenner. The gentleman withdraws his
reservation. The gentlewoman from Wisconsin is recognized for 5
minutes.
Ms. Baldwin. Thank you, Mr. Chairman.
While the bill's intent to reduce forest fires is laudable,
I believe that this is the wrong approach. It contains
provisions that are not only unnecessary but also unwise and
unprecedented. Section 104 of this bill would effectively scrap
the National Environmental Policy Act, or NEPA, which was
landmark legislation. NEPA is the American public's guarantee
of informed participation in Federal Government decisions that
have an impact on public lands. NEPA operates not by requiring
agencies adopt a particular course of action, but helps them
combat tunnel vision by making them consider alternative
approaches that could cause less environmental harm or produce
greater environmental benefits.
I understand that there is a need to act quickly in some
high-priority fuel reduction projects, but section 104 simply
goes too far by allowing the Forest Service to conduct large-
scale logging projects in areas of little risk without
considering other options.
Section 105 also gives the Forest Service a blank check in
designing an appeals process. Conceivably, the agency could
give citizens only a few days to participate in the appeals
process, impose substantial filing fees, or allow projects to
proceed before completion of the process. This section creates
a completely undefined process. The American public deserves to
know how their voice will be heard when it comes to projects
that may be in their own communities.
Sections 106 and 107 seek to restrict a core principle of
our democracy, the right of Americans to seek redress in court
for grievances involving the Federal Government. Section 106
attempts to limit the amount of time the public has to file a
legal challenge to a mere 15 days, and this time limit which
counts weekend days and holidays, is not long enough for the
public to grasp how projects will affect the land they live on,
the water they drink, and the air they breathe. This 15-day
deadline could also create a perverse incentive to file a
lawsuit against projects, since failing to do so closes the
courthouse door thereafter.
Section 106 also attempts to place limitations on the time
judges have to review cases and mandates they inform
congressional Committees whenever they extend jurisdictions
beyond 45 days. These new provisions should not be overlooked
by those who say our court system is already overworked and
overburdened.
And, finally, section 107 seeks a change in American legal
standards by requiring courts give deference to agency findings
regarding the balance of harms in deciding whether to enter a
temporary restraining order, preliminary injunction, or
permanent injunction in any court challenge. The standard is
unprecedented in any prior law and seems designed to allow
Federal agencies to determine if its actions are in the public
interest and, in effect, have the determination to be presumed
valid in court.
Based on my background of the Constitution's separation-of-
powers doctrine, this may well intrude upon the equitable
powers of the judiciary. It is my understanding that the bill
sponsor, Mr. McInnis, has agreed to modify this language to
direct Federal judges to give only special weight to agency
claims instead of deference. This would still be unacceptable.
Judges should not be prohibited from exercising their own
judgments in matters that affect the public health and our
natural resources.
So I urge my colleagues to accept this amendment to strike
sections 104 through 107 from this bill, and yield back.
Mr. Goodlatte. Mr. Chairman.
Chairman Sensenbrenner. The gentleman from Virginia.
Mr. Goodlatte. Thank you, Mr. Chairman. I move to strike
the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Goodlatte. I thank the Chairman, And I speak in strong
opposition to this amendment. The provisions that the
gentlewoman would strike are absolutely critically important to
this legislation. As the gentleman from Utah noted, we are
heading into the fire season. And one of the things that needs
to be done is to make sure that sensitive areas in our forests
are properly treated, thinned and other things done, to make
sure that we have natural fires that occur on the ground and
not these catastrophic wildfires that you have seen on the news
for the last few years that consume entire forests and
thousands of acres.
While the difference between the one and the other is the
ability to proceed administratively in a reasonable and timely
fashion, this legislation creates a reasonable process under
which the Forest Service can go forward with public comment,
with administrative appeal, with the right to bring the action
into court, but in a more timely fashion. It does some very
commonsense things, like requiring that an individual who
objects to a forest plan--and believe me, there are individuals
who object to any kind of ground-disturbing activity of any
kind by the Forest Service--they can file an appeal and not
raise the key issues in the process until late in the process
when it goes to court. That is not the normal judicial legal
procedure, where, if you are engaged in a trial, you have to
put all your evidence and all your law on the table in the
trial; and, if you want to appeal it, you have to appeal based
upon the record of the trial. Right now, in a Forest Service
appeal, you don't need to do that. You can wait until you get
to court to raise de novo issues, brand-new issues in what is
effectively the appellate process.
What this has done is turned the management of our forests
away from the forest professionals and toward the management of
the forests by our courts, a very, very bad thing; has caused
tremendous problems, particularly in the West but it has spread
to include errant judicial decisions in other parts of the
country as well. Let's present to the courts a judicial
foundation, a record on which they can make their decision.
In addition, what this does is it makes the process more
compact. And that is important, because if you are trying to
get in to deal with a disease or insect infestation, a
particularly severe problem in the eastern and southern United
States, by the time you have been through the current process--
and, by the way, this does not eliminate NEPA by any means. But
by the time you get through current process, it is too late.
This bill only applies to 250,000 acres out of the hundreds
of millions of acres owned by the Forest Service with regard to
the insect and disease infestation issue. And with regard to
fighting forest fires, it only applies to 20 million of those
hundreds of millions of acres. So, in effect, it is a good way
to get at the most severe places, and also a good way to show
that this is a better process than the one that we have been
using in the past that can grind on for years, leaving these
forests untended and continuing to allow these catastrophic
wildfires.
