Forest health and the politics of expediency.

I. INTRODUCTION

In 1995 Congress attached to an Emergency Appropriations Bill(1) a "rider"(2) creating an Emergency Salvage Timber Sale Program."(3) The sponsors of the timber salvage rider asserted to their colleagues in Congress that the rider would protect the health of our national forests from an "emergency fire, insect and disease situation on Forest Service and Bureau of Land Management (BLM) lands."(4) The rider, however, has little to do with any forest health emergency requiring special legislation.(5) Under the National Forest Management Act (NFMA),(6) the Forest Service has ample authority to protect forest health and conduct salvage sales,(7) and has done so for years. Federal regulations also authorize BLM to permit salvage harvesting of damaged timber.(8) In reality, the timber salvage rider is a vehicle for suspending environmental laws and increasing timber supplies(9) to a relatively small group of mills that depend on federal timber (as opposed to private or state timber) to stay in operation.

To increase timber supplies for mills that depend on federal timber, the rider suspends the applicability of the nation's environmental and fiscal responsibility laws for most Forest Service and BLM timber sales, and orders the Forest Service and BLM to increase the volume of timber sold from federal lands, regardless of the fiscal or environmental impacts.(10) The rider also orders the Forest Service and BLM to sell off some of the nation's healthiest and most ecologically valuable ancient forests at bargain basement prices.(11)

There are a number of ironies surrounding the salvage logging rider. First, one of the primary threats to the "health" of the national forests is the very timber cutting and road building ordered by the rider.(12) Past road building and timber cutting in many cases have increased fire risk in national forests and made these forests more susceptible to disease and insect infestation.(13) Ordering more of the same may well decrease, not increase, the health of the national forests. At the same time a true threat to forest health - the importation of raw logs carrying pests that have few (if any) natural enemies in the national forests - is being ignored by the sponsors of the "forest health" rider.(14)

A second irony arising from the salvage rider is that the rider was promoted in part as a "jobs" bill,(15) but the rider actuary threatens the very qualities that attract jobs to areas with intact national forest lands.(16) During the last seven years, the Forest Service and BLM have decreased the amount of timber sold from federal lands in the Pacific. Northwest area and increased the amount of environmental protection provided for federal forests.(17) Over the same period, the overall number of jobs in the Pacific Northwest expanded by 940,000, or 18%.(18) The salvage logging rider reverses this dynamic by threatening the qualities of the national forests that generate more new jobs and income by providing the natural-resource amenities - water and air quality, recreational opportunities, scenic beauty, and the fish and wildlife - that make the Pacific Northwest an attractive place to live, work, and do business."(19) Logging not only harms the natural forest qualities that attract employers and jobs to the Northwest, but also threatens jobs, such as those related to sport and commercial fishing, outfitting, and outdoor guiding, that depend more directly on the preservation of forest ecosystems. Thus, although touted as a jobs bill by its sponsors, the rider actually sacrifices jobs in other sectors of the economy to support a limited number of jobs at mills dependent on federal timber.

A third irony of the salvage rider is that its sponsors claimed it was necessary to offset job losses within the timber industry caused by reductions in federal timber supplies.(20) But fluctuations in the federal timber supply have little impact on overall jobs in the industry when compared with other market forces. For example, technological advances in the industry caused a 17% reduction in timber jobs in the Pacific Northwest during the early 1980s(21) - a time when the federal government was selling near-record amounts of federal timber. Since 1992, however, while federal timber sales have been at historic lows, the number of timber industry jobs in the Northwest has grown by over 14,000.(22) The fact that there is currently an overabundance of timber from nonfederal sources(23) highlights the fact that the salvage logging rider is not truly intended to offset a loss of overall jobs in the timber industry, but rather is specifically targeted at helping only those mills that depend upon subsidized federal timber - to the detriment of mills that operate using private timber.

The final irony of the timber salvage rider is that it rides, on an appropriations bill that was touted as reducing the deficit,(24) yet the rider orders the Forest Service and BLM to sell salvage timber regardless of cost to the government.(25) Federal timber sales are subsidized by the federal government when the costs of the sales are greater than the revenues generated by the sales.(26) The Wilderness Society conservatively estimates that the salvage logging rider will cost taxpayers $330 million.(27) A number of salvage sales already offered pursuant to the rider have failed to attract bidders,(28) notwithstanding the riders direction that salvage timber may be offered without competitive bidding(29) and at prices that are lower than the government's costs of offering the sales.(30)

Part II of this Article considers two topics. First, it examines the historic role of the federal government in supporting the timber industry and factors other than the federal timber supply that affect employment in the industry. Second, Part II notes the benefits provided by intact forests and the costs of providing subsidized federal timber to mills. Part II concludes that using subsidized federal timber to create or maintain jobs is inefficient and may actually result in a net job loss.

Part III analyzes the claim that there is a forest health emergency, and without immediate and extensive salvage logging, the national forests face serious threats from fire, insects, and disease in the coming summer. Part III also examines the underlying assumption that preventing fires promotes forest health and concludes that intensive management, including salvage logging, frequently increases rather than decreases the risk of fires and insect infestation. Part III explains that intensive logging also harms forest health by magnifying the impacts of natural disasters, such as the flooding that recently occurred in Oregon and Washington.(31)

Part IV examines the three categories of timber sales authorized by the salvage logging rider, only one of which involves "salvage sales," and compares the actual effects of the salvage rider with the rhetoric used by the rider's sponsors to sell the rider to their colleagues in Congress. It also analyzes how the legislative process was manipulated to produce legislation that is having impacts quite different from those claimed by its sponsors. It reviews the judicial interpretations of the rider that have been issued to date, and how those interpretations have favored the post-adoption, rather than pre-adoption, statements of the riders sponsors. Part IV concludes that there is a need for stricter enforcement of the House and Senate rules prohibiting the attachment of substantive riders to spending bills because, as was the case with the salvage logging rider, the appropriations process does not provide legislators with sufficient opportunity to discern the true impacts of riders containing substantive legislation unrelated to spending.

The Article concludes that there is no need for legislation mandating salvage logging and that the Forest Service and BLM currently possess adequate authority to conduct salvage sales that are buy necessary to promote forest health. To the extent that the salvage logging rider is an attempt to support jobs at mills that have become dependent on federal timber, it is well-intentioned but ill-considered. Destroying forests and the habitat they provide in order to subsidize mills is simply not good policy.

The federal government has historically been a reliable source of timber for a number of mills. Following World War II, the depletion of private timber supplies, exacerbated by the post-war housing boom, increased demand for national forest timber. As the Forest Service constructed a vast network of roads to gain access to this timber,(32) the amount of timber national forest managers were permitted to sell surged from 5.6 billion board feet in 1950 to 12.8 billion by 1968.(33)

Although national forests were not the only source of timber, many mills became dependent upon federal timber because the federal government subsidized the costs of federal timber. Federal subsidies come in several forms.

First, the price of federal timber frequently does not reflect the administrative or road costs of selling and removing the timber.(34) In fact, below-cost timber sales cost at least $250 million to $500 million dollars per year.(35) In fiscal years 1992 through 1994, the costs of Forest Service timber sale preparation and administration exceeded timber sale receipts by nearly one billion dollars.(36) The salvage rider alone may cost as much as $330 million taxpayer dollars.(37)

Second, the federal government subsidizes the price of federal timber through laws that restrict the export of raw logs from federal lands.(38) These export restrictions allow domestic mills to bid for federal timber free from foreign competition.(39) Although the price of private timber is determined in a global market, the price of federal timber is set exclusively in the domestic market. The federal government is willing to forego higher global market prices in order to support domestic mills and the jobs they provide.(40) Mills that cannot afford to compete in the global timber market have therefore come to rely on federal timber.

The salvage logging rider contains unusually straightforward language requiring timber subsidies for dependent mills. The rider provides, for example, that "[s]alvage timber sales ... shall not be precluded be cause the costs of such activities are likely to exceed the revenues derived from such activities."(41) The rider exempts salvage sales from the requirements of the Competition in Contracting Act(42) and the notice and publication requirements of the Small Business Act.(43) For sales in the Pacific Northwest that previously had been offered at a time when sale prices were lower than they are today, but that were withdrawn for environmental reasons, the rider provides that such sales shall be reoffered "with no change in originally advertised terms, volumes, and bid prices."(44)

Federal timber sales are also subsidized in less direct ways, and these subsidies will be paid out under the salvage rider as wen. The price of federal timber, for example, does not reflect the costs such sales impose on other national forest values. Those who benefit from these other forest values provide subsidies for the timber industry when the values are diminished without compensation. Many cities, for example, depend on water from national forest lands for their water supply, and decreases in water quality caused by logging activities impose costs on these cities.(45) Intensive logging in Pacific Northwest forests magnified the impacts of recent flooding.(46) Taxpayers will pay millions of dollars to repair the damage the logging roads and clear-cuts caused as entire hillsides slumped into rivers, streams, and other roads.(47)

The salmon fishing industry relies on national forests to provide aquatic habitat for salmon, and salmon habitat on national forest lands has been severely degraded by road building and timber cutting. As industry leaders point out,

[s]almon throughout the region have already been severely depressed because of past timber harvests done without regard to their environmental consequences. This region cannot afford to go down that road once again.

We also are a natural resource dependent industry. We are sympathetic to the plight of timber communities, and are not opposed to harvesting timber through the existing Forest Plan or in ways that are legal under current law. However, it makes no economic sense to harvest timber on the backs of fishermen and at the expense of the jobs and coastal communities which salmon support. This would be a form of economic suicide for the region."(48)

More difficult to value, but equally important, are the hundreds of noncommercial wildlife and fish species that depend upon national forest habitat to survive.(49) Streams and rivers throughout the region are seriously degraded. Over half of Oregon streams suffer from the ravages of nonpoint source pollution.(50) As many native freshwater and anadromous fish stocks decline in number, the degradation of their habitat becomes particularly alarming.

