Legislative history of the timber and salvage amendments enacted in the 104th Congress: a small victory for timber communities in the Pacific Northwest.

In 1995, after years of frustration, the voices of the people who live and work in Pacific Northwest timber communities were finally heard. That year marked the first time since the listing of the northern spotted owl as a threatened species(1) that these communities could claim a small victory and hope to return to work harvesting forest products for the benefit of all Americans.

Salvage and timber provisions were included in the Fiscal Year 1995 Rescissions Act(2) - a bill that rescinded well over $10 billion of 1995 appropriations in an effort to provide a modest down payment to reduce the nation's deficit. The two driving forces behind the provisions were to create much-needed jobs in timber communities and to reduce the fire hazard presented by dangerous amounts of dead and dying timber built up on the floors of our national forests.

In 1994, devastating wildfires ravaged forests in western states.(3) Forest Service and Bureau of Land Management lands were particularly ripe for forest fires because of the excessive fuel load built up on the forest floor.(4) This fuel, composed of dead, dying, insect-infested, and diseased timber, had built up due to a lack of active management of federal forest lands. Active management entails the thinning and removal of insect-infested trees to promote forest health.(5)

After the 1994 wildfires, timber still remained on the forest floor, much of it retaining some of its economic value. Litigation by environmentalists and overly burdensome regulatory requirements have slowed the ability of even President Clinton's land management agencies to prepare, offer, and award salvage timber sales. With each passing day, salvage timber loses economic value.

The timber and salvage amendments included in the Rescissions Act were developed in order to expedite agency efforts to prepare salvage sales and also to limit the opportunity for frivolous lawsuits, while still providing environmental protections in an expedited period of time. The House of Representatives initiated the legislative activity on the timber and salvage amendments included in the Rescissions Act.(6) The House Resources Committee held hearings on the need for salvage legislation and developed its amendments to the Rescissions bill based upon the hearings' findings.(7)

The primary difference between the House and Senate versions of the timber and salvage provisions was that the House bill included a mandatory salvage board foot harvest requirement.(8) The Senate version, however, did not include a board foot mandate, but instead directed the appropriate Secretary to harvest salvage timber to the "maximum extent feasible."(9) The Senate version did not include a mandatory board foot requirement for two reasons. a mandatory board foot requirement would have reduced the likelihood of garnering enough support for the provision in the Senate, and further, the discretionary language provided an opportunity to illustrate the Clinton Administration's commitment, or lack of commitment, to timber-dependent communities in the Northwest.

When the Rescissions legislation came to the floor of the Senate, Senator Patty Murray (D-Wash.) offered an amendment to replace the timber and salvage provisions included in the bill with essentially meaningless and hortatory language.(10) The Senate rejected the Murray amendment by a vote of 49-48.(11)

In the end, the version signed into law by the President did not include a mandatory board foot harvest requirement.(12) By opting for discretionary language, Congress created an opportunity to assess the Administration's commitment to conducting a salvage timber program. After the 1994 wildfires, Administration officials stated that they would implement an aggressive, salvage program.(13) Even with the flexibility provided to the Administration in the Rescissions Act, the Administration has yet to meet even its own modest board feet projections for salvage harvest in fiscal year 1995.(14)

While the salvage provision was national in scope, two other provisions were included in the Rescissions Act relating to timber sales in the Pacific Northwest.(15) Subsection 2001(d) addresses timber sales prepared under the President's Forest Plan for the Pacific Northwest,(16) and subsection 2001(k) addresses federal timber sales awarded but not released in the region of Oregon and Washington.(17)

Subsection 2001(d) originated in the Senate Rescissions bill and contained language that would provide legal sufficiency for individual timber sales prepared under the President's Forest Plan, otherwise known as Option Nine.(18) The provision was drafted, in large part, to enable the Administration to achieve its annual harvest goal of 1.1 billion board feet, as promised to the people of Oregon and Washington in the President's Forest Plan.(19) That modest goal is just over twenty percent of the annual harvest obtained in the 1980's and is far below forest regeneration rates.(20)

