Community and Forest Protection Act

Mr. President, I rise today to introduce legislation to amend the Graton Rancheria Restoration Act to give the State of California and the local communities of Sonoma, Napa, and Marin counties the opportunity for input and review of the tribe's plan for a major casino in the Bay Area.

I am offering this legislation because the Boards of Supervisors of the local communities impacted by this planned casino have asked me to amend the Graton Rancheria Restoration Act. The Boards of Supervisors of Sonoma, Marin, and Napa counties have each unanimously passed resolutions seeking a change in Federal law to restore the Secretary of Interior's discretion in approving land into trust and allowing the State and local government to have a voice in the process.

Prior to today's introduction I have met with the Presidents of the Sonoma and Marin Boards of Supervisors, the Graton tribe, and Senators Campbell and Inouye the Chairman and Ranking Member of the Indian Affairs Committee.

This week I had a very spirited and frank conversation with Graton Tribal Chairman Greg Sarris and representatives from the casino investors. During the meeting Chairman Sarris committed to work with the local Boards of Supervisors and he committed to look at alternative sites for the casino. Chairman Sarris also said the Tribe and the casino investors would conduct an environmental review based on the criteria laid out in the National Environmental Policy Act, NEPA, before a site is selected. These are positive signs and I have told both the Boards of Supervisors and the Tribe that I would like to see them continue to work together.

This legislation guarantees that the local and State officials have a voice in the process. Without this change to the Graton Rancheria Restoration Act they do not have that voice.

In 2000, Congress passed the Graton Rancheria Restoration Act to restore Federal recognition to the 355 members of the Federated Indians of the Graton Rancheria.

The Graton Tribe's original Rancheria was in the northern Sonoma County town of Graton on land purchased by the Bureau of Indian Affairs, BIA, in 1920 for the ``village home'' of otherwise homeless Miwok and Pomo Indians. The Rancheria was terminated in 1958 when the BIA approved a plan to distribute the assets to resident Indians and remove the Rancheria from Federal trust.

The original version of the Graton restoration bill, H.R. 946, sponsored by Congresswoman Lynn Woolsey in the 106th Congress, passed the House of Representatives with a gaming restriction, to which the Tribe agreed.

In testimony before the House Resources Committee in May 2000, and in other public comments, Graton Chairman Greg Sarris stated that the Tribe had no intention of conducting gaming.

In fact, before the House Resources Committee, Chairman Sarris stated, ``Many may think our motives for restoration have been influenced by the opportunity gaming affords some other recognized tribes. Because our local political constituency, both democratic and republican has opposed any sort of development for environmental reasons, we agreed with these local political forces to not develop a gaming complex. So, as proof, we voted as a tribe to include a non- gaming clause in our bill, stipulating that we will not be a gaming tribe.''

Furthermore, in an article in the Marin Independent Journal on September 21, 2000, Chairman Sarris said, ``All we want is to be formally recognized as Indians and have the same rights that other Indians do for education and health care. We are not interested in gambling.'' I ask unanimous consent to print a copy of this article in the Record.

Senator Boxer sponsored legislation identical to Congresswoman Woolsey's in the Senate, but the gaming restriction was stricken when the bill was ultimately passed as part of the Omnibus Indian Advancement Act of 2000.

The day the legislation passed on December 11, 2000, Senator Boxer stated on the Senate Floor that dropping the gaming restriction was necessary because of opposition to the no-gaming clause by the Senate Committee on Indian Affairs and the Clinton Administration and because, according to Senator Boxer, ``Senator Inouye asserts that the no-gaming clause is unnecessary because the Graton Rancheria have no intention of conducting gaming.''

So what has changed one might ask?

Well, even though the Gratons voluntarily and repeatedly took a no- gaming pledge while their restoration bill was under consideration by Congress, on April 23, 2003, the Tribe and its partner, Stations Casinos of Las Vegas, announced plans to purchase approximately 2,000 acres of land in Southern Sonoma County near Sears Point for the development of a casino.

This site is located on environmentally sensative open space and San Francisco--North Bay tidelands which have been the subject of a decades-long conservation effort by environmentalists and local residents.

This site is roughly 30 miles from San Francisco--along the gateway to Sonoma that leads thousands of travelers into the beautiful wine country each day.