The 1993 Federal Ecosystem Management Assessment Team (FEMAT) found that "[a]lthough several factors are responsible for declines of anadromous fish populations, habitat loss and modification are major determinants of their current status. Of the 314 at-risk anadromous salmonid stocks identified within the range of the northern spotted owl, only 55 occur solely on nonfederal land."(51) The Report goes on to note that as habitat is destroyed on private lands, federal land within the range of the northern spotted owl . . . become[s] increasingly important for ensuring the existence of high quality aquatic resources."(52) The risk from habitat destruction on federal forest lands is not limited to coastal species. For example, the U.S. Fish and Wildlife Service recently found that bull trout are "subject to local extirpation . . . as a result of aquatic habitat degradation due to forest management practices, road building, dams, water diversions, mining, and grazing."(53) Sales of federal timber are subsidized because sale prices do not reflect the costs such sales impose on these plant and animal species.(54)

It can no longer be denied that noncommodity resources in our national forests have a very real economic value. As James Lyon, the Undersecretary for Natural Resources and the Environment at the Department of Agriculture, recently testified before Congress, "[t]oday National Forest System management emphasizes maintenance of ecosystem health to sustain the production of all the goods and services which derive from the national forests, including timber, forage, fish and wildlife, recreation, wilderness, and water."(55)

More broadly, the quality of life in the Pacific Northwest has contributed significantly to growth and diversity in the regional economy. That quality of life depends significantly on the recreational and aesthetic values of the region's intact national forests. A broadly based group of Northwest economists has noted that

proposals to reverse the economic transition, such as those that call for blanket increases in timber harvests from federal lands, with disregard for the overall environmental and economic impacts, offer little meaningful relief to those who are enduring much of the cost of the transition, and, in the end, they are likely to do more harm than good. The quality of this region's natural environment has tremendous economic value and is one of the driving forces behind the growth in jobs, incomes, and industrial diversification. Policies and actions that significantly diminish the natural environment may threaten this region's economic future and should be undertaken only after careful deliberation shows that they are worthwhile.(56)

Despite the availability of subsidized federal, timber, the number of jobs in the timber industry began a sharp decline in the early 1980s. Advances in milling technology made it possible for fewer people to mill the same amount of timber.(57) The diversion of logs away from mills toward export markets also contributed to this decline.(58) In Oregon, between 1979 and 1989, the total number of jobs in the lumber and wood products industry dropped by 17%, or 13,500 workers.(59) Although the total harvest of timber increased by 9% during this same period, the payroll per million board feet decreased by 37%.(60) The reductions in timber jobs caused by increased mechanization and log exports hit hard in communities where mills were the primary sources of employment,(61) but the impacts on the economy of the state as a whole were minor. In fact, the total number of jobs in Oregon increased by 23% during this period.(62)

In the mid-1980s, the supply of federal timber began to shrink as federal courts found that the Forest Service and BLM were selling timber in violation of the nation's environmental laws.(63) When courts began ordering the Forest Service and BLM to comply with environmental laws, the agencies started their own initiatives to provide greater protection for the forests under their stewardship.(64) The federal courts, federal land management agencies, environmental lawyers, environmentalists, and the nation's environmental laws became convenient scapegoats for an industry making business decisions that eliminated jobs through technological changes and the export of private timber.

There is no doubt that reductions in the federal timber supply eliminated some jobs in mills dependent on federal timber. There is also no doubt that these job losses created considerable pain for the individuals and families that depended upon those jobs. These individuals and families were caught in the triple bind of job obsolescence, overseas competition for private timber, and reductions in federal timber supplies. Continuing to subsidize mills with taxpayer-supported federal timber sales from ecologically important forests, however, is simply not the solution. Real solutions will be possible only when decision makers acknowledge the full extent of the ecological and economic costs of the federal government's timber sale program, and the relationship of that program to private-sector influences on the timber industry.

Had members of Congress recognized earlier that continued high levels of federal timber production simply could not be sustained and had Congress begun working with timber-dependent communities to make a transition to more diversified economies earlier, the impact on communities dependent on federal timber could have been softened. A recent study of small, rural communities in Idaho, Oregon, Montana, Washington, and Wyoming, prepared for the Clinton Administration as part of its ecosystem planning effort, found that timber-dependent communities are generally adapting to change in ways that are more constructive than towns dependent on ranching and farming.(65) The researchers noted: "The idea of community stability is a myth that belies a variety of influences."(66) The study called for creative thinking on how to ease transitions for these communities, and concluded, in words that Senator Slade Gorton (R-Wash.) and others should heed:

Any actions taken should reflect a more positive and pro-active approach that advances consensus-building and collaborative problem-solving across the region, rather than one that fans the flames of conflict and promotes confrontation and divisiveness among its various publics. Unfortunately, recent conflicts, whatever their short-term results, will not stop the changes that are already altering the region's rural towns far more than changing supplies of natural resources - and these conflicts do nothing to deal with those changes constructively, but rather impede their expedient and constructive resolution.(67)

The capacity of these communities to adapt to change suggests that if congressional programs had anticipated reductions in federal timber and promoted alternative economies, they could have been successful in making the transition to less resource-dependent economies.(68)

The attempt to prop up timber-dependent mills by temporarily boosting federal timber sales under the guise of promoting forest "health" rather than by promoting alternative economies, also ignores the economic realities of the region. Increasing the supply of federal timber will not stop the timber industry's decline in economic importance.(69) Efforts to prop up the industry through subsidized sales of federal timber are "shortsighted and extremely inefficient."(70)

Any doubt that the salvage rider is really a short-sighted timber jobs bill can be resolved by a review of its reporting requirements. Nothing in the rider requires the Forest Service to report to Congress on how salvage sales are enhancing forest health. The rider contains an extensive section, however, requiring the Clinton Administration to report back to Congress on the volume of timber sold pursuant to the rider.(71) In fact, the rider contains a provision waiving the requirements of the Federal Workforce Restructuring Act(72) in order to allow the Secretaries of Agriculture and Interior to rehire employees who were laid off for budgetary reasons, if necessary to carry out the timber supply mandates of the rider.(73)

This emphasis on timber supply over true forest health misses the economic mark. A group of leading economists in the Northwest recently found that over the past decade, "the economies of the Pacific Northwest states have consistently outperformed the rest of the nation," with employment and earnings growing at two to three times the national average.(74) But, the economists noted, "[t]here is a widespread, feeling of unease and insecurity about the changes talking place within the economy and the impact those changes will have on residents, ability to provide for themselves and their families, that makes it more difficult to "define problems, discuss solutions, and establish priorities."(75) Instead, the economists note, "the confusion leads us to focus on the problems and to waste resources on inappropriate salutions."(76)

The federal subsidies that caused some mills to become dependent on federal timber were not addressed by Congress during the salvage rider debate. An amendment offered by Representative Sidney Yates (D-Ill.) that would have prohibited the Forest Service and BLM from offering below-cost timber sales was rejected without discussion.(77) Representatives and Senators from regions dependent upon federal timber understand how federal timber is needed to subsidize mills and have worked quietly through the appropriations process over the years to ensure that those subsidies continued. But the issue of whether ecologically important federal timber, which supports a variety of environmental values, should be used to support a jobs program for mills has never received the congressional attention that such an important and complex issue deserves.

As the President's Council on Sustainable Development recently recommended, "[l]egislative bodies at local, state, and federal levels [should]. examine tax and subsidy policies for the purpose of determining their effect on sustainability and efficient use of natural resources."(78) It may be that Congress, after a full and open debate on the subject, would decide that spending federal dollars to cut ecologically important timber from the national forests so that dependent mills can provide employment and mill owners can make a profit is wise national policy. Creating de facto policies by circumventing the normal legislative process and attaching riders to appropriations bills, however, is not good government. Although an examination of federal resource subsidies is long overdue, the parties in the timber industry and Congress who stand to lose from close scrutiny are likely to continue to resist such scrutiny as long as possible.

III. The Illogic of Cutting the Forest to Promote Forest Health

The legislative history of the salvage logging rider is replete with assurances that immediate legislative action is required to avoid catastrophic wildfires and to promote forest health."(79) Senator Gorton stated that the rider "provides the Forest Service and Bureau of Land Management with the necessary authority to conduct timber `salvage' sales to remove dead, dying, bug infested, and burned timber on federal lands nationwide."(80)

There are a number of assumptions behind this statement. First, the statement assumes that the Forest Service and BLM currently lack the authority to offer salvage sales. This is untrue. The National Forest Management Act(81) already authorizes salvage sales,(82) and BLM has adopted regulations authorizing such sales.(83) Second, the statement assumes that the salvage rider addresses sales of bug infested or fire burned timber. This is only partly true. Two of the three categories of sales created by the salvage rider involve healthy and ecologically important timber,(84) and the third category allows green timber to be classified as "salvage" so long as it is sold together with bug infested or burned timber.(85) Third, the statement assumes that insects and wildfire are necessarily bad for forest health and that salvage sales will reduce fires and insects in a way that increases forest health. This assumption is not universally, or even commonly, correct.

Both insects and wildfire play important roles in maintaining the health of forests. In Douglas-fir forests, for example, "Douglas-fir has been dominant over [the Pacific Northwest] because of disturbance by fire and the species' adaptations to fire. . . . Almost all of the old-growth Douglas-fir resource is a product of fire."(86) In fact, "[t]hrough the millennia, fire has greatly affected the composition, structure, and numerous ecological processes of forest ecosystems in the Pacific Northwest. All forest organisms of the Pacific Northwest are innately suited for survival in their environment, and this includes specific adaptations to ensure persistence following fire."(87)

Similarly, insects can play an important role in maintaining forest health.(88) The Forest Service has spent millions of dollars in the past to fight insects and diseases where the probability of eradication is low and the benefits of eradication are illusory.(89) Yet, "analysis frequently shows that insects and disease do little real damage to the forest and may even have beneficial effects. In other cases, insect epidemics can be serious problems, but such problems are actually promoted, not cured, by the Forest Service's silvicultural response."(90)

When fires and insect infestations do pose catastrophic risks to forests, it is often because past road construction and timber cutting have made a forest particularly susceptible to wildfire and insects, and the forest's natural defense mechanisms have been weakened or removed.(91) A recent study by eight well-respected scientists and scholars found.