So I urge my colleagues to oppose this amendment.
Mr. Cannon. Would the gentleman yield?
Mr. Goodlatte. I would be happy to yield.
Mr. Cannon. Thank you. I may ask for my own time later on,
but let me just point out that what we are doing in this bill
is quite limited and very thoughtful. This is not like the
elimination of judicial review that happened as to the Black
Forest in legislation that was inserted last year in
appropriations language that actually totally denied the NEPA
process. Many of us think that something like that would be
appropriate because of the magnitude of the problem that we are
faced with right now. But what we are doing here is actually
maintaining a process and maintaining much of what we have
learned that is good in the NEPA and other bills. But the
limitations are significant in that it allows the Federal
Government to do something this year while we have a crisis,
and hopefully prevent that, and get back to a different kind of
process.
But the key thing here is that we are not doing a draconian
thing like prohibiting judicial review of these kinds of
decisions. That has happened, there is precedent for that,
there is good reason for that, and we may need to come back and
take a look at that kind of approach. Thank you.
Mr. Goodlatte. I yield back, Mr. Chairman.
Mr. Watt. Mr. Chairman.
Chairman Sensenbrenner. The gentleman from North Carolina.
Mr. Watt. I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Watt. Can I just ask Mr. Goodlatte a question about the
language on page 17, lines 6 through 14; if he might be able to
tell me what that means and why we would be putting such a
provision as that into statute?
Mr. Goodlatte. Well, as I mentioned in my remarks just a
few minutes ago, one of the purposes of this legislation is to
make sure that because of the emergency nature of treating
these acres, the acres most subject to catastrophic wildfire,
if you can't get to them quickly, then the wildfires occur, the
devastation occurs, and the legislation doesn't do any good. So
this is simply a directive to our courts to expeditiously
handle the appeals process.
Mr. Watt. I think I could understand a directive, but I
don't read this to be a directive. It says Congress intends and
encourages any court in which is filed a lawsuit or appeal to
do certain things and to dispose of it timely, within 100 days.
But I don't see any directive there. And I guess the question I
am raising is whether we are just leaving--I mean, without a
directive or something--without a directive, if a directive is
appropriate, it just seems to me that we are leaving pretty
much the state of law as it is. And I don't know, I don't think
I have seen a statute that encourages the courts to do
something. I mean, if we think it is so important, why wouldn't
we direct it?
Mr. Goodlatte. Would the gentleman yield?
Mr. Watt. I yield, yeah.
Mr. Goodlatte. I thank the gentleman for yielding. The
gentleman is quite correct that this is different than a number
of other provisions in the bill that do direct the courts to a
different process. This one gives the courts some more
flexibility. There might be some circumstances in which they
might need to exceed the 100 days. Therefore, without trying to
tie them too closely and trying to define a circumstance that
in some instances might be unworkable, we strongly encourage
them to get these done within 100 days. But we do not require
it.
Mr. Watt. Well, just reclaiming my time. I guess I am
ambivalent about this. I mean, obviously every lawsuit that
gets into court, you would like for the court to expedite it.
And there are some cases where we direct the courts to
expedite. But I confess, I have not seen a provision quite like
this one that says we would like for you to do it but we are
not going to direct you to do it, which basically says nothing.
Mr. Goodlatte. Would the gentleman yield further on that
point?
Mr. Watt. Yes. I would be happy to yield.
Mr. Goodlatte. If the gentleman would turn his attention to
the preceding page, page 16.
Mr. Watt. You mean you did it again and I missed it?
Mr. Goodlatte. No, no. Not at all. And I think this will
help clarify the situation. Section 106(b)(1) makes a 45-day
action on injunctions a requirement. The court must act within
that time. The reason is that, with an injunction, that is a
complete holdup on taking any action on treating the land.
Mr. Watt. And I take it that provision is contrary to other
provisions in the law related to injunctions?
Mr. Goodlatte. That provision is a specific directive.
Mr. Watt. But it is different than other general injunctive
law in terms of its time frames.
Mr. Goodlatte. I am sure there are different provisions in
other sections of the law. This is 45 days to get at the issue
of whether one can proceed. The court has 45 days to make that
determination. We would like to get to the underlying final
decision expeditiously as well, but that is not as critical.
Therefore, we ask them to do it in 100 days but we don't
require it. The 45 days, the initial finding on whether action
is emergent in nature and therefore needs to take place
expeditiously, that is mandated in this bill.
Mr. Watt. Can I ask one other question? Has there been any
hearings about this part of the bill that is under the
Judiciary Committee's jurisdiction?
Mr. Goodlatte. There have been numerous hearings on this
legislation in both the Resources Committee and in the
Agriculture Committee.
Mr. Watt. I want to know whether there have been any
hearings on the part of the bill that is under the jurisdiction
of the Judiciary Committee.
Chairman Sensenbrenner. Will the gentleman from North
Carolina yield?
Mr. Watt. Yes, I will yield.
Chairman Sensenbrenner. We got this bill last Friday when
the other Committee filed its report. The sequential that was
given to us by the Speaker expires on Friday of this week.
There really hasn't been time for a hearing. And if we don't do
a markup, then we lose jurisdiction and the bill goes out on
the floor. The gentleman's time has expired.