During Option Nine's drafting, environmentalists filed lawsuits challenging twelve timber sales prepared under the plan, further highlighting the need for the language insulating these sales from frivolous legal challenges.(21) Subsection 2001(d) was drafted to remove the opportunity for future legal challenges to individual timber sales prepared under Option Nine. The language does not provide legal sufficiency for all of the President's Forest Plan, but only for individual timber sales prepared pursuant to that modest plan.(22)

Subsection 2001(k) covers timber sales that were awarded, but not released, dating back to fiscal year 1990.(23) The total amount of timber at issue is roughly 650 million board feet, which is slightly more than one-half of the annual harvest promised under Option Nine. If not released, the federal government will be subject to damage claims of well over $100 million.(24) Despite the fact that this provision was discussed at length in committee reports and during floor debates,(25) opponents of the overall provision have recently characterized these provisions as "a scandalous ploy to clearcut healthy old-growth trees."(26)

Subsection 2001(k) was included as part of the timber and salvage provisions in the Rescissions Act for two reasons: 1) to avoid the immense potential financial liability to the federal government for contract cancellations and potential damage claims, and 2) to get timber and jobs flowing back to area mills. The majority of the timber sales covered by the provision were authorized in section 318 of the Fiscal Year 1990 Interior Appropriations Act,(27) but other post-1990 sales were affected as well.(28) Section 318 of the Fiscal Year 1990 Interior Appropriations Act expressly authorized the sale of timber in the region of Oregon and Washington.(29) In spite of that authorization, numerous timber sales were held back by the land-managing agencies in order to provide habitat for the marbled murrelet, a bird species threatened in that region but not elsewhere.(30)

During negotiations with the Administration over the final language eventually signed by the President, Administration officials received a list of the sales covered by the provision. Despite the fact that the Administration was given this list, it argued in federal court that the provision only applied to those sales specifically authorized in the Fiscal Year 1990 Interior Appropriations Act.(31) In November 1995, Federal District Judge Michael Hogan ruled that subsection 2001(k) included all sales in the region of section 318 whether pursuant to that section or not. (32) The Ninth Circuit declined to issue an emergency stay of the ruling based upon the Administration's appeal.(33)

The Administration was also taken to court to challenge its interpretation of subsection 2001(k) - namely, the phrase, "known to be nesting."(34) Subsection 2001(k)((2) of the Act states that if a threatened or endangered bird is "known to be nesting, in the sale unit area, the Administration cannot harvest that sale unit. The Administration must instead, according to subsection 2001(k)(3), provide alternate timber in exchange for the timber retained to protect the bird. These two provisions, subsections (k)(2) and (3), were expressly included by Congress to provide protection to threatened or endangered bird species inhabiting a sale unit.

Instead of implementing the provision in accordance with its plain meaning, the Administration decided to substitute its own interpretation of the phrase known to be nesting, with its current standard, which includes the fact that the bird has flown through a forest unit as proof that it occupies a particular timber stand.(35) The Administration's standard was specifically rejected by members of Congress during negotiations over the provision.(36) Judge Hogan recently ruled against the Administration's use of its own standard and stated that in order to implement subsection 2001(k)(2), "the agency must find that a murrelet is (1) currently (2) nesting (3) within sale unit boundaries. This finding must be based on the observation of evidence located sub-canopy within sale unit boundaries."(37) This ruling is consistent with the intent of the authors of the provision. It is anticipated that the Administration will appeal Hogan's ruling to the Ninth Circuit.

It has been nearly six months since the date of enactment of the Rescissions Act and all the Administration has done is file lawsuits - and even at this it has not been successful. If one compare's the Administration's promises with its accomplishments, an alarming pattern emerges. The Administration talks a good game, but fails to deliver on these promises. The Administration promised an "aggressive" salvage program but has failed to produce such a program, even with the expedited procedures allowed for under the Rescissions Act. Clinton Administration officials promised the people of Oregon and Washington an annual harvest of 1.1 billion board foot under Option Nine. The Rescissions Act protected it from frivolous lawsuits challenging timber sales prepared under Option Nine, but the Clinton Administration still has not even come close to keeping its commitments to the people of Oregon and Washington.(36)