Land management practices in the interior Columbia and upper Missouri basins have profoundly impacted forest, grassland, and aquatic ecosystems. . . . At every level of biological organization - within populations, within assemblages, within species, and across the landscape - the integrity of biological systems has been severely degraded. This is best seen in the marked reduction in the biological diversity in the region.

The entire range of land management practices is implicated in this regionwide decline. Streamside development, logging, grazing, mining, fire suppression, . . . and chronic effects of roadbuilding have cumulatively altered landscapes to the point where local extirpation of sensitive species is widespread and likely to continue.(92)

Fire has been an integral part of the evolution of western ecosystems.(93) While many argue that fire is a major, imminent "threat" to forest health, there are a number of grave threats to ecosystems in the West. A land management approach based solely on fire suppression will not resolve the problems the region's ecosystems face.(94)

Even if one defines forest health in the narrowest of terms, ignoring the ecology of the forest and treating forests as tree farms, it is not clear that suppressing all fires and insect occurrences leads to better forest "health." Intensively managed forests on private industrial forest lands routinely show a higher mortality rate than less intensively managed federal forests.(95) More intensively managed areas within national forests also appear to be more vulnerable to fire and insect infestation than less intensively managed roadless areas. In the Bitterroot National Forest, for example, a review of fire activity revealed that human-caused fires in developed areas were approximately three times the size of natural fires in undeveloped areas.(96) In the Gila National Forest, planners estimated that total fire protection in developed areas would cost two to eight times as much as in roadless areas.(97)

The assumption that salvage sales will necessarily reduce fires and insects in a way that increases forest health is also incorrect. In fact, the Forest Service's own scientists, other federal agencies, and independent scientists have opposed many of the sales offered to date under the "salvage" logging rider as being harmful to forest health.(98)

In Idaho Conservation League v. Thomas,(99) for example, the plaintiffs challenged the Forest Service's offer of the Thunderbolt salvage sale along the South Fork of the Salmon River.(100) The South Fork of the Salmon was once prime spawning grounds for Northwest salmon, but landslides resulting from road building and timber cutting destroyed its value as a fishery.(101) The area of the Thunderbolt sale had been burned in a 1994 wildfire.(102) The Forest Service proposed using the revenues from the Thunderbolt sale to pay for "restoration activities" along the South Fork.(103) The National Marine Fisheries Service, the Environmental Protection Agency, the U.S. Fish and Wildlife Service, and the Idaho Department of Fish and Game all opposed the sale.(104) The Forest Service, however, insisted on proceeding with the sale.(105)

Ironically, the Thunderbolt sale failed to attract any bidders when it was first offered.(106) Nevertheless, the court allowed the Forest Service to proceed with an attempt to sell the timber.(107)

The ecologically important sales that have been offered under the "salvage" rider are too numerous to list here. Citizen watchdog groups have compiled several useful and detailed lists of those sales offered pursuant to the rider that will have devastating impacts on ecosystems - sales that could not have been offered without the riders waiver of environmental and fiscal responsibility laws.(108)

Even for true "salvage" sales, "[t]imber salvage is one subject; forest health a very different topic.... Timber salvage is exactly what the term denotes - an attempt to salvage something from a bad situation. Options are limited at that stage, and there is economic pressure to move quickly before value is lost."(109) In other words, many salvage sales are intended solely to provide timber for mills, not to promote forest health.

Most timber sales harm forest health; comparatively few actually advance forest health. The salvage rider's aggressive emphasis on meeting timber production targets through "salvage" sales therefore creates the very real risk that such sales, although offered in the name of forest health, will actually harm the long-term viability of the national forests. To the extent that salvage sales are truly necessary to improve forest health, the Forest Service and BLM have ample authority to conduct such sales.(110) Even if salvage logging needed additional congressional authorization, however, the salvage logging rider addresses three categories of timber sales: one category involves salvage sales, which can include green timber,(111) but the other two involve the sale of perfectly healthy trees. The rider exempts all three categories of sales from environmental laws, fiscal responsibility laws, and any meaningful judicial review.(112)

IV. Rhetoric Versus Reality: How the Legislative Process Was Bent

to Gain Adoption of the Rider

The salvage logging rider was embedded in an appropriations bill that provided emergency finding for disaster assistance, anti-terrorist initiatives, and assistance in the recovery from the tragic bombing of the federal building in Oklahoma City, Oklahoma.(113) The riders sponsors knew that the President opposed the rider because he had previously vetoed a "rescissions" bill containing similar language. Sponsoring members correctly calculated, however, that the President would be forced to sign a bill containing emergency relief for disaster victims. On July 14, 1995, President Clinton signed the emergency appropriations bill, including the "Emergency Salvage Timber Sale Program" into law.

The sponsors of the salvage rider assured their colleagues that the rider "addresses an emergency situation in forests across the United States" and "provides the Forest Service and Bureau of Land Management with the necessary authority to conduct timber `salvage' sales to remove dead, dying, bug infested, and burned timber on federal lands nationwide."(114) Sponsors of the rider were indignant at the thought that anyone would oppose the cutting of timber that was simply wasting away in the forest. As Representative Charles Taylor (R-N.C.) stated: "Now, what are we talking about tonight in this amendment? We are not talking about green timber that needs also to be harvested. We are talking about dead and dying trees. We are talking about timber that has been burned."(115)

The sponsors of the salvage logging rider also told their colleagues that the rider would "release a group of sales that have already been sold under the provisions of [a previous rider]"(116) and "simply says that ... we will liberate the administration to do what it wants to do."(117) Within hours of President Clinton signing the rider into law, however, these same sponsors sent a letter to the Secretaries of the Interior and Agriculture, informing them that "the salvage legislation . . . requires the release of all previously offered or awarded timber sales" within the "spotted owl" forests of western Oregon and Washington.(118) The sponsors warned the Secretaries that they could expect "our active oversight of your implementation of the measure."(119)

The rider does not liberate, the Clinton Administration to "do what it wants to do," but rather orders the Administration to do what it does not want to do.(120) In short, the sponsors of the legislation seriously misrepresented its impacts when presenting it to their colleagues.(121) They succeeded in part because the rider did not go through the usual legislative process. The congressional committees with jurisdiction over federal lands did not prepare reports or hold public hearings on the rider. No reports were prepared on the final language of the bill.(122) Members of the House had to vote on the bill without even having seen the final language.(123) By attaching the rider to an appropriations bill, its sponsors avoided the usual legislative processes, which Improve final legislative products and allow dissenters to fine-tune language and challenge assumptions.

A. Timber Sale Categories

Representative Taylor, the chief sponsor in the House, explained that the timber salvage rider included three parts: 1) "the timber salvage portion"; 2) "the section 318 timber that has been approved and been waiting five years now, past all regulations, been waiting five years to be put on the market"; and 3) "the option 9 that the President himself recommended."(124)

1. Salvage Sales

The first category of timber sale addressed by the rider is the salvage sale category.(125) The rider defines "salvage timber sale" as

a timber sale for which an important reason for entry includes the removal of the disease or insect-infested trees, dead, damaged, or down trees, or trees affected by fire or imminently susceptible to fire or insect attack Such term also includes the removal of associated trees or trees lacking the characteristics of a healthy and viable ecosystem for the purpose of ecosystem improvement or rehabilitation, except that any such sale must include an identifiable salvage component of trees described in the first sentence.(126)

In other words, healthy trees may be sold under provisions governing salvage sales, so long as the sale contains a "salvage" component.

The rider provides that sales classified as salvage sales shall, "to the maximum extent feasible," be "above the programmed level" of timber harvest and shall be offered "notwithstanding any other provision of law, including a law under the authority of which any judicial order may be outstanding on or after the date of enactment of this Act."(127) To take advantage of this statutory protection, the Forest Service has reclassified a, number of healthy sales as salvage sales.(128) Many of these sales violated environmental laws and, therefore, could not have been sold without reclassifying them as salvage and gaining the shield provided by the rider.

2. Option Nine Sales

The second category of sales addressed by the salvage rider are sales covered by "Option Nine," the land management plan alternative selected in the Record of Decision for Amendments to Forest Service and Bureau of Land Management Planning Documents within the Range of the Northern Spotted Owl.(130) Option Nine was the Clinton Administration's attempt to end the protracted litigation over the impacts of federal timber cutting on the northern spotted owl and other species dependent on ancient forests. Option Nine reduces the amount of timber cut on federal lands and provides greater protection for ancient forests than had been provided by previous plans.(131)

Although Option Nine has already received the blessing of the Ninth Circuit,(132) the salvage logging rider directs the Clinton Administration to prepare and offer Option Nine sales "expeditiously" and authorizes (but does not compel) the Administration to offer such sales "notwithstanding any other law" and "notwithstanding any decision, restraining order, or injunction" previously issued by a U.S. court.(133)

At least one court has now ruled, based on the language of the salvage rider, that Option Nine sales cannot be judicially reviewed.(134) According to this ruling, the rider exempts all Option Nine sales from compliance with all environmental laws. Although the Administration has issued a memorandum stating that it nevertheless intends voluntarily to comply with environmental laws in offering Option Nine sales,(135) this provides little comfort to plaintiffs who in the past have repeatedly had to go to court to prove that, despite Forest Service and BLM assurances to the contrary, the Forest Service and BLM were not voluntarily complying with environmental laws.(136)

3. Section 318 Sales

The third category of timber sales authorized by the salvage logging rider involves sales "offered or awarded [before the date of enactment of the rider] in any unit of the National Forest System or district of the Bureau of Land Management subject to section 318 of Public Law 101-121 (103 Stat. 745)."(137) The section requires that all such sales be offered "with no change in originally advertised terms,"(138) except where a "threatened or endangered bird species is known to be nesting within the acreage that is the subject of the sale unit."(139) This provision of the rider has received the most attention in court to date.

