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Federal Document Clearing House
Congressional Testimony
August 12, 2000, Saturday
SECTION: CAPITOL HILL HEARING TESTIMONY
LENGTH: 6734 words
COMMITTEE:
HOUSE resources
SUBCOMMITTEE: FORESTS
AND FOREST HEALTH
HEADLINE: TESTIMONY FOREST SERVICE
ACCESS POLICIES
TESTIMONY-BY: JOHN AYDLETT , CHAIRMAN
BODY:
JOHN AYDLETT SUMMARY OF TESTIMONY--OVERSIGHT
HEARING COMMITTEE ON RESOURCES SUBCOMMITTEE ON FORESTS AND FOREST HEALTH AUGUST
12,2000 RECREATION When the road closings are limiting disable young and old who
have a disability problem, it is restricting their activities but the proposed
plan will completely forbid them from the use of the forests. FOREST INDUSTRIES
Loggers, sawmills, small businesses even down to the gas stations and grocery
stores will seriously be downsized or completely put out of business due to the
lack of incoming funds because of the restrictions of 60 million acres banned
and off limits for commercial industries. ADJACENT PRIVATE LANDOWNERS Landowners
will be affected based on the locations of the 60 million acres that is being
restricted for proper care--namely a cancer diseased forest that we are
experiencing today in this nation. It is a known fact that private land with
timber has been completely wiped out from the la k of proper c e in adjoining
wilderness areas. The cancer has grown from national forests to private land.
Blowdown and bug timber if not checked due to the lack of road access and proper
treatment will spread to private land. Also, a fire hazard is created by lack of
proper management in these roadless areas and could become
dangerous like in California, New Mexico and Arizona. Lots of homes in rural
areas are located close to national forests. LOCAL GOVERNMENT The downsizing of
logging has seriously affected local government where they have had to cut their
operations in many avenues such as schools and maintaining roads. having to
operate equipment badly needing repairs, keeping ditches open, having an
out-of-date library, not being able to pay employees the needed salaries ' and
there is no end to this hardship. This is based on 22% wilderness areas out of
192 million acres in the United States. Now you take 22% and add 60 million on
top of this, 42 million we already have and it makes 102 million which is almost
55% of our national forests will be taken up as isolated land. The budget of
Montgomery County has been drastically cut. The County started this year with
$32,000. Montgomery County is 21 % private land and 75 % national forest, 4%
Corps of Engineers and Ark. Game and Fish Commission land. The Treasurer of
Montgomery County has stated that the 21 % private landowners paid in 1999
property tax revenue of $2,508,724.16 while the 75% forest revenue was
$1,615,834.40. It looks like we need more private landowners in Montgomery
County and less national forests. Look at the differences in revenue. The
Roadless Area Initiative is only one of many massive proposals
coming out of Washington--the 'Road Planning regulations, Forest Planning
regulations, a new fangled bookkeeping system, (which someone told us "it was
not working"), the Chief s Natural Resource Agenda, (which we haven't even heard
of), just to name a few. All of these have been unfunded mandates from the
Administration that have come at enormous cost to the National Forests. And they
have led to a ballooning of the Forest Service Washington Office. Since 1991,
the Washington Office budget has increased 149%, from $121 million to $302
million, or a $180 million increase. In this same period, nearly all Forests
budgets have decreased, many of them more than 50%. Not only have budgets
decreased, but many District Offices have been downsized, consolidated, and some
have been virtually eliminated. With its increased budget, the Washington Office
has increased its employees by 150%, while at the same time more than 5,000 to
8,000 jobs have been eliminated at the Forest and District levels, where it is
most needed. THE LAW In 1964, the public and Congress modified the multiple use
philosophy and set up wilderness areas where there would be no roads, a policy
that continues today. The 1964 Wilderness Act makes abundantly clear that
Congress and Congress only can designate wilderness areas. The Secretary of
Agriculture has only the power to study and recommend areas for designation,
thus lacks any power to designate areas administratively. Simply stated,
wilderness designation is not within the discretion of the Forest Service. This
Roadless Initiative states that unroaded areas are to be managed by roadless
criteria. Sincerely, Alvin Black MONTANANS FOR MULTIPLE USE FOREST SERVICE
EMPLOYEES COMMENT ON ROADLESS INITIATIVE The Roadless Area
Initiative: Politics Makes Poor Policy The Forest Service Council is the legal
and elected representative of 14,000 Forest Service employees contained in 92
local Forest Service unions across the country. This represents about 50% of
Forest Service employees. The Forest Service Council is part of the National
Federation of Federal Employees, and we have recently affiliated with the
International Association of Machinists and Aerospace Workers. Roadless
areas have been important to this agency since the Forest Service
began. When the National Forest were originally formed in the early 1900's, the
land base was largely unroaded. Administrative, fire access, and recreational
roads were gradually added. After WWI1, the National Forests started supplying
timber to meet consumer demands, and from 195 0 to 1993, the National Forests
produced 10 to 12 billion board feet of lumber a year to supply industrial and
residential needs. Road building was necessary for this timber
production--eventually as many as 2,000 miles per year. In 1964, the
conservation movement, the public and Congress modified the multiple use
philosophy and set up wilderness areas where there would be no roads, a policy
that continues today. Wilderness areas, wilderness study areas, and other
natural areas are now an important part of National Forest management as
authorized by the Wilderness Act and the National Forest Management Act. The
current Administration's recent Roadless Area Initiative would
preclude any future road planning in areas that have not been previously roaded
or managed for timber. Before we comment on this latest proposal we would like
to briefly discuss the existing system as it relates to the proposal. Current
and Proposed Situation The National Forest system contains 192 millions acres.