Mr. Watt. Can I ask unanimous consent for just 30
additional seconds?
Chairman Sensenbrenner. Without objection.
Mr. Watt. And I think the problem I am having here, Mr.
Chairman, is the tail seems to be wagging the dog here.
Whenever we get a directive from the Speaker to do something
that is inconsistent with our responsibilities as Members of
this Committee, it just seems we go running around and doing
things that have not been well thought out.
Chairman Sensenbrenner. If the gentleman will yield. The
Chair fought to get a sequential to this Committee. The Speaker
and the other Committees did not want this Committee to have a
sequential at all.
Mr. Watt. And, Mr. Chairman, I have----
Chairman Sensenbrenner. I got us a week, and we are doing
what we can in the time that is available.
Mr. Watt. I am not blaming the Chair, Mr. Chairman. I am
sure you did whatever you could, but all you did was get us
time to go through an irrational process that legitimizes
irrationality. And we don't have any idea whether these
timetables are consistent with what is reasonable under the
law. And without some kind of hearings to hear the arguments on
both sides or another, I honestly don't know whether I side
with Ms. Baldwin or Mr. Goodlatte.
Chairman Sensenbrenner. Well, if the gentleman will yield
further. If we delay, as of Friday this bill floats away from
us and goes out on the floor. You know, that is what the rules
are. The gentleman's time has expired again.
Ms. Lofgren. Mr. Chairman.
Chairman Sensenbrenner. The gentlewoman from California.
Ms. Lofgren. I move to strike the last word.
Chairman Sensenbrenner. The gentlewoman is recognized for 5
minutes.
Ms. Lofgren. I support the amendment, and I would like to
go beyond the issues raised by my colleague from North
Carolina, which is into the structure of the bill that is not
specifically before us but that does relate to us, because it
relates to the type of judicial review. You know, we learned
that Smoky the Bear actually didn't do America any favors
because we built up a tremendous amount of dead wood in
America's forests. I have forests near my district, and we all
are aware that this is an issue that needs to be dealt with.
But all of the good science indicates that the way to address
that is to remove the undergrowth and the small trees in a plan
that should be vigorously funded and accomplished, and not to
go after the older trees; and that older trees that rot should
be allowed to rot into the forest for the health of the forest.
And, unfortunately, if you take a look at the other parts
of the bill--you know, why didn't I think of that? We are
against forest fires, so let us cut down all the trees. I mean,
what a solution. That is basically what the Interior Department
is prepared to do. I think it is very clear that they are in
the pocket of the logging companies. And the only--the way this
is crafted, the only protection that Americans are going to get
from the logging companies that have captured the
Administration and the Interior Department is in the judiciary.
And what this part of the bill does is eliminate even that
protection for the American people and the forests for the
future of this country.
So I think this is pretty outrageous. I hope that all
Members will vote no. And I would yield to the gentleman from
North Carolina.
Mr. Watt. I thank the gentlelady for yielding.
The point I want to make is much, much narrower than the
one she is making. I would agree that maybe other Committees
ought to be the Committees that make these decisions about how
you control forest fires and the public policy considerations.
But when it comes to our Committee--and then they say let us
prostitute the courts to achieve whatever our objectives are or
prostitute the process to achieve whatever our objectives are--
then I think it is our Committee's responsibility to look at
whether the process is rational, the timing is rational. And I
don't think we can do that in good faith to the American people
and say that we as the Judiciary Committee have done our job
appropriately, regardless of how we come out on those issues,
without having the time to do it.
And so I think we end up appearing that we are just
engaging in a charade that--and that is not an indictment of
the Chairman--the Chairman probably got what he could--but it
is an indictment of the way we are running this place around
here that says that whatever the bottom line the leadership
decides is important is more important than the democratic and
legislative process under which we are operating.
And I yield back. And for that reason, I am going to vote
for Ms. Baldwin's amendment just because I don't think that--
she takes these provisions out, and it seems to me that that is
a better alternative than going through a charade of a process
to change the process by which the court considers all of these
things.
I will yield back to the gentlewoman.
Ms. Lofgren. I thank the gentleman. I would just note
that--and I do appreciate the Chairman's fight for our
jurisdiction. I think all Members appreciate the fact that he
has been aggressive in protecting our jurisdiction. But when
you look at the scope of the review in addition to now the
constraint of time, this is just a carte blanche to logging
companies to wipe out forests. And I hope that Members will
vote no.
And I yield back the balance of my time.
Mr. Conyers. Mr. Chairman.
Chairman Sensenbrenner. The gentleman from Michigan.
Mr. Conyers. I rise to strike the last.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Conyers. This is troublesome legislation. I commend the
Chairman for fully exercising the Chair's ability for us to
even be considered in this log-rolling process.
Now, so what are we to do this Monday morning? And that is
the question. And the question is that if we don't act now,
what little license we have been granted will be removed. And
so with all due respect, Mr. Chairman, I would like to
recommend that we both hold hearings and have a markup all
between now and Thursday afternoon when we depart from this
place. It may crowd our schedules, but that is what the
majority leader has foisted on us.
Mr. Watt. Would the gentleman yield just for a question?
Mr. Conyers. Of course.