A Rebuttal to Professor Axline

Professor Axline's article, Forest Health and the Politics of Expediency,(39) was short on facts and long on rhetoric. After reading the article, the reader is led to believe that the timber and salvage amendments will result in the harvest of the last old-growth tree in the Pacific Northwest - nothing could be further from the truth. Here are the facts:

First, the only provision in the law that requires the harvest of timber is section 2001(k).(40) We believe both Option Nine and the timber salvage provisions to be discretionary. Thus, if the Administration elects to harvest timber under Option Nine or to salvage timber, it is free to do so without the threat of frivolous lawsuits, but the law does not require it to harvest a single tree.(41)

Second, the land involved in the release of the section 2001(k) sales is less than 10,000 acres out of the nearly 30 million acres of federal forest land in Oregon and Washington - fewer am one in every 3000 acres.(42) If this section were made permanent law, with new harvests every year, in one thousand years less than one-half of our federal forest land would have been harvested even once.

Third, the law does not mandate unsustainable harvest levels in the Pacific Northwest. The volume of timber harvest required by section 2001(k) is roughly 500 million board feet, about one-tenth of the historic timber harvest volume in the Pacific Northwest - a harvest that still falls far below forest regeneration rates.(43)

Professor Axline also clearly missed the mark on why Congress adopted the timber and salvage amendments. The answer is simple. jobs. The common thread that binds together the three provisions in the law - salvage, Option Nine, and region of "section 318" timber sales - is the hope that at least a few of the more than 21,000 timber-related jobs lost in the Northwest since 1989 would be restored.(44)

Professor Axline states that the timber and salvage law erodes "natural forest qualities, that are important to residents of the Pacific Northwest not directly employed by the timber industry.(45) Natural forest qualities," according to the author, include water supply and quality for the region. In addition, Professor Axline states that solely unharvested public forest lands attract jobs to the Northwest.(46) Conveniently forgotten in the author's rhetoric is this. Timber is a renewable resource, one that provides a multitude of benefits, including home construction, paper products, contribution to the local tax base and regional economy, and school construction, to name but a few. These positive effects benefit far more than those individuals directly employed by the industry.

Professor Axline also relies upon biased Wilderness Society figures as proof that the salvage and timber amendments will. cost the taxpayer $330 million(47) when, in fact, any amendment to the deficit reduction legislation had to result in a net gain in revenue to be included in the proposal. The nonpartisan Congressional Budget Office, the government agency that provides Congress and federal agencies with an objective accounting of the costs and savings associated with budget and policy matters, determined that the amendment would generate &84 million for the taxpayer not cost the taxpayers money.(48)

Finally, Professor Axline states that the legislative process was "bent to gain adoption of the rider."(49) The provision was not secretly included in the Fiscal Year 1995 Rescissions Act as the author implies,(50) but was the subject of committee hearings, letters to other U.S. Senators, floor debate, and extensive negotiations with the Administration.(51) In fact, the author utilized information from the very committee hearing reports, floor debates, and correspondence on the issue, in order to substantiate the article's conclusion - information that the conclusion insits must not exist.(52)

Despite Professor Axlines rhetoric, the timber and salvage amendments included in the Rescissions Act are extremely limited in scope and certainly will not result in the harvest of the last old-growth tree in the Pacific Northwest. The law hopes to create and retain a modest number of timber jobs. Implementation of the law will generate revenues for the American taxpayer, not cost the taxpayers money. The provision was not developed behind closed doors, as suggested by the author, but under the full sunshine of public review.

The Rescissions Act was carefully written to accomplish two goals. 1) to restore a modest number of jobs in timber communities and 2) to clear away dead and dying trees from our nation's forests to restore forest health. The Act represents a small victory for our nation's timber communities but that victory has become largely symbolic because the Clinton Administration has failed to keep its commitments, despite the ample opportunity provided to the Administration by the Rescissions Act.