The sponsors of the rider repeatedly assured their colleagues that this provision applied only to "a group of sales that have already been sold under the provisions of section 318."(140) Senator Gorton circulated a memorandum to his colleagues on the Interior and Related Agencies Subcommittee of the Senate Appropriations Committee, assuring them that he had

included language to release a group of timber sales that have already been sold under the provisions of Section 318 of the Fiscal Year 1990 Interior and Related Agencies Appropriations Act The harvest of these sales was assumed under the Presidents Pacific Northwest Forest Plan, but their release has been held up due to extended subsequent review by the U.S. Fish and Wildlife Service. Release of these sales will remove tens of millions of dollars of liability from the government for contract cancellation.(141)

During the floor debate on the salvage rider, Senator Gorton, who helped shepherd the rider through the Appropriations Committee, repeated his assurances that "many of the sales directed by this Congress pursuant to that law(142) have been held up by subsequent environmental actions. The proposal that the committee has made simply says that those sales would go ahead unless they involved places in which endangered species were actually found."(143) These and other statements by Senator Gorton that the provision of the salvage logging rider referring to section 318 sales involved only a limited set of sales specifically authorized by section 318 itself were intended to allay concerns by members of Congress that the salvage logging rider would affect important spotted owl habitat.(144)

Within hours of President Clinton signing the salvage logging rider into law, however, Senator Gorton and several other Senators and Representatives sent a letter to the Secretaries of Agriculture and the Interior, stating:

We want to make it clear that subsection (k) of the salvage legislation applies within the geographic area of National Forest units and BLM districts that were subject to Section 318 ... and within that geographic area requires the release of all previously offered or awarded timber sales, including Section 318 sales as well as all sales offered or awarded in other years (such as, Fiscal Years 1991-1995) that are not subject to Section 318. The reference to Section 318 in subsection (k)(1) defines the geographic area that is subject to subsection (k).(145)

The letter also stated: "You can expect our active oversight of your implementation of the measure." It closed by stating. We expect each of you to provide us with written assurances that your agencies intend to implement Section 2001 in accordance with the direction provided in this letter."(146)

The timber industry then sued the Secretaries in federal court, seeking a judicial interpretation that matched Senator Gorton's post-enactment description of subsection (k).(147) The Clinton Administration disagreed with Senator Gorton's interpretation, and stated in a memorandum the Administration's understanding that section 2001(k) is intended to apply only to those remaining timber sales developed and offered subject to section 318(b)-(j) of the Fiscal Year 1990 Interior and Related Agencies Appropriations Act, as directly addressed in section 2001(k)(1)."(148)

In Northwest Forest Resource Council v. Glickman,(149) a district court in Oregon agreed with Senator Gorton's interpretation of subsection (k) and granted summary judgment for the industry. The court found:

Section 2001(k) requires the Secretary concerned to award, release and permit to be completed all contracts for the sale of timber on land within the section 318 geographic region for which the relevant agency opened bids between October 23, 1989, and July 27, 1995, unless there is a threatened or endangered bird known to be nesting within the sale unit.(150)

The holding, however, is not self-evident from the language of subsection (k). The relevant phrase within subsection (k), subject to [section] 318," could modify either the term sales, or the term "unit of the National Forest System or district of the Bureau of Land Management."(151) The sponsors' pre-enactment statements to their colleagues used the term to define only sales "already sold under the provisions of section 318"(152) and "sales directed by this Congress pursuant to [section 318]"(153) but their post-enactment statements to the Administration and the courts used the term to define an entire geographic area. Although the district court purported to rely on the legislative history of the rider, the history cited by the court is as ambiguous as the language of the statute itself.(154) The court ignored less ambiguous legislative history referring to a specific group of sales, and cited to the post-enactment statements of Senator Gorton as being "consistent" with the court's conclusion.(155)

The court's opinion interpreting subsection (k) as applying to all previously offered or awarded sales within the geographic scope of section 318 specifically included sales that were previously enjoined for violating environmental laws.(156) The district court's opinion is currently on appeal to the Ninth Circuit.(157) A number of Senators and Representatives have filed an amicus brief in the Ninth Circuit, arguing that the district court's interpretation of the rider is inconsistent with congressional intent.(158)

Following the district court's opinion, the President released a statement expressing disappointment with the opinion: My Administration's agreement with Congress on this issue was significantly different from the interpretation upheld this week by the courts.... My Administration will actively pursue a legislative remedy to correct this extreme result."(159)

The industry has also sought a narrow interpretation of the exception for section 318 sale units where threatened or endangered birds are "known to be nesting."(160) The Fish and Wildlife Service had previously determined that fifty-nine section 318 timber sales in Northwest coastal forests threatened the survival of the marbled murrelet, a small and secretive ocean-going bird that nests high in coastal old growth forests.(161) In Northwest Forest Resource Council V. Glickman,(162) the court adopted an interpretation of nesting, that is much narrower than the interpretation of the Fish and Wildlife Service.(163) According to the affidavits filed by the government in seeking a stay of the court's order pending appeal, the sales compelled under the court's and the industry's interpretation of "nesting" would result in the loss of over 3800 acres of occupied nesting murrelet habitat, or 14% of the total known endangered murrelet habitat in Oregon and Washington.(164)

Obviously, the sale of healthy old growth that is essential to the survival of a species has nothing to do with forest health, under any definition of that word. The sponsors of the salvage logging rider are willing to sacrifice entire species if necessary to preserve, even for a short time, a limited number of jobs at mills that are subsidized by federal timber. It seems highly unlikely, however, that had the entire Congress been made aware of these consequences, it would have been willing to accept them.

B. Situational Ethics and Legislative Expediency 

Both houses of Congress have rules prohibiting the insertion of substantive provisions in spending bills. The Senate Rules, for example, provide. "The Committee on Appropriations shall not report an appropriation bill containing amendments to such bill proposing new or general legislation ...."(165) The House Rules prohibit any amendment to a general appropriation ... if changing existing law."(166)

In Tennessee Valley Authority v. Hill,(167) the Supreme Court reviewed the reasons behind the rule banning substantive riders in appropriations bills.

When voting on appropriations measures, legislators are entitled to operate under the assumption that the funds will be devoted to purposes which are lawful and not for any purposes forbidden. Without such an assurance, every appropriations measure would be pregnant with prospects of altering substantive legislation, repealing by implication any prior statute which might prohibit the expenditure. Not only would this lead to the absurd result of requiring Members to review exhaustively the background of every authorization before voting on an appropriation, but it would flout the very rules the Congress carefully adopted to avoid this need.(168)

Because private citizens cannot enforce the rules of Congress, citizens must rely on members of Congress to comply voluntarily with their own rules. One might think voluntary compliance would be a sufficient safeguard, since elected representatives are expected to exhibit the highest moral character. After all, how can we expect members of society to voluntarily comply with laws if those who make the law cannot police themselves?

For the salvage rider, however, House rules prohibiting such riders were "waived"(169) and the Senate rules were ignored to allow the rider to be attached to the appropriations bill. "Riders" bypass hearings, committee consideration, and those components of the legislative process that are most likely to reveal misrepresentations, false assumptions, and problems with ambiguous language.(170) Senator Patty Murray (D-Wash.) stated: "Attaching a major harvesting amendment to an appropriations bill like this - worked out at the last minute, behind closed doors - is no way to make good public policy."(171) Riders that originate in the dark of night"(172) are unlikely to look attractive in the light of day.

Even within Congress, riders are only available to the privileged and Powerful. If every member of Congress could attach special legislation to appropriations bills, there would be no need for the normal legislative process, and appropriations bills would be ornamented like Christmas trees with special legislation. The privilege of having congressional rules waived to accommodate a rider, therefore, maybe exercised only by those, such as committee chairs, who exercise sufficient power over other members to receive special treatment. In the case of the salvage logging rider, that Privilege was exercised with a vengeance by Senator Hatfield, the chair of the Senate Appropriations Committee, and Senator Gorton, the chair of the Subcommittee on Interior and Related Agencies.(173)

As one might expect, legislation as hastily drawn as the salvage logging rider has spawned a number of lawsuits.(174) The constitutionality of the rider has been challenged on a variety of grounds, including grounds that the vagueness of the statute has allowed federal agencies to sell green timber as "salvage" while not selling true salvage timber.(175) Other suits challenge application of the statute in particular cases,(176) including cases where the statute is being applied to release sales that had been previously enjoined for violating environmental laws.(177) Setting aside usual legislative processes - including explicit safeguards - in order to push through this rider is "an egregious example of legislating on an appropriations bill [to allow] consideration of the salvage timber provision, which would require cutting double the amount of timber which was cut from our national forests last year, and which would suspend all environmental laws protecting the preservation of our forests."(178) The accelerated appropriations process allowed the sponsors of the rider to avoid tough questions about the fiscal and environmental impacts of the rider.

The federal agencies charged with managing our national forests already have ample authority to conduct salvage sales where such sales will truly advance forest health.(179) The timber salvage rider actually has little to do with any need for special legislation governing salvage. Rather, the rider is a disguised jobs bill that sacrifices forest health to continue subsidizing mills dependent upon federal timber. Decades of overuse have left our national forests vulnerable to additional increases in logging and road building, and the timber rider imposes the worst sort of hasty and ill-conceived sales on already overcut federal lands.

Those who have lost jobs at mills dependent on subsidized federal timber should not be left out in the cold by the federal government. But using taxpayer dollar to cut ecologically and economically important intact national forests as a means of supporting mills that cannot sustain themselves without federal subsidies is poor national policy. Congress can and should act to help those who are harmed by decreases in the supply of timber from federal lands, but it is short-sighted to attempt to do so by returning to the ecologically disastrous practices that led to dependence in the first place.