Mr. Watt. Would just as acceptable an alternative not be to
accept Ms. Baldwin's amendment and consider those parts of the
bill separately in a time frame that we could act on? If the
bill doesn't have the provisions in the bill, then they are not
going to go to the floor for consideration. So it seems to me
that that would be an alternative, too, although I am not--I am
just thinking as we go along here.
Mr. Conyers. No, I appreciate that, Mr. Watt, and I think
that is perfectly acceptable. What we have to do to give
additional support to the Chair of Judiciary is that they can't
keep running this crap on us. You know, once we do this, what
will it be next week or whenever?
So all I am suggesting is that somehow we craft a way--what
I am proposing, that the Chair--and if we need a few minutes on
this, I would be happy to accede to a recess. But between my
proposal and the gentleman from North Carolina's proposal, at
least we will retain as much integrity for the Committee as is
possible under this circumstance. I have no reason not to want
to accept the Baldwin amendment, but of course that is giving
people about as much notice as the leadership gave us.
So, what do you think, Mr. Chairman? I yield to you.
Chairman Sensenbrenner. Sensenbrenner's law says this: When
one puts snout in trough too far, one runs the risk of getting
head chopped off.
My fear is--first of all, it is a given that there will be
no extensions given on this sequential referral. I think that
we are doing what we can in the time that we have available to
us, and everybody will have a chance to put their views into a
Committee report and that will be available to the Members when
the bill comes to the floor next week.
Also, the Rules Committee, I am sure, will entertain
amendments to make either the Baldwin amendment or something
similar to that in order when the bill comes up.
Mr. Conyers. Unfortunately, my experience with the Rules
Committee runs exactly counter to that proposal. But maybe you
know something that I don't.
Now, back to the Conyers proposal, which is this: Is that
we hold hearings tomorrow; that we hold a markup either later
that day, and we--and then we report the bill. I don't see why
we can't do that. But to do this without a single witness--and,
by the way, I have counted the makeup of the Committee. So, I
mean, this is almost like a double whammy. I mean, first the
leadership does it to us, and then in a Committee that is made
up of 21/16, we act like we are trying, really trying to figure
out how this is going to work out, when most of the votes in
this Committee normally run in a very partisan----
Chairman Sensenbrenner. The gentleman's time has expired.
The gentleman from Virginia.
Mr. Scott. Mr. Chairman, move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Scott. Mr. Chairman, I want the record to be clear that
this Member, and I assume a lot of others, want to express our
appreciation for you fighting for the little bit of
jurisdiction that we got. But as the gentleman from Michigan
indicated, it is very difficult under these constraints to do
the kind of work that we need to do. So I would hope that we
adopt the suggestion from the gentleman from Michigan, and I
yield to him for any comments that he might have.
Mr. Conyers. Thank you, Mr. Scott.
Well, this bill was introduced on May 1, referred to the
Agriculture Committee, despite the fact that it contained
provisions governing the judicial review of Cabinet department
decisions, which are within the jurisdiction of the Committee
on Judiciary. Last week, after communications back and forth
from the Chairman and myself, the bill was referred to this
Committee as well.
Now, there are serious concerns with the provisions that
are in our jurisdiction, provisions unprecedented in law, and
that in effect strip the judiciary of its independence by
imposing time lines on decisions by the executive branch which
can be challenged when the court must act on such challenges.
An example: A local community has 15 days, including
weekends, to challenge an Interior Department decision allowing
controlled burns. They may not be able to even get into court
in that short length of time, much less be prepared. A
community would have to learn of these decisions, review it,
agree to challenge it, get a lawyer, file a lawsuit, all within
that time period.
Now, this should insult the integrity of every lawyer on
this Committee and everyone that is not a lawyer. And then it
requires courts to notify the congressional Committees of
decisions to extend injunctions that have been imposed on the
Government.
Mr. Cannon. Would the gentleman yield?
Mr. Conyers. Of course.
Mr. Cannon. I thank my friend. Two points that are, I
think, important. In the first place, let me just remind the
gentleman that we have a crisis coming. We are now----
Mr. Conyers. Which crisis?
Mr. Cannon. We have a particular fire crisis coming, and we
also have a concern about the probity of what we do in this
Committee. But we have, and now in Utah, grass that is a couple
feet high. We are in the middle of May.
Mr. Conyers. But are you saying that that means that we
can't hold a hearing?
Mr. Cannon. It is----
Mr. Conyers. Between today and tomorrow? If it is so
urgent, my friend, if it is so urgent, why don't we all adjust
our schedules accordingly? I mean, what are you talking about?
It is urgent, but yet we shouldn't have a hearing.
Mr. Cannon. My point, sir, is that the bill needs to move.
And the second part----
Mr. Conyers. And that is my point, too. Wait a minute. I am
for the bill moving. I am not trying to delay the bill. I am
talking about today and tomorrow. What are you doing? It is
your State. It is your fire disaster. Don't you think the rest
of your colleagues ought to have a hearing and listen to
somebody tell us about this? You don't. And I retake my time.
That is it. Thank you.
I also have a statement in support of the Baldwin amendment
that I would like to introduce into the record.
Chairman Sensenbrenner. Without objection.
[The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress From the State of Michigan
I support this amendment, which strikes out the provisions of the
bill that, with one hand, give the executive branch unchecked
administrative power and, with the other, take away the rights of
citizens and the independence of our judiciary.