The Tribe's casino proposal has outraged local elected officials and residents who had sympathized with the Tribe's plight and supported their restoration on the condition that they not seek to develop a casino. The Sonoma and Marin County Boards of Supervisors have each passed unanimous resolutions objecting to the Graton casino proposal. In fact, even the Board of Supervisors of neighboring Napa has also passed a resolution against the casino proposal. I ask unanimous consent to print these resolutions and letters from the counties in the Record.

Let me just read one part of the Resolution from Marin County which will give you an idea of the opposition to the Graton tribe's proposed casino:

RESOLVED, that the Board of Supervisors of the County of Marin calls on its elected members of the United States Senate, Dianne Feinstein and Barbara Boxer, and its elected member of the House of Representatives, Lynn Woolsey, to assist the residents of Marin and the entire North Bay to preserve their environment by introducing legislation that would amend the Graton Rancheria Restoration Act and/ or the Indian Gaming Regulatory Act to stop the unregulated creation of tribal lands and to subject development of tribal lands in the Marin and Sonoma Counties at a minimum to the regulatory and approval processes applicable to newly acquired tribal lands by the Indian Gaming Regulatory Act.

While the counties acknowledge that the Graton have a right to be recognized, they object to the site selected by the tribe and they especially object to language in the Restoration Act

that precludes the local community, the Governor, or the Secretary of the Interior from providing input on the suitability of this location for land taken into trust for gaming purposes.

There is a problematic section of the Restoration Act that states, ``Upon application by the Tribe, the Secretary shall accept into trust for the benefit of the Tribe any real property located in Marin or Sonoma County . . .'' According to the Department of the Interior, this language removes any discretion by the Secretary as well as any tribal obligations for consultation with the surrounding community or environmental review, as required by the normal process under the Indian Gaming Regulatory Act for newly acquired land taken into trust for gaming purposes.

According to the Department of the Interior, the tribe must only conduct a hazardous materials review and show title to the land for land to be taken into trust. This could be completed in 9 months--and it is an inadequate review in my opinion.

Since the local communities are seeking a remedy which would restore the Secretary's discretion in approving its land trust application and allow local government to provide input in the process, I am introducing this legislation today that will change the ``shall take land into trust'' to ``may take land into trust.'' This legislation will also require the two-part test that is standard under the Indian Gaming Regulatory Act of 1988 to apply so that the State and local communities have input in the process.

There is precedent for this change. In 1994, legislation was passed restoring the United Auburn Tribe with the same directive to the Secretary of the Interior, requiring that land ``shall'' be taken into trust for the Tribe. One of the restoration act's sponsors, Congressman John Doolittle sponsored an amendment to change ``shall'' to ``may'' after it had been passed, thereby affording the Secretary of Interior discretion in accepting particular parcels of land into trust and local government officials an opportunity to weigh in on the Tribe's proposed site.

The result of that change was that the Auburn Tribe and Placer County officials successfully cooperated in not only identifying a mutually agreeable site, but they signed a Memorandum of Understanding to mitigate potential impacts from the proposed Thunder Valley Casino. And earlier this month, the tribe opened its casino.

Today California is home to 109 federally recognized tribes. 61 tribes have gaming compacts with the State and there are 54 tribal casinos. With more than 50 tribes seeking Federal recognition and approximately 23 recognized tribes seeking gaming compacts from the Governor, revenues from California's tribal gaming industry are expected to surpass Nevada's by the end of the decade.

The dramatic growth in tribal gaming in California has the potential to yield much needed benefits for tribal members in terms of healthcare, education and general welfare, as Congress and California voters intended. However, the question is not whether gaming should be permitted, but rather how and where. Those questions were asked and answered in the Indian Gaming Regulatory Act of 1988, IGRA. But without the modest change made by this legislation, the Graton tribe will be allowed to develop an off-reservation casino outside the requirements established in IGRA, the first time such an exception has ever been made for a California tribe. Allowing this to happen would set a dangerous precedent not only for California, but every State where tribal gaming is permitted.

The changes we are seeking today are extremely modest. We are not reversing any restoration of the tribe. We are not infringing on Native American sovereignty. We are not even blocking the casino proposal. We are only seeking to give the State and the local communities a voice in the process. They were promised the tribe would not open a casino. That promise was broken, so the least we can do is ensure a normal review will take place.

I hope my colleagues will support this legislation and I look forward to working with the Chairman and Ranking Member of the Indian Affairs Committee to pass this legislation quickly.