The nontimber users of the national forests will pay the economic and ecological costs of the rider, while the subsidized benefits of the rider will go to a limited group of mills. It seems unlikely that such legislation would survive the normal legislative process and the rigorous investigation and debate that accompanies that process. The rider dramatically illustrates how privilege and power in Congress can be used to benefit a limited constituency at the expense of the public. (1) Emergency Supplemental Appropriations for Additional Disaster Assistance, for Anti-Terrorism Initiatives, for Assistance m the Recovery from the Tragedy that Occurred at Oklahoma City, and Rescissions Act (Emergency Appropriations Act), Pub. L No. 104-19, [subsections] 2001-2002, 109 Stat. 194, 240-47 (1995) (to be codified at 16 U.S.C. [section] 1611). (2) The term "rider" refers to substantive legislation given a "ride" on an appropriations bill. The rules of the House aid Senate prohibit attaching substantive legislation to spending bills, but those rules may be suspended for particular votes. See generally Linda M. Bolduan, Comment, The Hatfield Riders: Eliminating the Role of Courts in Environmental Decision-making, 20 Envtl. L. 329 (1990). (3) Pub. L No. 104-19, A 2001, 109 Stat. at 240. (4) H.R. Rep. No. 71, 104th Cong., 1st Sess. 20 (1995). Senator Slade Gorton's article states that the salvage rider was necessary to "limit the opportunity for frivolous lawsuits." Slade Gorton & Julie Kays, 26 Envtl. L. 641, 642 (1996). But of course "frivolous" lawsuits don't stop timber sales. Meritorious lawsuits, in which plaintiffs prove that timber sales are being conducted in violation of the law, do stop timber sales. It is these meritorious lawsuits, not "frivolous" lawsuits, that Senator Gorton has halted with the salvage logging rider. (6) 16 U.S.C. [subsections] 1600-1614 (1994). (7) Under NFMA, the Forest Service may engage in salvage or sanitation harvesting of timber stands which are substantially damaged by fire, windthrow, or other catastrophe, or which are in imminent danger from insect or disease attack. The Secretary [of Agriculture] may either substitute such timber for timber that would otherwise be sold under the plan or, if not feasible, sell such timber over and above the plan volume. Id. [section] 1611(b). (8) See 43 C.F.R. [section] 5473.4(d) (1995). (9) The rider specifically directs that timber sold pursuant to its provisions shall be in addition to, and not in replacement of, previously planned harvests. Pub. L. No. 104-19, [section] 2001(c)(7), 109 Stat. at 243 ("The Secretary concerned shall not substitute salvage timber sales conducted under [NFMA's salvage provisions] for planned non-salvage timber sales."). (10) Id. [section] 2001(b)(1), 109 Stat. at 241 (stating that salvage sales shall be offered "notwithstanding any other provision of law"); id. [section] 2001(c)(5), 109 Stat. at 243 (exempting salvage sales from fiscal responsibility laws); id. [section] 2001(i), 109 Stat. at 245 (deeming sales offered pursuant to the rider to automatically satisfy the requirements of environmental laws). (11) Much of the timber subject to the rider is located in important habitat for threatened or endangered species, such as the northern spotted owl (Strix occidentalis caurina). Court orders prohibited logging in this habitat until 1990, when a rider attached to the 1990 appropriations bill removed the courts, jurisdiction. Department of the Interior and Related Agencies Appropriations Act of 1990, Pub. L. No. 101-121, [section] 318(f)(1), 103 Stat. 701, 749 (1989); see generally Victor M. Sher & Carol S. Hunting, Eroding the Landscape, Eroding the Laws: Congressional Exemptions from Judicial Review of Environmental Laws, 15 Harv. Envtl. L Rev. 435 (1991). The 1990 rider resulted in a number of timber sales that were offered but then withdrawn when it was discovered that an additional endangered species, the marbled murrelet, also relied upon the habitat that would be destroyed by the sales. See Rob Taylor, Gorton-Led Republicans Push Logging Despite Murrelet, Seattle Post-Intelligencer, Aug. 4, 1995, at B6. The 1995 salvage rider orders that these sales be awarded "with no change in originally advertised terms, volumes, and bid prices . . . [and] the return of the bid bond shall not alter the responsibility of the Secretary to comply with this paragraph." Pub. L. No. 104-19, [section] 2001(k)(1), 109 Stat. at 246. (12) See generally Dominick A. DellaSala et al., Forest Health: Moving Beyond Rhetoric to Restore Healthy Landscapes in the Inland Northwest, 23 Wildlife Soc'y Bull. 346, 349-50 (1995); Robert L. Beschta et al., Wildfire and Salvage Logging: Recommendations for Ecologically Sound Post-Fire Salvage Logging and Other Post-Fire Treatments on Federal Lands in the West (Mar. 1995). (13) See generally DellaSalla et al., supra note 12, at 349-50 (citing Randal O'Toole, Reforming the Forest Service 86 (1988)) (noting that road building and logging can disrupt natural fire breaks such as bogs and meadows and, in dry regions, open canopies causing forest understories to dry out earlier in the fire season). (14) See Importation of Logs, Lumber, and Other Unmanufactured Wood Articles, 60 Fed. Reg. 27,665 (May 25, 1995) (to be codified at 7 C.F.R. [section] 319): Animal and Plant Health Inspection Serv., U.S. Dep't of Agric., Final EIS on Importation of Logs, Lumber, and Other Unmanufactured Wood Articles (July 1994). The regulations and final environmental impart statement have been challenged in Oregon Natural Resources Council v. APHIS, No. 96-4066-CW (N.D. Cal. filed Nov. 14, 1995). The complaint alleges that the importation of raw logs from Siberia poses a risk to Northwest Douglas-fir forests similar to that which wiped out the Dutch Elm and Chestnut trees on the East Coast. Plaintiffs Complaint, Oregon Natural Resources Council, No. 95-4066-CW at 10. (15) See, e.g., 141 Cong. Rec. H5559 (daily ed. May 24, 1995) (statement of Rep. Jack Metcalf (R-Wash.)) ("To the state of Washington alone, this legislation would mean 7,500 man-years of direct, indirect, and induced employment."). (16) Thirty-five of the leading economists in the Northwest recently concluded that high quality of life, made possible in large part by uncut national forest lands, has attracted more jobs to the region than have been lost through reductions in timber cutting. See Economic Well-Being and Environmental Protection in the Pacific Northwest: A Consensus Report by Pacific Northwest Economist 16 (Thomas M. Power ed., 1995) (on file with author) [hereinafter Economists' Report]; see also Thomas M. Power, Economists Agree Environmentalism Good for Economy, The Oregonian, Mar. 12, 1996, at B7. (17) See generally U.S. Forest Serv. & Bureau of Land Mgmt., U.S. Dep't of Agric. & U.S. Dep't of Interior, Record of Decision for Amendments to Forest Service and Bureau of Land Management Planning Documents within the Range of the Northern Spotted Owl (1994) [hereinafter Spotted Owl ROD] (amending all planning documents within the range of the northern spotted owl to incorporate ecosystem management procedures). (18) See Economists' Report, supra note 16, at i. (19) Id. at ii. (20) See, e.g., 141 Cong. Rec. H5559 (daily ed. May 24, 1995) (statement of Rep. Jack Metcalf (R-Wash.)) ("Since 1987, 51 mills have closed in northern California due to drastic decreases in Federal timber sales....Thousands of workers have been dislocated, causing unemployment to exceed 20 percent in some areas."). (21) Bureau of Land Management's Request for Exemption under the Endangered Species Act for 44 FY 1991 Timber Sales: Hearings Before the Endangered Species Comm., U.S. Dep't of Interior, Office of Hearings and Appeals, at [paragraph] 24 (Dec. 26, 1991) (testimony of W. Ed Whitelaw on behalf of U.S. Fish & Wildlife Service) (on file with author) [hereinafter Whitelaw Testimony]. (22) See 141 Cong. Rec. S10,423 (daily ed July 20, 1995) (table attached as exhibit to testimony of Sen. Patty Murray (D-Wash.)). (23) As one industry publication reported in May 1995, "[a]s lumber prices have eroded this spring, a consensus has developed that there is simply too much production chasing too few orders." Random Lengths, May 12, 1995, at 1. Seven months later, the same publication reported: Reacting to the combination of a slumping timber market and waning demand for chips, Georgia-Pacific this week said it would close 14 mills December 18 for at least two weeks....Among the reasons cited for the closures were the slow market, weak lumber prices, high log costs, sizeable mill inventories, and a "chip glut." Random Lengths, Dec. 1, 1995, at 1. An overabundance of timber from nonfederal sources does not necessarily help mills that are dependent on federal timber. Some mills are located immediately adjacent to national forests but are far away from nonfederal timber sources. If nonfederal timber sources are located too far from a mill, haul costs may prevent the mill from submitting competitive bids for the timber. The fact that some mills are struggling in the midst of an oversupply of nonfederal timber, however, does highlight how dependent some mills are on federal timber. (24) See, e.g., 141 Cong. Rec. S9480 (daily ed June. 30, 1995) (statement of Sen. Slade Gorton (R-Wash.)) ("[It is] good news for the people of the United States ... [that the] rescissions bill [will] save somewhere between $12 and $15 billion of spending already authorized and appropriated.... Regrettably, it will allow somewhat more spending ... than was the case with [an] earlier proposal."). (25) See Pub. L No. 104-19, [section] 2001(c)(6), 109 Stat. at 243. (26) See Wilderness Soc'y, Estimated Fiscal Costs of Current Proposals for an Emergency Salvage Timber Sale Program (1995) (on file with author). (27) Id. at 1. The Wilderness Society used conservative estimates in reaching this conclusion. For example, it assumed the quality of the timber sold under the rider would be equivalent to the quality of timber sold in the Forest Service's regular timber sale program, despite the fact that salvage sales will actually involve lower value timber. Id. at 1 n.1. The Society also ignored the inverse effect that timber supply increases have on stumpage value. Id. at 1. The Congressional Research Service estimates that a 3 billion board foot increase in supply is likely to cause a 13 to 16% reduction in stumpage value. See Letter from Ross Gorte, Congressional Research Service, to Senator Patrick Leahy (D-Vt.) (Mar. 7. 1995) (regarding stumpage price changes associated with changing Forest Service timber salvage sales). If the relationship between supply and prices is taken into account, the Wilderness Society estimates that taxpayer costs for the timber salvage rider will increase to $497 million. Wilderness Soc'y, supra note 26, at 1. (28) See Hearings Concerning Section 2001 of Public Law 109-19 Emergency Appropriations and Funding Rescissions Act: Before the Subcomm. on Forest and Public Lands Management of the Senate Comm. on Energy and Natural Resources, 104th Cong., 1st Sess. (Aug. 10, 1995) (Statement of James R. Lyons, Undersecretary for Natural Resources and Environment, Department of Agriculture), available at 1995 WL 475393. (29) See Pub. L No. 104-19, [section] 2001(c)(5)(B), 109 Stat. at 243 (exempting salvage sales from the Competition in Contracting Act 15 U.S.C. [section] 253 (1994), and the notice and publication requirements of the Small Business Act, 15 U.S.C. [section] 637(e) (1994)). (30) Id. [section] 2001(c)(6), 109 Stat. at 243 ("Salvage timber sales undertaken pursuant to this section shall not be precluded because the costs of such activities are likely to exceed the revenues derived from such activities."). (31) See Hal Bernton, Survey Ties Landslides to Roads, Clear-Cuts, The Oregonian, Feb. 12, 1996, at A1 (noting that most of the landslides that happened due to the flood in the Clackamas River drainage occurred in logged or roaded areas and citing a U.S. Forest Service Survey that documented landslide hazards that resulted from logging); Peter D. Sleeth & Hal Bernton, Swollen Streams Tied to Logging: The Legacy of Clear-Cutting and Road-Bulding, The Oregonian, Mar. 8, 1996, at C1 (citing a study that found that clear-cutting forests and building roads increased peak flows in mountain streams by as much as 50 percent). (32) There are an estimated 128,000 miles of logging roads on national forest lands in Oregon, Idaho, and Washington. See Northwest Env't Watch, Roads Take Toll On Salmon, Grizzlies, and Taxpayers 3 (1995) (on file with author). This total reflects only roads constructed for logging and not other roads, such as state and interstate highways, that have also been constructed on national forest lands. (33) O'Toole, supra note 13, at 21; see also Forest Ecosystem Mgmt. Assessment Team, Forest Ecosystem Management. An Ecological, Economic, and Social Assessment at II-2 (1993) [hereinafter FEMAT Report]. (34) See General Accounting Office, Congress Needs Better Information on Forest Service's Below-Cost Timber Sales 10 (1984); Thomas v. Peterson, 753 F.2d 754, 762 (10th Cir. 1985) ("The authorization of the use of appropriated funds for road construction suggests that some roads may be built whose cost is not borne entirely by timber purchases."); see generally O'Toole, supra note 13, at 26-39 (discussing how the Forest Service does not take into account all the costs of timber when pricing it). (35) O'Toole, supra note 13, at xi. (36) See General Accounting Office, Distribution of Timber Sales Receipts Fiscal Year 1992-94, at 2 (Sept. 1995); see also General Accounting Office, Forest Service's Cost Efficiency Efforts 2 (Apr. 1994); ("[S]ix of the nine regions' timber sales programs showed a net loss when annual expenses were deducted from revenues for fiscal year 1993."). (37) See Wilderness Soc'y, supra note 26. (38) 16 U.S.C. [section] 619 (1994). (39) See, e.g., Ross W. Gorte & Kenneth R. Thomas Congressional Research Serv., CRS Report to Congress: Restricting Softwood Log Exports: Policy and Legal Implications 10, 11 (1993) ("export prices are substantially higher than domestic timber prices"); see also id. at tbl. 4 (showing values of Forest Service timber as compared to export timber values from 1975 through 1992 and showing that Forest Service timber routinely sells for one-half to one-third the price of export timber). (40) Log export restrictions, to the extent that they hold down the overall amount of timber cut from federal lands, provide ecological benefits in addition to subsidizing domestic mills. (41) Pub. L. No. 104-19, [section] 2001(c)(6), 109 Stat. at 243. (42) Id. [section] 2001 (c)(5)(B)(i), 109 Stat. at 243 (exempting the salvage rider from the Competition in Contracting Act of 1984, 41 [subsection] U.S.C. 253-253(l) (1994)). The Competition in Contracting Act of 1984 generally requires an executive agency to "obtain fun and open competition through the use of competitive procedures" such as sealed bids for example, in conducting a procurement for "property or services." 41 U.S.C. [section] 253(a) (1994). (43) Pub. L. No. 104-19, [section] 2001(c)(5)(B)(ii), 109 Stat. at 243 (exempting the salvage rider from section 8(e) of the Small Business Act). Section 8(e) of the Small Business Act, 15 U.S.C. [subsections] 631-647 (1994), requires an executive agency intending to solicit bids for a contract for property or services for a price over $25,000 to comply with certain notice and publication requirements. Id. [section] 637(e). (44) Pub. L. No. 104-19, [section] 2001(k)(1), 109 Stat. at 246. (45) Not surprisingly, many of these municipalities oppose the salvage rider. See, e.g., Letter from the City of Portland, Oregon, to President Bill Clinton (Dec. 13, 1995) (on file with author) (urging President Clinton to seek a repeal of the salvage logging rider). (46) See supra note 31. (47) Id. (48) Letter from Zeke Grader, Executive Director, Pacific Coast Federation of Fishermen's Associations, & Liz Hamilton, Executive Director, Northwest Sportfishing Industry Association, to Members of Congress (Mar. 13, 1995), reprinted in 141 Cong. Rec. S4880 (daily ed. Mar. 30, 1995); see also Ocean Salmon Fisheries Off the Coasts of Washington, Oregon, and California, 59 Fed. Reg. 22,999 (May 4, 1994) (Pacific Fisheries Management Council order severely limiting fishing for 1994 due to catastrophically low projected populations). (49) See Seattle Audubon Soc'y v. Lyons, 871 F. Supp. 1291, 1321 (W.D. Wash. 1994) ("Many fish populations are at risk due in part to habitat loss in the forests. Among these are anadromous fish prized for commerce and sport"), aff'd, 1996 WL 165069 (9th Cir. Apr. 10, 1996). (50) FEMAT Report, supra note 33, at V-2. (51) Id. (52) Id. (53) Endangered and Threatened Wildlife and Plants; 12-month Petition Finding on the Bull Trout, 59 Fed. Reg. 30,254 (June 10, 1994). (54) In addition to the absolute reductions in species population caused by federal timber sales, such sales impose costs because the federal government must then spend taxpayer dollars to attempt to prevent species extinction. (55) Hearings on GAO Review of Forest Service Decisionmaking: Before the Subcomm. on Forests and Public Land Management of the Senate Comm. on Energy and Natural Resources, 104th Cong., 2d Sess. (1996) (Statement of James R. Lyons, Undersecretary for Natural Resources & Environment, Department of Agriculture), available at 1996 WL 27735. (56) Economist' Report, supra note 16, at 9. (57) Whitelaw Testimony, supra note 21, at [paragraph] 24. (58) Id. (59) Id. (60) Id. (61) Id. In recognition of the hard-hit communities, President Clinton stated at the Forest Conference in Portland, Oregon, on April 2, 1993: "[W]e must never forget the human and the economic dimensions of these problems.... [W]e need to do our best to offer new economic opportunities for year-round, high-wage, high-skill jobs." Spotted Owl ROD, supra note 17, at 3. (62) Whitelaw Testimony, supra note 21, at [paragraph] 24. (63) Much of this litigation involved efforts to protect the northern spotted owl, a species dependent upon old-growth Douglas fir habitat For summaries of these efforts, see Sher & Hunting, supra note 11, at 437 (noting that Congress has a habit of responding to environmental controversies by removing appeal authority); Bolduan, supra note 2, at 332 (environmental organizations protested earlier riders' disallowance of legal appeals of timber sales). The U.S. Supreme Court addressed the spotted owl issue in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 115 S. Ct. 2407 (1995) (upholding a Department of Interior regulation under which habitat modification may constitute "harm" for purposes of Endangered Species Act protection). (64) See, e.g., Spotted Owl ROD, supra note 17 (U.S. Forest Service and Bureau of Land Management adopt ecosystem management procedures under which land management policies are implemented with a view to their impacts on the entire ecosystem). (65) Chuck Harris et al, An Assessment of the Social and Economic Characteristics of Communities in the Interior and Upper Columbia River Basins 140 (1995) (on file with author). (66) Id. The study further notes:

Although closures of mills, mines, and other resource processing plants can have significant impacts in the case of some communities, past closures have had little effects on the overall community in the case of others. Many mills, for example, have closed, been sold, opened again, and been closed again in a series of changes over past decades that have not always been related to public land management. Id. (67) Id. at 141-42. (68) In fact, the study found that "[t]owns perceived as timber dominant tend to be further from an interstate highway and relatively isolated, and they also tend to be relatively resilient compared to towns in which other industries were perceived to be dominant." Id. at 120. (69) Whitelaw Testimony, supra note 21, at [paragraph] 26. (70) Id. (71) Pub. L. No. 104-19, [sections] 2001(c)(2), 109 Stat. at 240. (72) 5 U.S.C. [sections] 5597 (1994). (73) Pub. L. No. 104-19, [sections] 2001(c)(5)(C), 109 Stat. at 243. (74) Economist' Report, supra note 16, at 1. (75) Id. at 1-2. (76) Id. (77) See 141 Cong. Rec. H3074 (Mar. 13, 1995) (Yates amendment to H.R. 1159). (78) President's Council on Sustainable Development, Western Regional Team Report of the Natural Resources Task Force 14 (1995) (on file with author). (79) Letter from Senator Slade Gorton (R-Wash.) to Members of the Interior Subcommittee of the Senate Appropriations Committee (Mar. 20, 1995 (on file with author). (80) Id. Senator Gorton has subsequently admitted: "The salvage legislation is about one thing and one thing only, and that is jobs." Furse Seeks Logging Law Repeal, The Oregonian, Dec. 8, 1995, at B3. (81) National Forest, Management Act, 16 U.S.C. [subsections] 1600-1614 (1994). (82) The Secretary of Agriculture may authorize "salvage or sanitation harvesting of timber stands which are substantially damaged by fire, windthrow, or other catastrophe, or which are in imminent danger from insect or disease attack." Id. [sections] 1611(b). (83) 43 C.F.R. [sections] 5473.4(d) (1995). (84) See Pub. L. No. 104-19, [sections] 2001(d), 109 Stat. at 241-44 (regarding timber sales on lands covered by Option 9); id. [sections] 2001(k), 109 Stat. at 246 (addressing section 318 sales). (85) Id. [sections] 2001(a)(3), 109 Stat. at 241. (86) James K. Agee, Fire History of Douglas-Fir Forests in the Pacific Northwest, in Wildlife and Vegetation of Unmanaged Douglas-Fir Forests 25 (1991) (emphasis added). (87) J. Boone Kauffmann, Ecological Relationships of Vegetation and Fire in Pacific Northwest Forests, in Natural and Prescribed Fire in Pacific Northwest Forests 39 (John D. Walstad et al. eds., 1990). (88) Joint Oversight Hearing of the Subcomm. on National Parks, Forest, and Lands and the subcomm. on Resource Conservation, Research, and Forestry of the House Comms. on Resources and Agriculture, 104th Cong., 1st Sess. (Feb. 10, 1995), available at 1995 WL 62959 (testimony of Dr. Arthur Partridge) ("Positive effects are created by many ... forest diseases or insects. ... The living forest is dynamic, cyclic, and periodical ...."). (89) O'Toole, supra note 13, at 87. (90) Id. Indigenous pests present the fewest Problems because they achieve an equilibrium within the ecosystem. Exotic Pests from other region of the world pose the greatest threat to federal forests because they often have no natural enemies in the ecosystem to which they are imported. Ironically, the often have no natural enemies in the ecosystem to which rider have done nothing to oppose the Clinton Administration's adoption of regulations allowing logs (and attendant pests) to be imported from other regions of the world. (91) Beschta et al., supra note 12, at 1-2. (92) Id. at 1. (93) Id. at 2. (94) Id.; see also Letter from Twelve Scientists in Appalachian Region to President Bill Clinton (May 1, 1995) (on file with author). The scientists contended:

Activities associated with excessive salvage operations, like road building and clear cutting, would further degrade and fragment sensitive areas in the Southern Appalachians already suffering from the cumulative effects of private land development and past management activities on public lands. Forest fragmentation and loss of biological diversity would weaken the ability of the Southern Appalachian ecosystem to fight off threats to forest health. Id. (95) See e.g., U.S. Forest Serv., RM-234 Inventory Report for 1992 (1992) (on file with author) (showing that trees on industrial lands have a consistently higher mortality rate than trees on national forest lands). (96) O'Toole, supra note 13, at 86. (97) Id. at 87. (98) See, e.g., Joint Oversight Hearing of the Subcomm. on National Parks, Forests, and Lands and the Subcomm. on Resource Conservation, Research, and Forestry of the House Comms. on Resources and Agriculture, 104th Cong., 1st Sess. (Feb. 10, 1995), available at 1995 WL 10382813 (testimony of Dr. Dominick A. DellaSala) ("[T]hinning will result in even greater forest health problems and fire risks over the long-term"). (99) Idaho Conservation League v. Thomas, No. CV 95-0425-S-EJL, 1995 WL 789239 (D. Idaho Dec. 11, 1995). (100) Id. at (*)1. (101) Id. (102) Id. at (*)2. (103) Id. (104) Id. (105) Id. at (*)3. (106) See No Bidders Turn Up for Sale of Salvage Timber in Idaho, Eugene Register Guard, Nov. 10, 1995, at C8. When an environmental group submitted the high bid on a salvage sale intending to preserve the timber, the Forest Service refused to award the sale to the group. See Endangered Species Northwest, Issue No. 13 (Jan. 30, 1996) (on file with author). The sale was initially offered at a price of approximately thirty cents per tree. Id. (107) Idaho Conservation League, 1995 WL 789239, at (*)9-10. (108) See, eg., Western Ancient Forest Campaign, A Report to Congress and the American People on the Forest Health Rider (Jan. 5, 1996); Headwaters, Timber Sale Victims of the Logging without Laws Rider (Nov. 30, 1995). (109) Timber Salvage Situation on Public Lands Affected by Insects, Disease and Fire: Hearing before the Subcomm. on Resource Conservation, Research, and Forestry of the House Comm. on Agriculture, 104th Cong., 1st Sess. 181 (Feb. 10, 1995) (statement of R. Neil Sampson). (110) National Forest Management Act, 16 U.S.C. [sections] 1611(b) (1994); 40 C.F.R. [sections] 5473.4(d) (1995) see supra note 7. (111) Even within the category of salvage sales the definition of "salvage" is sufficiently broad as to encompass healthy trees. The Forest Service has begun taking advantage of this broad definition by reclassifying sales of healthy trees as salvage sales. See Wilderness Soc'y, Reclassifying Timber Sales Under the Logging-Without Laws Rider (1995); see also Western Ancient Forest Campaign, supra note 108. (112) Pub. L. No. 104-19, [sections] 2001(d), (i), 109 Stat. at 244, 245-46. (113) Id. [subsection] 2001-2007, 109 Stat. at 240-48. (114) Letter from Senator Slade Gorton, supra note 79. Senator Gorton also asserted that "the window of opportunity that the agencies have to conduct these forest health and salvaging operations gets smaller with each passing day, and if we do not act soon it will set the stage for another devastating wildfire season this summer." Id. (115) 141 Cong. Rec. H3153 (Mar. 14, 1995) (statement of Rep. Taylor). (116) 141 Cong. Rec. S10,464 (July 21, 1995) (statement of Sen. Gorton). (117) 141 Cong. Rec. S4875 (Mar. 30, 1995) (statement of Sen. Gorton). (118) Letter from Senators Slade Gorton (R-Wash.), Frank Murkowski (R-Alaska), & Larry Craig (R-Idaho), and Representatives Don Young (R-Alaska), Charles Taylor (R-N.C.), and Pat Roberts (R-Kan.), to Secretary of Agriculture Dan Glickman and Secretary of the Interior Bruce Babbitt (July 27, 1995) (emphasis added) (on file with author) [hereinafter Letter from Senator Slade Gorton et al.]. (119) Id. (120) See Northwest Forest Resources Council v. Glickman, No. 95-6244-HO, 1995 U.S. Dist. LEXIS 13300 (D. Or. Sept. 8, 1995) (industry plaintiff suing to have court overrule Administration officials and increase the amount of timber sold pursuant to the salvage logging rider). (121) Representative Elizabeth Furse (D-Or.) circulated a memorandum to her colleagues on December 19, 1995, identifying six ways in which Congress was misled by the sponsors of the salvage logging rider. Rep. Elizabeth Furse, Furse Takes Lead in Repealing Timber Salvage Rider, Press Release (Dec. 7, 1995). Representative Purse contended: 1) Congress was told the rider was an emergency measure to remove dying trees, although the rider is being used to "clearcut healthy forests"; 2) Congress was told the rider would create revenue for the U.S. Treasury, although the rider will end up costing taxpayers billions of dollars; 3) Congress was told the rider would help small businesses and landowners, although the rider will damage the property rights of private timberland owners by driving down timber prices; 4) Congress was told the rider would not harm threatened fish and wildlife, although timber is being cut in areas where it win do just that; 5) Congress was told the rider would speed up implementation of President Clinton's Forest Plan, although the rider has undermined that plan by requiring the cutting of old growth reserves which the Forest Plan was crafted to protect; and 6) Congress was told the section 318 sale provision in the rider would only speed the harvest of a small number of old sales, although a court has since interpreted the rider as applying to every timber sale that has ever been offered in Oregon or Washington. Id.