Sections 104 and 105 of the bill give the executive branch
virtually unchecked authority to establish administrative review and
appeals procedures. For example, section 105 gives the Agriculture
Secretary a blank check for streamlining the process for administrative
appeals of agency determinations. The Secretary would not even be
required to read any comments that might be filed with the Department.
Sections 106 and 107 intrude on the rights of litigants and the
courts by imposing rigid deadlines for filing court challenges to and
ruling upon agency decisions. Section 106 says any lawsuit to challenge
a decision by an agency must be filed within 15 days of the issuance of
that decision. If the government issues a rule allowing a controlled
burn of trees, a local community near that area would have 15 days,
including weekends and holidays, to hear of the decision, review it,
and file a lawsuit challenging it.
Moreover, these provisions could have ramifications far beyond this
bill. First, to comply with the rigid deadlines of the legislation,
courts would have to put on hold any cases dealing with civil rights,
workers' rights, civil liberties, etc. Second, such egregious and anti-
plaintiff proposals set a dangerous precedent for giving undue
deference to agency decisions on civil rights matters.
I urge my colleagues to support this amendment.
Mr. Conyers. And I return my time.
Chairman Sensenbrenner. The question is on the Baldwin
amendment. Those in favor will say aye.
Mr. Conyers. Record vote.
Chairman Sensenbrenner. Opposed, vote no.
The noes appear to have it.
Ms. Baldwin. rollcall.
Chairman Sensenbrenner. rollcall will be ordered.
Those in favor of the amendment by the gentlewoman from
Wisconsin will, as your names are called, answer aye.
Those opposed, no.
And the clerk will call the roll.
The Clerk. Mr. Hyde.
[No response.]
The Clerk. Mr. Coble.
Mr. Coble. No.
The Clerk. Mr. Coble votes no.
Mr. Smith.
[No response.]
The Clerk. Mr. Gallegly.
Mr. Gallegly. No.
The Clerk. Mr. Gallegly, no.
Mr. Goodlatte.
Mr. Goodlatte. No.
The Clerk. Mr. Goodlatte, no.
Mr. Chabot.
Mr. Chabot. No.
The Clerk. Mr. Chabot, no.
Mr. Jenkins.
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no.
Mr. Cannon.
Mr. Cannon. No.
The Clerk. Mr. Cannon, no.
Mr. Bachus.
Mr. Bachus. No.
The Clerk. Mr. Bachus, no.
Mr. Hostettler.
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no.
Mr. Green.
Mr. Green. No.
The Clerk. Mr. Green, no.
Mr. Keller.
Mr. Keller. No.
The Clerk. Mr. Keller, no.
Ms. Hart.
Ms. Hart. No.
The Clerk. Ms. Hart, no.
Mr. Flake.
[No response.]
The Clerk. Mr. Pence.
Mr. Pence. No.
The Clerk. Mr. Pence, no.
Mr. Forbes.
[No response.]
The Clerk. Mr. King.
Mr. King. No.
The Clerk. Mr. King, no.
Mr. Carter.
Mr. Carter. No.
The Clerk. Mr. Carter, no.
Mr. Feeney.
Mr. Feeney. No.
The Clerk. Mr. Feeney, no.
Mrs. Blackburn.
Mrs. Blackburn. No.
The Clerk. Mrs. Blackburn, no.
Mr. Conyers.
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye.
Mr. Berman.
[No response.]
The Clerk. Mr. Boucher.
[No response.]
The Clerk. Mr. Nadler.
[No response.]
The Clerk. Mr. Scott.
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye.
Mr. Watt.
Mr. Watt. Aye.
The Clerk. Mr. Watt, aye.
Ms. Lofgren.
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren, aye.
Ms. Jackson Lee.
[No response.]
The Clerk. Ms. Waters.
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye.
Mr. Meehan.
Mr. Meehan. Aye.
The Clerk. Mr. Meehan, aye.
Mr. Wexler.
Mr. Wexler. Aye.
The Clerk. Mr. Wexler, aye.
Ms. Baldwin.
Ms. Baldwin. Aye.
The Clerk. Ms. Baldwin, aye.
Mr. Weiner.
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye.
Mr. Schiff.
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye.
Ms. Sanchez.
Ms. Sanchez. Aye.
The Clerk. Ms. Sanchez, aye.
Mr. Chairman.
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Are there additional Members who
wish to cast or change their votes? The gentleman from New
York, Mr. Nadler.
Mr. Nadler. Aye.
The Clerk. Mr. Nadler, aye.
Chairman Sensenbrenner. Further Members who wish to cast or
change their votes? If not, the clerk will report.
The Clerk. Mr. Chairman, there are 12 ayes and 17 noes.
Chairman Sensenbrenner. The amendment is not agreed to.
Are there further amendments? If there are no further
amendments, a reporting quorum is present.
The question occurs on the motion to report the bill, H.R.
1904, favorably.
Those in favor will say aye.
Opposed, no.
The ayes appear to have it.
Mr. Conyers. Record vote.
Chairman Sensenbrenner. A rollcall will be ordered.
Those in favor of reporting H.R. 1904 favorably will, as
your names are called, answer aye.
Those opposed, no.
And the clerk will call the roll.
The Clerk. Mr. Hyde.
[No response.]
The Clerk. Mr. Coble.
Mr. Coble. Aye.
The Clerk. Mr. Coble, aye.
Mr. Smith.
[No response.]