I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I rise to introduce the Notification of Risk to Personal Data Act of 2003. This legislation will require that individuals are notified when their most sensitive personal information is stolen from a corporate or government database.

Specifically, the bill would require government or private entities to notify individuals if a data breach has compromised their Social Security number, driver's license number, credit card number, debit card number, or financial account numbers.

In most cases, if authorities know that someone is a victim of a crime, the victim is notified. But that isn't the case if an individual's most sensitive personal information is stolen from an electronic database.

Unfortunately, data breaches are becoming all too common. Consider the following incidents which have compromised the records of hundreds of thousands of Americans.

On April 5, 2002, a hacker broke into the electronic records of Steven P. Teale Data Center, the payroll facility for California State employees. The hacker compromises files containing the first initials, middle initials, and last names, Social Security numbers, and payroll deduction information of approximately 265,000 people. Despite the breathtaking potential harm of the crime, the breach was not publicly acknowledged and State employees were not made aware of their vulnerability to identify theft until May 24, 2002--17 days later.

On December 14, 2002, TriWest Health Care Alliance, a company that provides health care coverage for military personnel and their families, was burglarized at its Phoenix, AZ offices. Thieves broke into a management suite and stole laptop computers and computer hard drives containing the names, addressed, telephone numbers, birth dates and Social Security numbers of 562,000 military service members, dependents and retirees, as well as medical claims records for people on active duty in the Persian Gulf.

In February 2003, a hacker gained access to 10 million Visa, MasterCard, American Express Card and Discovery Card numbers from the databases of a credit processor, DPI Merchant services of Omaha, NE. Company officials maintained that the intruder did not obtain any personal information for these card numbers such as the account holder's name, address, telephone number or Social Security number. However, at least one bank canceled and replaced 8,800 cards when it found out about the security breach.

And in March of this year, a University of Texas student was charged with hacking into the university's computer system and stealing 55,000 Social Security numbers.

These are just some examples of the types of breaches that are occurring today. Except for California, which as a notification law going into effect in July, no State of Federal law requires companies or agencies to tell individuals of the misappropriation of their personal data.

I strongly believe Americans should be notified if a hacker gets access to their most personal data. This is both a matter of principle and a practical measure to curb identity theft.

Let me take a moment to describe the proposed legislation.

The Notification of Risk to Personal Data Act will set a national standard for notification of consumers when a data breach occurs.

Specifically, the legislation requires a business or government entity to notify an individual when there is a reasonable basis to conclude that a hacker or other criminal has obtained unencrypted personal data maintained by the entity.

Personal data is defined by the bill as an individual's Social Security number, State identification number, driver's license number, financial account number, or credit card number.

The legislation's notification scheme minimizes the burdens on companies or agencies that must report a data breach.

In general, notice would have to be provided to each person whose data was compromised in writing or through e-mail. But there are important exceptions.

First, companies that have developed their own reasonable notification policies are given a safe harbor under the

bill and are exempted from its notification requirements.

Second, encrypted data is exempted.

Third, where it is too expensive or impractical, e.g., contact address information is incomplete, to notify every individual who is harmed, the bill allows entities to send out an alternative form of notice called ``substitute notice.'' Substitute notice includes posting notice on a website or notifying major media.

Substitute notice would be triggered if any of the following factors exist: 1. the agency or person demonstrates that the cost of providing direct notice would exceed $250,000; 2. the affected class of subject persons to be notified exceeds 500,000; or 3. the agency or person does not have sufficient contact information to notify people whose information is at risk.

The bill has a tough, but fair enforcement regime. Entities that fail to comply with the bill will be subject to fines by the Federal Trade Commission of $5,000 per violation or up to $25,000 per day while the violation persists. State Attorneys General can also file suit to enforce the statute.

Additionally, the bill would allow California's new law to remain in effect, but preempt conflicting State laws. It is my understanding that legislators in a number of States are developing bills modeled after the California law. Reportedly, some of these bills have requirements that are inconsistent with the California legislation. It is not fair to put companies in a situation that forces them to comply with database notification laws of 50 different States.

I strongly believe individuals have a right to be notified when their most sensitive information is compromised--because it is truly their information. Ask the ordinary person on the street if he or she would like to know if a criminal had illegally gained access to their personal information from a database--the answer will be a resounding yes.