(*) Senator Slade Gorton (R.-Wash.) sponsored the salvage timber rider that attached to the Emergency Supplemental Appropriations for Additional Disaster Assistance, for Anti-Terrorism Initiatives, for Assistance in the Recovery from the Tragedy that Occurred at Oklahoma City, and Rescissions Act, Pub. L No. 104-19, [subsections] 2001-2002, 109 Stat. 194,240-47 (1995) (to be codified at 16 U.S.C. [subsections] 1611). Julie Kays is a member of Senator Gorton's staff. (1) 50 C.F.R. [subsections] 17.11 (1995). The northern spotted owl was listed as a threatened species on June 26, 1990. 55 Fed. Reg. 26,114 (June 26, 1990). (2) Emergency Supplemental Appropriations for Additional Disaster Assistance, for Anti-Terrorism Initiatives, for Assistance in the Recovery from the Tragedy that Occurred at Oklahoma City, and Rescissions Act (Fiscal Year 1995 Rescissions Act), Pub. L. No. 104-19, [subsections] 2001-2002, 109 Stat. 194, 240-47 (1995) (to be codified at 16 U.S.C. [subsections 1611). (3) See John H. Cushman, Jr., Fire Plan: Thin the Forests - Feds Propose Limited Logging, Denver Post, Dec. 12, 1994, at A1; More Crews Battle E. Oregon Fires, The Oregonian, Aug. 31, 1994, at B3. (4) Hugh Dellios, Western Wildfires - Private Desires Run Up Against Public Safety Needs, Chicago Trib., Oct. 2, 1994, at 1; Joe Garner, Danger Smolders in the Hills - As State's Mountain Population Soars, So Does the Chance Fire Will Send Dreams up in Smoke, Rocky Mountain News, July 24, 1994, at A8. (5) See Cushman, supra note 3, at A1. (6) Timber Salvage Situation on Public Lands Affected by Insects, Disease, and Fire: Before the Subcomm. on Resource Conservation, Research, and Forestry of the House Comm. on Agriculture, 104th Cong., 1st Sess. (1995). (7) Id. (8) H.R. 1159, 104th Cong., 1st Sess. [subsections] 307(b)(2) (1995). (9) S. 617, 104th Cong., 1st Sess. [subsections] 2001(a)(4) (1995). (10) 141 Cong. Rec. S4869-70 (daily ed. Mar. 30, 1995) (Senator Murray's amendment to S. 617). (11) 141 Cong. Rec. S4882 (daily ed. Mar. 30, 1995) (Senate vote on Murray amendment). (12) Pub. L. No. 104-19, [subsections] 2001(b)(1), 109 Stat. at 241. (13) Gorton Faults U.S. on Logging, Seattle Times, Sept. 24, 1994 at A10 (quote by James Lyons, USDA Assistant Secretary). (14) Timber Salvage Provisions in Rescissions Bill: Hearing Before the Subcomm. on Forest and Public Land Management of the Comm on Energy and Natural Resources, 104th Cong., 1st Sess. (Nov. 29, 1995), available at 1995 WL 703467. (15) Pub. L. No. 104-19, [subsections] 2001(d), 109 Stat. at 244; id. [subsections] 2001(k), 109 Stat. at 246. (16) Id. [subsections] 2001(d), 109 Stat. at 244. (17) Id. [subsections] 2001(k), 109 Stat. at 246. (18) S. 617, 104th Cong., 1st Sess. [subsections] 2001(b) (1995). (19) 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 Spoted Owl 24 (20) See U.S. Forest Serv., History of Annual Harvest in Region 6 (1996) (on file with author) [hereinafter History of Annual Harvest]. (21) Peter D. Sleeth, NW Timber Sales Face Legal Challenge, The Oregonia, Apr. 26, 1995, at E3. (22) H.R. Conf. Rep. No. 124, 104th Cong., 1st Sess. 136-37 (1995). (23) Pub. L. No. 104-19, [sections] 2001(k), 109 Stat. at 246. (24) Memorandum from Gray Reynolds, Deputy Chief, U.S. Forest Service, to Jack Ward Thomas, Chief, U.S. Forest Service (June 1, 1994) (on file with author) (detailing liability for unreleased timber sales authorized under section 318 of Public