The Clerk. Mr. Gallegly.
Mr. Gallegly. Aye.
The Clerk. Mr. Gallegly, aye.
Mr. Goodlatte.
Mr. Goodlatte. Aye.
The Clerk. Mr. Goodlatte, aye.
Mr. Chabot.
Mr. Chabot. Aye.
The Clerk. Mr. Chabot, aye.
Mr. Jenkins.
Mr. Jenkins. Aye.
The Clerk. Mr. Jenkins, aye.
Mr. Cannon.
Mr. Cannon. Aye.
The Clerk. Mr. Cannon, aye.
Mr. Jenkins. Aye.
The Clerk. Mr. Jenkins, aye.
Mr. Bachus.
[No response.]
The Clerk. Mr. Hostettler.
Mr. Hostettler. Aye.
The Clerk. Mr. Hostettler, aye.
Mr. Green.
Mr. Green. Aye.
The Clerk. Mr. Green, aye.
Mr. Keller.
Mr. Keller. Aye.
The Clerk. Mr. Keller, aye.
Ms. Hart.
Ms. Hart. Aye.
The Clerk. Ms. Hart, aye.
Mr. Flake.
[No response.]
The Clerk. Mr. Pence.
Mr. Pence. Aye.
The Clerk. Mr. Pence, aye.
Mr. Forbes.
[No response.]
The Clerk. Mr. King.
Mr. King. Aye.
The Clerk. Mr. King, aye.
Mr. Carter.
Mr. Carter. Aye.
The Clerk. Mr. Carter, aye.
Mr. Feeney.
Mr. Feeney. Aye.
The Clerk. Mr. Feeney, aye.
Mrs. Blackburn.
Mrs. Blackburn. Aye.
The Clerk. Mrs. Blackburn, aye.
Mr. Conyers.
Mr. Conyers. No.
The Clerk. Mr. Conyers, no.
Mr. Berman.
[No response.]
The Clerk. Mr. Boucher.
[No response.]
The Clerk. Mr. Nadler.
Mr. Nadler. No.
The Clerk. Mr. Nadler, no.
Mr. Scott.
Mr. Scott. No.
The Clerk. Mr. Scott, no.
Mr. Watt.
Mr. Watt. No.
The Clerk. Mr. Watt, no.
Ms. Lofgren.
Ms. Lofgren. No.
The Clerk. Ms. Lofgren, no.
Ms. Jackson Lee.
Ms. Jackson Lee. No.
The Clerk. Ms. Jackson Lee, no.
Ms. Waters.
Ms. Waters. No.
The Clerk. Ms. Waters, no.
Mr. Meehan.
Mr. Meehan. No.
The Clerk. Mr. Meehan, no.
Mr. Delahunt.
[No response.]
The Clerk. Mr. Wexler.
Mr. Wexler. No.
The Clerk. Mr. Wexler, no.
Ms. Baldwin.
Ms. Baldwin. No.
The Clerk. Ms. Baldwin, no.
Mr. Weiner.
Mr. Weiner. No.
The Clerk. Mr. Weiner, no.
Mr. Schiff.
Mr. Schiff. No.
The Clerk. Mr. Schiff, no.
Ms. Sanchez.
Ms. Sanchez. No.
The Clerk. Ms. Sanchez, no.
Mr. Chairman.
Chairman Sensenbrenner. Aye.
The Clerk. Mr. Chairman, aye.
Chairman Sensenbrenner. Additional Members who wish to cast
or change their vote? The gentleman from Texas, Mr. Smith.
Mr. Smith. Vote aye.
The Clerk. Mr. Smith, aye.
Chairman Sensenbrenner. The gentleman from Alabama, Mr.
Bachus.
Mr. Bachus. Aye.
The Clerk. Mr. Bachus, aye.
Chairman Sensenbrenner. Further Members who wish to cast or
change their vote? If not, the clerk will report.
The Clerk. Mr. Chairman, there are 18 ayes and 13 nays.
Chairman Sensenbrenner. And the motion to report favorably
is agreed to. Without objection, the Chairman is authorized to
move to go to conference pursuant to House rules. Without
objection, the staff is directed to make any technical and
conforming changes, and all Members will be given 2 days, as
provided by House rules, in which to submit dissenting
supplemental or minority views.
Dissenting Views
We support initiatives to protect our communities from the
threat of wildfires. We dissent from H.R. 1904, the ``Healthy
Forests Restoration Act of 2003,'' because that is not what
this legislation would do. The bill, in the guise of limiting
an alleged boom in dilatory challenges of government measures
to reduce wildfire threats,\1\ instead gives the executive
branch unfettered administrative discretion to implement land
management decisions, deters administrative and Federal court
reviews of such actions, harms plaintiffs' rights, and intrudes
on the independence of our courts.\2\
---------------------------------------------------------------------------
\1\ The White House, Healthy Forests: An Initiative for Wildfire
Prevention and Stronger Communities (Aug. 22, 2002). Available at:
http://www.whitehouse.gov/infocus/healthyforests/Healthy--Forests--
v2.pdf.
\2\ See H.R. 1904, Sec. Sec. 104-107. At the full Committee markup
on the bill, Rep. Tammy Baldwin (D-WI) offered an amendment that would
have struck the objectionable sections, but the Majority unfortunately
rejected it. See Markup of H.R. 1904, House Comm. on the Judiciary,
108th Cong., 2d Sess. (May 14, 2003) [hereinafter H.R. 1904 Markup].