Enabling consumers to be notified in a timely manner of security breaches involving their personal data will help combat the growth scourge of identity theft. According to the Identity Theft Resources Center, a typical identity theft victim takes six to 12 months to discover that a fraud has been perpetuated against them.

As Linda Foley, Executive Director of the Identity Theft Resources center puts it: ``Identity theft is a crime of opportunity and time is essential at every junction. Every minute that passes after the breach until detection and notification increases the damage done to the consumer victim, the commercial entities, and law enforcement's ability to track and catch the criminals. It takes less than a minute to fill out a credit application and to start an action that could permanently affect the victim's life. Multiply that times hundreds of minutes, hundreds of opportunities to use or sell the information stolen and you just begin to understand the enormity of the problem that the lack of notification can cause.''

If individuals are informed of the theft of their Social Security numbers or other sensitive information, they can take immediate preventative action.

They can place a fraud alert on their credit report to prevent crooks from obtaining credit cards in their name; they can monitor their credit reports to see if unauthorized activity has occurred; they can cancel any affected financial or consumer or utility accounts; they can change their phone numbers if necessary.

I look forward to working with my colleagues to pass this vitally needed legislation. This bill will give ordinary Americans more control and confidence about the safety of their personal information. Americans will have the security of knowing that should a breach occur, they will be notified and be able to take protective action.

I ask unanimous consent that the text of the bill be printed in the Record.

I rise to introduce with Senator Wyden a bill to reduce the risk of catastrophic fire in our country's magnificent national forests.

No one who watched last week as Arizona's community of Summerhaven on Mount Lemmon burned can doubt the importance of this issue. My heart goes out to the residents of Summerhaven, and to the others who will be displaced by the fires yet to come this summer.

Americans know that there is something wrong with our national forests. For too long we have suppressed fires, gradually letting brush and small trees multiply until many of our forests are now choked by a dense thicket.

Today, there are 57 million acres of Federal lands at the highest risk of catastrophic forest fires. If we do not take action now, these forests could go up in smoke. This bill we are introducing today is balancing, and it will reduce the risk of catastrophic fire in our country's magnificent national forests.

This legislation would speed up the environmental review process-- without sacrificing the most important environmental protections. It also would protect the communities which face the highest risk and safeguard old growth stands and large trees. And it would include sensible provisions on judicial review that will help projects go forward quickly without compromising our independent judiciary. These are provisions that makes sense, and I hope that my colleagues will support the bill.

We have crafted our bill around three fundamental principles:

We should focus limited Federal resources on protecting communities and on the forest lands truly most at risk;

We should speed up the environmental review process, but without sacrificing the most important environmental protections; and

We should protect old growth stands and large trees.

Let me show how the bill achieves these three goals.

First, the bill prioritizes our efforts. Many people believe that we should protect communities first. The bill does so. Seventy percent of the funding is directed to the wildland-urban interface near communities.

Of course, conditions vary by State. The bill allows Governors to adjust the percentage of work that is to be done within the wildland-- urban interface for their State, up to a maximum of 75 percent, or down to a minimum of 50 percent.

By way of contrast, H.R. 1904, which passed the House, includes no focus on protecting communities. All the money can be spent far from communities under H.R. 1904, even if the Governor of a State wishes otherwise.

Senator Wyden and I believe that in addition to protecting communities, there are some forest lands that should be thinned to ensure that catastrophic fires do not devastate the forest and eliminate habitat for the species that have there.

In the last century, Americans have rigorously suppressed fires, stamping them out whenever they start. In certain forests like ponderosa pine, these fires would naturally have cleared out the brush and small trees every 10 or 20 years or so.

In the absence of these fires, brush has grown into ``doghair thickets'' with dangerous levels of fuel loadings. When fires burn now in these forests, they will be so hot that they won't just clear out the brush but will kill the large trees and often scorch the soil.

These are the forests where we need to focus our efforts. We thus target thinning projects to forests that are both Fire Regime I and Condition Class 3. Fire Regime I forests are those that used to have low-intensity, brush-clearing fires; and Condition Class 3 forests are the most altered from their natural condition. The combination of Fire Regime I and Condition Class 3 are the highest priority lands for treatment.

We also direct projects to municipal watersheds and diseased or windblown forests that are in Condition Class 3. If we don't protect the municipal watersheds, catastrophic fires could strip off the tree cover that prevents soils from eroding into creeks and lakes. Municipalities' water quality could suffer.