Of this, 42 million acres, or 22%, are currently preserved in wilderness or
natural areas where road building and timber management is not allowed. The
Roadless Area Initiative, according to the latest figures, will
designate another 54 million acres as permanent roadless areas.
This is 28% of the land base of the Forest Service. Both these Roadless
areas together would comprise 50% of the National Forest land base, and
that amount will be withdrawn from multiple use. The impacts would vary greatly,
depending on the part of the country involved. Remote areas far removed from
population centers, would be impacted the most. For example, Alaska's multiple
use area would be reduced from the current 62% to 7%. Idaho's multiple use area
would be reduced from the current 76% to 3 1 %. Nevada's multiple use area would
be reduced from the current 81 % to 26%. Montana's multiple use area would be
reduced from the current 79% to 45%. Washington's multiple use area would be
reduced from 70% to 50%. Other areas, near large population centers--mainly in
the east where there is a larger demand for wilderness areas--would have
minimal, sometimes no, additional roadless areas. Forest
Service employees are very proud of existing Wilderness Areas and the wilderness
ethic that we have promoted as part of our multiple use philosophy. But as can
be seen by the figures mentioned 'above, the proposed roadless additions are
expansive, more than doubling the amount of acres that will no longer be
available for multiple use. Such a significant change in policy for our land use
deserves more careful consideration, because it will greatly impact the
employees and other citizens living on or near Forest Service lands. As
employees, we have concerns about the impacts of such a large and far reaching
proposal Centralized planning and the removal of science from decision making We
employees are skeptical of Washington bureaucrats' attitude that they know what
is best for the rest of us. We are concerned that the Roadless
Area Initiative is not being processed as prescribed in the National
Forest Management Act (NFMA) or the Wilderness Act. Many of the National Forests
are in the process of revising their Forest Plan. This latest initiative has
brought some local Forest planning teams to a halt. It appears that the
Roadless Area Initiative is attempting to usurp the authority
of the NFMA planning process. NFMA planning is based on the premise that
decision making for local areas should be made with site-specific, scientific
information for that particular area. But the Roadless Area
Initiative is a one plan fits all" prescription and lumps 54 million acres
together that are obviously quite different, both in physical aspects and in
social/cultural dimensions. This initiative has totally bypassed scientific
analysis. Forest Service employees find it ironic the Committee of Scientists
just finished making their recommendations, and new planning regulations are out
for public comment. Suddenly, out of the blue, the Roadless
Area initiative comes from Washington, negating the hard work that has
gone into the Forest Planning process (as ponderous and bureaucratic as it is!)
Consolidation to Washington with a deemphasis of local Forest Service offices
This Roadless Area Initiative is only one of many massive
proposals coming out of Washington--the Road Planning regulations, Forest
Planning regulations, a newfangled bookkeeping system, the Chief s Natural
Resource Agenda, just to name a few. All of these have been unfunded mandates
from the Administration that have come at enormous cost to the National Forests.
And they have led to a ballooning of the Forest Service Washington Office. Since
1991, the Washington Office budget has increased 149%, from $121 million to $302
million, or a $180 million increase. In this same period, nearly all Forests;
budgets have decreased, many of them more than 50%. Not only have budgets
decreased, but many District Offices have been downsized, consolidated, and some
have been virtually eliminated. With its increased budget, the Washington Office
has increased its employees by 150%, while at the same time more than 5,000 jobs
have been eliminated at the Forest and District levels. Threats of reprisals
against employees that voice opinions. The Union is very concerned about recent
threats of reprisal from the Administration toward Forest Service employees who
have voiced their concerns about the Roadless Area initiative.