---------------------------------------------------------------------------
Such provisions are even more egregious considering that
the General Accounting Office has found few, if any, delays in
the implementation of projects to reduce wildfire threats.\3\
As stated earlier, the alleged existence of such delays was the
rationale for these provisions. It is for these reasons that
H.R. 1904 is opposed by numerous organizations concerned with:
---------------------------------------------------------------------------
\3\ See, e.g., Few Wildfire Project Delays, GAO Finds, Wash. Post,
May 15, 2003, at A27 (``The conclusion [of the General Accounting
Office report] runs counter to the case the Bush administration and
Republicans in Congress have made for scaling back studies and
appeals.'').
(1) Lthe enforcement of our environmental laws
(including the Natural Resources Defense Council
(NRDC), The Wilderness Society, Friends of the Earth,
the Endangered Species Coalition, the National Audobon
Society, the World Wildlife Fund (WWF), American Lands
Alliance, Defenders of Wildlife, EarthJustice, the
Center for Biological Diversity, the National
Environmental Trust, the Sierra Club, the National
Forest Protection Alliance, and the U.S. Public
Interest Research Group).\4\
---------------------------------------------------------------------------
\4\ Letter from Natural Resources Defense Council et al., to U.S.
Representatives (May 8, 2003) [hereinafter NRDC Letter].
(2) Lthe fair administration of justice and the
enforcement of our civil rights laws (including ADA
Watch/National Coalition for Disability Rights,
Alliance for Justice, Americans for Democratic Action,
the Bazelon Center for Mental Health Law, the Mexican
American Legal Defense and Educational Fund (MALDEF),
the National Association for the Advancement of Colored
People (NAACP), National Alliance of Postal and Federal
Employees, the National Organization for Women (NOW),
People for the American Way, Planned Parenthood
Federation of America, and the Religious Coalition for
Reproductive Choice); \5\ and
---------------------------------------------------------------------------
\5\ Letter from ADA Watch et al., to U.S. Representatives (May 13,
2003) [hereinafter ADA Watch Letter].
---------------------------------------------------------------------------
A. THE LEGISLATION WOULD GIVE UNCHECKED ADMINISTRATIVE AUTHORITY TO THE
EXECUTIVE BRANCH
A primary concern with H.R. 1904 is that it proposes to
give the executive branch virtually unchecked authority to
implement decisions and to consider administrative appeals of
such decisions. For instance, the bill empowers the relevant
cabinet department by stating it would no longer be required to
consider any alternatives to an original proposal when issuing
forest-related decisions.\6\ The heart of the environmental
analysis process is for the agency to consider alternatives to
its plans so that the best plan can be chosen; \7\ this bill
essentially turns that concept on its head and says that an
agency's first idea is the best idea.
---------------------------------------------------------------------------
\6\ H.R. 1904, Sec. 104(b).
\7\ NRDC Letter. See also Letter from Lois Schiffer, Adjunct Prof.
of Environmental Law, Georgetown University Law Center, et al., to the
Honorable James Hansen, Chairman, House Comm. on Resources, & the
Honorable Scott McInnis, Chairman, House Subcomm. on Forests & Forest
Health (Oct. 7, 2002) (analyzing similar provision in earlier, yet
similar, legislation).
---------------------------------------------------------------------------
The legislation goes further and gives agencies additional
power in quashing administrative appeals of their decisions.
Current law, in the form of the Appeals Reform Act, imposes
strict requirements on the process for administrative appeals
of U.S. Forest Service decisions, such as letting public
participants submit written or oral comments, requiring Forest
Service employees to offer to meet with any individual who
files an appeal, and the triggering of an automatic 45-day stay
of Forest Service decisions.\8\ The bill explicitly vitiates
these protections, such that the Forest Service would be
empowered not only to dismiss certain public comments and the
individuals who submit them but also to proceed with its plans
immediately.\9\
---------------------------------------------------------------------------
\8\ 16 U.S.C. 1612 note.
\9\ See H.R. 1904, Sec. 105(c).
---------------------------------------------------------------------------
B. THE LEGISLATION WOULD HARM PLAINTIFFS' RIGHTS AND TIE
THE HANDS OF THE COURTS
In addition, the legislation would restrict the rights of
all Federal court plaintiffs and subject Federal courts to
rigid deadlines. The bill's requirement that any actions filed
against the United States to challenge hazardous fuels
reduction projects be filed within fifteen days (including
weekends and holidays) of the final notice of such projects
would make it impossible to seek redress for improper or
illegal agency decisions.\10\ Moreover, the bill expressly
provides that neither the government nor a court could waive
the filing deadline under any circumstance.\11\ As a result, if
the government issues a decision authorizing an entity to
conduct a controlled burn or cut timber in a certain wooded
area, a community living near that wooded area would have
fifteen days to learn of the decision, determine what it does,
determine whether it affects the community's residents, decide
whether to file a legal action, retain an attorney, prepare the
legal documents, and file the action against the entity that is
exercising the decision. The fifteen-day deadline would apply
regardless of weekends, holidays, or even in the event the
residents of the community were evacuated from their homes
because of some emergency.
---------------------------------------------------------------------------
\10\ H.R. 1904, Sec. 106(a).
\11\ Id.