Representative Furse has gathered over 100 co-sponsors for a bill repealing the salvage rider. In addition, as discussed below, 17 Senators and Representatives have filed an amicus brief in Northwest Forest Resources Council v. Glickman, Nos. 95-36038, 95-36042 (9th Cir. filed Oct. 17, 1995), arguing that Sen. Gorton and the timber industry's interpretation of the rider is inconsistent with Congress's intent when it adopted the rider. See Amicus Brief of United States Senator Patrick J. Leahy and Representatives David E. Bonior, Elizabeth Furse, Jim McDermott, George Miller, David E. Skaggs, Gerry E. Studds, Bruce Vento, Sidney R. Yates, and Karen McCarthy [hereinafter Amicus Brief]. An attempt by Senator Murray (D-Wash.) to repeal the rider, based in part by misrepresentations by its sponsors, was narrowly defeated in the Senate. See 142 Cong. Rec. S2005-28 (daily ed. Mar. 14, 1996). (122) The appropriations committees in the House and Senate did, however, prepare reports on an earlier version of the rider that was vetoed by President Clinton. See H.R. Rep. No. 71, 104th Cong., 1st Sess. 1 (1995); Sen. Rep. No. 17, 104th Cong., 1st Sess. 1 (1995); Conf. Rep. No. 124, 104th Cong., 1st Sess. 1 (1995). (123) See 141 Cong. Rec. H6637 (daily ed. June 29, 1995) (statement of Rep. David Obey (D-Wis.)) ("The timber issue is important to a lot of people in this House, including me, and just for the heck of it, I would like to know what the agreement is and see it in black and white before we debate it. It might be kind of quaint, but it might also be kind of useful."); 141 Cong. Rec. H6638 (daily ed. June 29, 1995) (statement of Rep. Peter Defazio (D-Or.)) ("We are being asked to accept a pig in a poke. We are being told that the Democrat Administration has entered into a secret agreement not available in writing with the Republican majority which we are going to be asked to vote on within 15 minutes here in the House of Representatives .... This is an outrage, this is an extraordinary outrage.") 141 Cong. Rec. H6639 (daily ed. June 29, 1995) (statement of Rep. Elizabeth Furse (D-Or.)) ("It is impossible for us to know whether this is going to be good for our watershed plans or bad for them, because we do not know the language."). (124) 141 Cong. Rec. H5559 (daily ed. May 24, 1995). The focus of the limited discussion that preceded the vote, however, was on the need to "salvage" insect-infected and fire-burned timber. (125) See Pub. L No. 104-19, [sections] 2001(b), 109 Stat. at 240. (126) Id. [sections] 2001(a)(3), 109 Stat. at 241. (127) Id. [sections] 2001(B)(1), 109 Stat. at 241. To ensure that there is no doubt that salvage sales are to be offered m addition to sales that have gone through the planning process, the rider also provides: "The Secretary concerned shall not substitute salvage timber sales conducted under [this subsection] for planned non-salvage timber sales," Id. [sections] 2001(c)(7), 109 Stat. at 243. (128) See supra notes 108-11 and accompanying text. (129) See Wilderness Soc'y, supra note 111 (summarizing sales that have been reclassified from "healthy" to "salvage" since adoption of the salvage logging rider); Western Ancient Forest Campaign, supra note 108 (summarizing reclassified sales). (130) Spotted Owl Rod, supra note 17, at 25. (131) Id. at 29. (132) See Seattle Audubon Soc'y v. Moseley, 1996 WL 165069 (9th Cir. Apr. 10, 1996), aff'g Seattle Audubon Soc'y v. Lyons, 871 F. Supp. 1291, 1325 (W.D. Wash. 1994) (finding Secretaries of Agriculture and Interior acted within lawful scope of discretion in adopting 1994 forest management plan). (133) Pub. L. No. 104-19, [sections] 2001(d), 109 Stat. at 244. (134) See Oregon Natural Resources Council v. Thomas, No. 95-6272-HO, slip op. at 7 (D. Or. Dec. 4, 1995). (135) See Memorandum of Agreement Under Pub. L. 104-19 Between United States Department of Agriculture, United States Department of the Interior, United States Department of Commerce, and United States Environmental Protection Agency (Aug. 9, 1995) ("The purpose of this MOA is to reaffirm the commitment of the signatory parties to continue their compliance with the requirements of existing environmental law while carrying out the objectives of the timber salvage related activities authorized by Public Law 104-19."). (136) See, e.g., Sher & Hunting, supra note 11 (discussing previous congressional efforts exempting logging in the Pacific Northwest from federal environmental protection laws). (137) Pub. L No. 104-19, [sections] 2001(k), 109 Stat. at 246. (138) Id. [sections] 2001(k)(1), 109 Stat. at 246. (139) Id. [sections] 2001(k)(2), 109 Stat. at 246. (140) H.R. Rep. No. 71, 104th Cong., 1st Sess. 22 (1995). (141) Letter from Senator Slade Gorton, supra note 79. The reference to "tens of millions of dollars of liability from the government for contract cancellation" is disingenuous. The Senator knew or should have known that Forest Service and BLM timber sale contracts contain provisions that allow cancellation of the contract when necessary for environmental reasons. No court has determined that the federal government would be liable under these contracts, and the assertion of liability by Senator Gorton as a tactic to gain votes for the salvage rider will almost certainly be exploited against the federal government if the contracts are cancelled and liability becomes an issue. (142) Department of Interior and Related Agencies Appropriation Act of 1989, Pub. L. No. 101-121, [section], 103 Stat. 701, 745 (1989). (143) 141 Cong. Rec. S4875 (daily ed. Mar. 30, 1995) (statement of Senator Gorton). (144) During debate on the rider on the Senate floor, for example, Senator Gorton stated: "Subsection (k) releases sales that were authorized under section 318 of the fiscal year 1990 Interior Appropriations bill. Roughly 300 million board feet of timber sales have been held up due to agency gridlock over the marbled murrelet." 141 Cong. Rec. S10,464 (daily ed. July 21, 1995). This 300 million board foot figure corresponds with the amount in the section 318 sales that had been held up pending review by the U.S. Fish and Wildlife Service. (145) Letter from Senator Slade Gorton et al., supra note 118, at 2. (146) Id. at 1, 3. (147) Northwest Forest Resource Council v. Glickman, No. 95-6244-HO, 1995 U.S. Dist. LEXIS 13300 (D. Or. Sept 8, 1995). (148) Memorandum from James R. Lyons, Under-Secretary of Agriculture, Natural Resources and Environment, to Jack Ward Thomas, Chief, U.S. Forest Service (Aug. 22, 1995) (on file with author). (149) No. 95-6244-HO, 1995 U.S. Dist. LEXIS 13300 (D. Or. Jan. 10, 1996). (150) Northwest Forest Resource Council v. Glickman, No. 95-6244-HO, slip op. at 24 (D. Or. Jan. 10, 1996). (151) Pub. L. No. 104-19, [section] 2001(k)(i), 109 Stat. at 246. (152) H.R. Rep No. 104th cong., 1st Sess. 22 (1995) (153) 141 Cong. Rec. S4875 (daily ed. Mar. 30, 1995) (statement of Senator Gorton). (154) See, e.g., H.R. Conf. Rep. No. 124, 104th Cong., 1st Sess. 137 (1995). The district court quotes language from the Report referring to all sales offered, awarded or unawarded ... in the geographic area encompassed by by [section] 318," id., but ignores language later in the same paragraph that "[t]he harvest of many of these sales was assumed under [Option Nine] but their release has been held up," id. This is a clear reference to a specific group of sales that the sponsors had assured their colleagues would be subject to this provision. (155) Northwest Forest Resource Council v. Glickman, No. 95-6244-HO, 1995 U.S. Dist. LEXIS 13300, AT *13 (D. Or. Sept. 8, 1995). (156) See Northwest Forest Resource Council v. Glickman, No. 95-6244-HO, slip op. at 13-19 (D. Or. Jan. 10, 1996). (157) Northwest Forest Resource Council v. Glickman, Nos. 95-36038 & 95-36042 (9th Cir. filed Oct. 17, 1995). (158) See Amicus Brief, supra note 121. (159) Statement by the President on the Ninth Circuit Court of Appeals Decision to Force Additional Sales of Old Growth Timber (Oct. 28, 1995) (on file with author) (The Ninth Circuit has not ruled on the merits - the President's statement refers to the Ninth Circuit's denial of an emergency motion for an injunction pending appeal of the district court's decision.). (160) See Northwest Forest Resource Council v. Glickman, No. 95-6244-HO, slip op. at 16-17 (D. Or. Jan. 19, 1996). (161) Id. slip op. at 6. (162) Id. (163) Id. slip op. at 20. (164) See Declaration of Michael J. Spear in Support of Motion to Stay January 19, 1996 Order, [paragraph] 13, filed in Northwest Forest Resource Council v. Glickman, No. 95-6244-HO (D. Or filed Jan. 24, 1996). (165) Committee on Rules & Admin., U.S. Senate, 102D Cong., Senate Manual Containing the Standing Rules Orders, Laws, and Resolutions Affecting the Business of the United States Senate, rule 16.2 (1992); see also id. at rule 16.4 ("[N]o amendment offered by any other Senator which proposes general legislation shall be received to any general appropriation bill, nor shall any amendment not germane or relevant to the subject matter contained in the bill be received ...."). (166) Constitution, Jefferson's Manual and Rules of the House of Representatives of the United States One Hundred Second Congress, 101st Cong., rule XXI(2) (1991). (167) 437 U.S. 153 (1978). (168) Id. at 190-91. (169) 141 Cong. Rec. D347 (daily ed. Mar. 14, 1995) (Committee on Rules voting 9 to 3 to "waive[] clause 2 of Rule XXI, which prohibits unauthorized and legislative provisions in an appropriations bill."). (170) See generally Sher & Hunting, supra note 11; Bolduan, supra note 2. (171) 141 Cong. Rec. S10, 423 (daily ed. July 20, 1995) (remarks of Senator Murray). (172) 125 Cong. Rec. 18,936-37 (1979) (statement of Senator John Culver (D-Iowa) (regarding a rider attached to the 1978 appropriations bill that directed that the gates of the Tellico Dam be closed). (173) Senator Mark Hatfield (R-Or.), one of the main sponsors of the salvage logging rider, is the chair of the Senate Appropriations Committee. As noted above, Senator Gorton, another principal sponsor of the rider, is the chair of the Interior and Related Agencies Subcommittee of the Senate Appropriations Committee. (174) See 141 Cong. Rec. S10,422 (daily ed. July 20, 1995) (remarks of Senator Murray) ("[T]he language contained in this bill will cause a blizzard of lawsuits, cause political turmoil within the Northwest, and take us right back to where we were 4 years ago."). (175) See Alabama Wilderness Alliance v. Yancy, No. 96T101-E (M.D. Ala. Apr. 10, 1996). (176) See, e.g., Oregon Natural Resources Council v. Thomas, No. 95-6272-HO (D. Or. Dec. 4, 1995) (arguing that salvage sales in the Umpqua National Forest threaten aquatic species and ignore the recommendation of the Forest Service's own experts); Kettle Range Conservation Group v. United States Forest Serv., No, CS-95-357-WFN (E.D. Wash. filed Sept. 8, 1995) (challenging sales in the Colville National Forest associated with a 1994 fire). (177) See, e.g., Sierra Club v. United States Forest Serv., No. 94-6245-TC (D. Or. Sept. 8, 1995) (court lifted injunction based on salvage rider); Native Americans for Enola v. United States Forest Serv., No. 95-1306-MA (D. Or. Feb. 28, 1996) (arguing that sale violates provisions of earlier court order requiring completion of ethnographic survey); Southwest Ctr. for Biological Diversity, Southwest Biodiversity Alert No. 5 (Dec. 9 1995) (on file with author) (reporting that the Southwest Region of the Forest Service attempted to offer sale that would have violated court injunction against logging that threatens the Mexican spotted owl until consultation is completed under the Endangered Species Act - Forest Service withdrew sale after plaintiffs threatened to seek contempt of court charges). (178) 141 Cong. Rec. H3177 (daily ed. Mar. 15, 1995) (statement of Rep. Anthony Beilenson (D-Cal.)) (179) See supra note 7 and accompanying text.