It is totally unacceptable for any employee to be threatened by the
Administration with retirement if they voice questions about the
Roadless Area Initiative. Nor should they be told that they
cannot be talking to certain people. Forest Service employees take pride in
their public service and professionalism. Forest Service employees should be
treated respectfully--most certainly by Forest Service leadership. All employees
should be encouraged to have diverse opinions and to use all their skills to
solve problems and facilitate public relationship and debates. Impact on timber
production The Forest Service's non-wilderness areas currently contain about 50%
of the country's softwood timber. The impact of the Roadless
Area Initiative has yet to be determined, but its impact on timber
production will certainly be significant, because it will lock up another 54
million acres. Thirty-six percent of the remaining non-wilderness areas will be
removed from multiple use and possible timber production. This will either lower
timber production, or it will force more intensive harvesting in areas that are
presently being cut. If cutting back or eliminating timber production is what
the Administration is really trying to achieve, it should be honest about its
intentions, and that should be the focus of this debate. If it is trying to
force more intensive harvesting in areas presently being cut, which may be
contrary to sustainable forestry practices, increased opposition to timber
harvesting would certainly result. Neither of these two avenues is a sound one.
We are asking that a moratorium be placed on this initiative and that all sides
initiate honest communication to diffuse this unpleasant situation. Art
Johnston, Legislative Committee Chairperson, Forest Service Council, Nat.
Federation of Fed. Employees Forest Service's Proposed Road Building Moratorium
Legal Review Prepared for the American Sheep Industry Association Prepared by
Karen Budd-Falen and Gus Redmond Michaels III Date: December 17, 1999 1.
Introduction The January 22, 1998, press release by Mike Dombeck, Chief of the
Forest Service in which he proposed "a major overhaul of the forest road system
including a proposal to halt all road construction in roadless
areas on National Forests" and the subsequent Advance Notice of
Proposed Rulemaking published in the Federal Register, Wednesday, January 28,
1998, pp. 4349-51 is a policy designed to cripple multiple-use of the National
Forest System. An interim policy that "freezes" road construction on federal
forests as well as allows conversion of old roads to trails or the
decommissioning of "ghost roads," is sure to have profound consequences on
persons, who seek to develop their multiple use rights. In fact, the proposed
moratorium would create de facto wilderness in all roadless
areas since people are denied access needed in order to utilize private
inholdings and develop multiple-use rights. A freeze on road new construction
amounts to a freeze on most forest uses within roadless areas. Roadless
areas are potentially an enormous amount of land within the National
Forest System. If the moratorium adopts this broad definition of roadless, it
has the potential of stopping or preventing the improvement of roads in
widespread areas throughout the National Forest System. The method by which the
Forest Service attempts to implement a moratorium policy is questionable in both
a legal and constitutional sense. First, the proposed moratorium completely
undermines the intended forest policy announced by Congress in enacting the
Multiple-Use Sustained Yield Act of 1960(MUSYA), 16 USCA **528-31. Second, the
moratorium raises serious questions regarding access rights to private
inholdings as previously addressed by R.S. 2477, the Alaska National Interest
Lands Conservation Act of 1980 (ANILCA), the Federal land Policy and Management
Act of 1976 (FLPMA) and the National Forest Management Act of 1976 (NFMA).
Third, the moratorium will cause possible conflicts concerning vested hardrock
mineral rights, mineral leases and timber contracts under the General Mining Law
of 1872, the Mineral Leasing Act of 1920 (MLA) and the Federal Roads and Trails
Act of 1964 (FRTA). These statutes along with various Code of Regulations and
Forest Service policies printed in manuals and hand-books recognize rights of
ingress and egress to reach private inholdings or natural resource interests
located within the National Forest System. Adoption of a flat moratorium on the
building new roads within "roadless" areas or preventing
improvements to existing ghost roads under Forest Service jurisdiction will
greatly frustrate these rights, possibly constituting a "regulatory taking" in
violation of the Fifth Amendment of the United States Constitution. There are
four avenues of challenge against this proposed rule: (1)The Forest Service is
acting ultra vires beyond the scope of its authority because it lacks the
authority to prohibit construction of roads within national forest boundaries.