Law 101-121, 103 Stat. 745). (25) S. Rep. No. 17, 104th Cong., 1st Sess. 122-24 (1995); H.R. Rep. No.71, 104th Cong., 1st Sess. 20-21 (1995); 141 Cong. Rec. S4874-76 (daily ed. Mar. 30, 1995) (floor statement by Sen. Gorton). (26) Salvage Timber Bill Leads to Old-Growth Cuts, Seattle Post-Intelligencer, Dec. 12, 1995, at I2. (27) Pub. L No. 101-121, [sections] 318, 103 Stat. at 745 (1989). (28) Pub. L No. 104-19, [sections] 2001(k), 109 Stat. at 246. (29) Pub. L No. 101-121, [sections] 318, 103 Stat. at 745. (30) 50 C.F.R. [sections] 17.11 (1995) (critical habitat includes Alaska, California, Oregon, and Washington). The marbled murrelet was listed as a threatened species on October 1, 1992.57 Fed. Reg. 45,328 (Oct. 1, 1992). (31) Northwest Forest Resource Council v. Glickman, Nos. 95-6244-HO, 95-6267-HO, (D.Or. Oct. 17, 1995). (32) Id. at 1-2. (33) Northwest Forest Resource Council v. Glickman, No. 95-36042 (9th Cir. Oct. 25, 1995). (34) Federal Defendants, Memorandum in Support of Cross Motion for Summary Judgment and in Opposition to NFRC's Second Motion for Summary Judgment and Scott Timber's Motion for Summary Judgement, Northwest Forest Resource Council v. Glickman, No. 95-6244-HO (D. Or. filed Sept. 27, 1995); Memorandum in Support of Motion for Summary Judgment Scott Timber Co. v. Glickman, No. 95-6267-HO (D. Or. filed Aug. 30, 1995). (35) Northwest Forest Resource Council v. Glickman, No. 95-6244-HO, at 3-7 (D. Or. Jan. (36) See, e.g., 141 Cong. Rec. S10,464 (July 21, 1995) (statement of Sen. Gorton). (37) Northwest Forest Resource Council v. Glickman, No. 95-6244-HO, at 21 (D. Or. Jan. 19, 1996). (38) See Northwest Forest Resource Council, Federal Timber Sale Programs - Western Washington, Oregon and Northwestern California (1995) (chart measuring fiscal year 1995 total sales at 0.34 billion board feet of sawlogs). (39) Michel Axline, Forest Health and the Politics of Expediency, 26 Envtl. L. 613 (1996). (40) Pub. L No. 104-19,[sections] 2001(k), 109 Stat. 246. (41) See id. [sections] 2001(d), 109 Stat. at 244 (Option Nine provisions) id. [section] 2001(b)(1), 109 Stat. at 241 (salvage provisions). (42) Northwest Forest Resource Council, Relative Impacts of Section 2001(k), 109 Stat. at 241 (salvage provisions). Let Timber Sales - Western Washington, Oregon and Northern California (1995) (chart comparing 24 million acres in President's Plan with the 6300 acres affected by section 2001(k) timber sales). (43) History of Annual Harvest, supra note 20. (44) Paul F. Ehinger et al, Mill Closures 1989 - Present (1994) (16,700 jobs lost in Oregon; jobs lost in Washington). (45) Axline, supra note 39, at 616. (46) Id. at 615-16. (47) Id. at 617 (Citing Wilderness Soc'y, Estimated Fiscal Costs of Current Proposals for an Emergency Salvage Timber Sale Program (1995). (48) Congressional Budget Office, Salvage Language (Including Section 318 Impacted), 1995-2000 (undated) (on file with author). (49) See Axline, supra note 39, at 630. (50) Id. at 630-37. (51) Timber Salvage Situation on Public Lands Affected by Insects, Disease, and Fire Before the Subcomm. on Resource Conservation Research, and Forestry of the House Comm. on Agriculture, 104th Cong., 1st Sess. (1995); Rep. No. 17, 104th Cong., 1st Sess. 122-24 (1995); H.R. Rep. No. 71, 104th Cong., 1st Sess. 20-23 (1995); Cong. Rec. S4874-76 (daily ed. Mar. 30, 1995) (floor statement of Sen Gorton). (52) See Axline, supra note 39, at 621, 627, 634.