---------------------------------------------------------------------------
Moreover, the fifteen-day limitation would apply to every
other Federal law. More specifically, it would supercede any
other provision in any law that pertains to notices of intent
to file suit or to filing deadlines.\12\ For example, at least
sixty days before filing a citizen suit against an entity for
non-compliance with the Clean Water Act, notice must be given
to the government and the potential defendant.\13\ Under this
bill, if a community determined that a hazardous fuels
reduction project violated the Clean Water Act, it would have
only fifteen days to file suit instead of the minimum sixty
days it has under current law.
---------------------------------------------------------------------------
\12\ Id.
\13\ 33 U.S.C. Sec. 1365(b). Such notice requirements also apply to
citizen suits under the Safe Drinking Water Act (42 U.S.C. 300j-8(b));
the Clean Air Act (42 U.S.C. 7604(b)); the Resource Conservation and
Recovery Act (42 U.S.C. 6972(b)); and the Comprehensive Environmental
Response, Compensation and Liability Act (42 U.S.C. 9659(d)).
---------------------------------------------------------------------------
The bill also seeks to impose unprecedented deadlines that
would tie the hands of the courts and relegate unrelated, yet
important, cases to the bottom of the pile. In suggesting that
courts issue rulings on lawsuits and appeals on cases arising
under the bill within 100 days of the initial filing date,
section 106(c) virtually holds courts hostage to agency timing.
Such a deadline also would place hazardous fuels reduction
project lawsuits above all other Federal cases on the dockets,
as the reduction project lawsuits would be considered first.
This means that all other Federal cases, including those
pertaining to terrorism, criminal violations, civil rights law,
worker rights, and employment discrimination, would be delayed
in favor of cases arising under this legislation.\14\ It is not
surprising, then, that the courts have noted that ``individual
actions within a category of cases inevitably have different
needs of priority treatment, which are best determined on a
case-by-case basis.'' \15\
---------------------------------------------------------------------------
\14\ See ADA Watch Letter.
\15\ S. 220, the ``Bankruptcy Reform Act,'' 2001: Hearings on S.
220 Before the Senate Comm. on the Judiciary, 107th Cong., 1st Sess.
(2001) (statement of the Honorable Edward R. Becker, Chief Judge of the
U.S. Court of Appeals for the Third Circuit, on behalf of the Judicial
Conference of the United States).
---------------------------------------------------------------------------
Finally, the bill would politicize and threaten the
independence of our judiciary. When reviewing decisions of
Federal agencies, the courts would have to give unprecedented
deference to the issuing agencies.\16\ It has been noted that
``this is an attempt to force courts to defer to agencies to
allow projects to go forward even after the court has ruled
that the agency actions are illegal.'' \17\
---------------------------------------------------------------------------
\16\ See ADA Watch Letter.
\17\ NRDC Letter.
---------------------------------------------------------------------------
By making courts submit reports to congressional committees
on decisions to extend injunctions,\18\ the bill would subject
the courts and even individual judges to the constant scrutiny
of politicians and thus violate separation of power principles.
Furthermore, while various Federal laws do require the courts
to submit reports to Congress, there are two major distinctions
between those laws and this bill: (1) currently, reports are
filed on an annual, semi-annual, or other periodic basis and
not on the basis of specific decisions; and (2) currently,
reports are filed by the administrative arm of the courts and
not by individual judges.
---------------------------------------------------------------------------
\18\ H.R. 1904, Sec. 106(b).
---------------------------------------------------------------------------
C. THE LEGISLATION WAS NOT PROPERLY REVIEWED IN COMMITTEE
Finally, we note that the legislation did not receive a
thorough review by the Committee on the Judiciary. Despite
containing provisions regarding administrative and Federal
court procedures, H.R. 1904 was referred initially only to the
Committee on Agriculture and the Committee on Resources. We are
pleased the Judiciary Committee not only sought and received a
referral of the bill for those provisions within its
jurisdiction but also held a markup before letting the bill
proceed to the floor. Unfortunately, the Judiciary Committee
held no hearings on these far-reaching provisions; in fact, the
Majority objected to Democratic requests for a hearing on the
same or next day, before the expiration of the referral, so
that Members of Congress and of the public could understand the
full impact of the proposed changes.\19\
---------------------------------------------------------------------------
\19\ See H.R. 1904 Markup. Moreover, despite the Majority's
assertions to the contrary, H.R. 1904 was not subject to hearings in
either the Agriculture or Resources Committees.
---------------------------------------------------------------------------
In conclusion, proper administrative and judicial review of
executive decisions and regulations are among the cornerstones
of our system of government, which counts checks and balances
as a basic tenet. This legislation attempts to eviserate these
checks and balances to give cabinet and Federal agency
officials virtually unchecked decisionmaking authority, seeks
to subject plaintiffs and courts to rigid deadlines, and
endeavors to place every Federal lawsuit except those
pertaining to this legislation on the back burner. For these
reasons, we respectfully dissent.
John Conyers, Jr.
Jerrold Nadler.
Robert C. Scott.
Melvin L. Watt.
Zoe Lofgren.
Sheila Jackson Lee.
Maxine Waters.
Martin T. Meehan.
William D. Delahunt.
Robert Wexler.
Tammy Baldwin.
Anthony D. Weiner.
Adam B. Schiff.
Linda T. Sanchez.