(2)Proposed Moratorium Denies Recognized Rights of Access. (3)The Moratorium
Acts as a De Facto Wilderness Designation of All Roadless
Areas. (4)Denial of Access May Constitute a "Taking" or Breach of
Contract. (I)The Forest Service lacks the necessary authority to adopt the
proposed moratorium until Congress authorizes the administration to enact such a
regulation. Article I of the United States Constitution provides that
legislative power is to be vested in Congress. (2)The vast expanse of public
lands naturally gives rise to the needs of rights-of-way and access across such
land. Access to a public natural resources, whether oil, hardrock minerals,
timber rights, grazing allotments, scenery or other, is a precondition to the
use or employment of that resource. For existing roads that pre-date FLPMA (I
976), Revised Statute 2477 (RS 2477), which began as Section 8 of the Mining Act
of 1866, established authority for implied ROWs and easements across public
lands. 43 USC *932. Although FLPMA repealed the Mining Act of 1866, it did not
revoke or terminate any ROWs or easements which historically existed and were in
public use on October 2 1, 1976.43USCA *1769(a). Enactment of the proposed
moratorium would result in a de facto suspension of existing ROWs that
contemplate future construction within roadless areas or the
improvement of an existing ghost road. FSM 2730.2 "Provide access across
National Forest System land to private land that is adequate to secure the
owners thereof a reasonable use and enjoyment of their land. The wilderness
ethic seeks to preclude any type of access other than walking on foot. Federal
wilderness areas are only established by an act of Congress. The Wilderness Act
of 1964 designated nearly ten million acres. ANILCA designated 56.4 million
acres in Alaska and Congress has many subsequent smaller designations over the
past ten years. The Forest Service has jurisdiction over approximately 90
million acres of potentially harvestable forest land which amounts to 18% of the
country's commercial timber land. Federal timber policy is guided by three key
statutes. The 1897 Organic Act, 16 USCA *473, that establishes general
guidelines for managing national timber resources, the Multiple-Use Sustained
Yield Act of 1960 (MUSYA), 16 USCA *528, which sets forth a multiple use
philosophy to guide forest management and planning, and the National Forest
Management Act of 1976 (NFMA), 16 USCA * 1 60 1, that mandates extensive
planning as a precondition to Forest Service action and imposes substantive
limitations on Forest Service discretion over timber harvesting decisions. The
1897 Organic Act, 16 USCA *473, established that national forests were to be
administered primarily for timber harvesting and watershed protection. If timber
harvesting is considered a primary or multiple use, the proposed moratorium
clearly frustrates the MUSYA mandate. (3)The Proposed Moratorium is an Illegal
Creation of DeFacto Wilderness by Administrative Regulation. De Facto
Withdrawal. "Withdrawals" are generally considered generic decisions to rule
certain activities off-limits on specific tracts of federal lands. The Forest
Service is not authorized to frustrate Congress' intent behind the passage of
FLPMA by freezing road construction through administrative procedures and agency
discretion. The power of withdrawal is reserved by Congress. The Secretary of
Agriculture shall eview ach area in the national forests classified as
"primitive" and report his findings to the President. The President shall advise
the United States Senate and House of Representatives of his recommendations
with respect to the designation as "wilderness" ach recommendation of the
President for designation as "wilderness" shall become effective only is so
provided by an Act of Congress. (Emphasis added) (4)Remedies and Taking of
Private Property Under the Fifth Amendment. No person shall be e deprived of
life, liberty or property, without due process of law, nor shall private
property be taken for public use, without just compensation. U.S. Constitution,
Amendment V. Conclusion: The proposed moratorium on road building within
roadless areas has the potential to cripple intensive multiple
uses within the National Forest System. Not only is this contrary to the
Congressional declaration behind the MUSYA, the Forest Service may lack the
enabling power to promulgate such a regulation. Adoption of such a moratorium
will have profound adverse impacts on the right of access enjoyed by all forest
users. Various forest users have different levels of property interests that are
guaranteed a right of access for reasonable use and enjoyment of their
interests. The denial of a right of access may constitute an illegal taking of
property with just compensation in violation of the Fifth Amendment of the
United States Constitution. In other cases, it will place the federal government
in breach of contract or lease, not to mention, a possible denial of procedural
due process embodied in FLPMA and the FRTA. JOHN AYDLETT CHAIRMAN MONTGOMERY
COUNTY ADVISORY COMMITTEE PRESIDENT CONCERNED CITIZENS OF THE OUACHITA NATIONAL
FOREST, INC.
LOAD-DATE: September 6, 2000, Wednesday