In contrast to our bill, H.R. 1904 fails to prioritize brush-clearing projects for the areas that need it the most. Instead, H.R. 1904 provides expedited processes for lands that are only moderately altered by fire suppression--Condition Class 2 lands in addition to Condition Class 3.

In many of the forests where H.R. 1904 would direct brush-clearing work, there naturally would have been severe fires that burned all the trees in the stand. After a thinning project, fires in these forests will still behave the same way, scorching and killing most of the trees. Thus, much of the thinning called for in H.R. 1904 would have little effect on the fire behavior or forest health.

Senator Wyden and I have worked very hard to develop a bill that speeds up the review process so important work can get done without sacrificing environmental protections.

Almost everyone agrees that we need to work quickly to protect the areas immediately around communities. There is little controversy or debate over these projects.

The Forest Service has proposed an analytical short-cut for these projects, which requires very little environmental analysis and no formal pubic comment process or administrative appeal.

There is some uncertainty, however, over the Forest Service's proposed approach. People can claim that laws Congress has previously passed will require some of these projects to be held up by more environmental analysis or administrative appeals.

Our bill eliminates this uncertainty. When the Forest Service works in the immediate vicinity of a community, the bill would make absolutely clear that there need to be no environmental analysis or administrative appeals. The only exception is where there might be extraordinary circumstances, such as a major threat to endangered species. We also prohibit the Forest Service from conducting clearcuts around communities, requiring them to focus on clearing out the brush.

By way of comparison, the House-passed bill does not provide any assistance to thinning projects in the immediate vicinity of communities, even though everyone agrees on the need for these projects.

Senator Wyden and I have also sped up the process for projects outside the immediate vicinity of communities. These projects are more controversial, so we want to make sure that the public has some opportunity for input.

In the past, the Forest Service and the Department of the Interior have been able to conduct the majority of brush-clearing mechanical treatment following a National Environmental Policy Act process known as environmental assessments. Our bill simplified these environmental assessments in several ways.

The bill provides one round of public comment--the administrative appeal process--rather than two.

The bill shortens the time frame for administrative appeals from 90 to 60 days.

Finally, the appeal deciding offer can make necessary changes rather than having to send the project back to the original decisionmaker for further time-consuming review.

Together, these changes will likely speed up the process by a few months or more. We do all this without eliminating public comment or gutting core parts of the environmental analysis.

In contrast, the House-passed bill would eliminate the requirement that the Forest Service consider alternatives to the proposed project as part of its environmental analysis. In other

words, the Forest Service doesn't have to study other, less damaging ways of undertaking the project--it can just do the project the way it wants.

Many people think that public debate over alternatives is the core of the National Environmental Policy Act. Our bill does not eliminate this important environmental protection.

Another important part of our bill is its protection of magnificent old growth stands. The remaining groves of these trees provide a connection to nature untrammeled by human activity, a connection that many of us cherish.

Our bill would require full protection of these old growth stands. In addition, outside old growth stands, the bill focuses on small-diameter trees and protects large trees that promote fire-resistant stands and species diversity.

By way of contrast, H.R. 1904 provides no protection for these magnificent resources.

Let me now talk about judicial review. No one wants court cases to go on too long. In addition, people should not be able to tie up projects by gaming the system and picking and choosing the friendliest courts to hear their lawsuits.

Our bill addresses these problems. The bill encourages courts, to the maximum extent practicable, to resolve lawsuits over brush-clearing projects quickly. These are important projects for the safety of our communities and our forests, and it is appropriate to give them some priority.

In addition, we require that potential litigants file suit in the same judicial district where a fuels reduction project takes place, No one can game the system by looking for a friendly judge somewhere else.

Finally, we limit temporary injunctions that are typically issued at the outset of a case to 60 days. They can be renewed if necessary--but the challengers to a projects must submit updates explaining why the injunctions should be extended. This provision prevents projects from being held up any longer than is strictly necessary.

These changes will expedite the process--but they still respect our court system's essential autonomy. As a member of the Judiciary Committee, I spend much of my time trying to make sure our court system is as fair as possible.

Americans count on a judiciary independent of the executive branch to preserve their liberties and to right any wrongs that their government commits. I think it is very important that we do not interfere with the independence of our judiciary.

The House-passed bill would require the courts to give weight to certain findings by the Forest Service and the Department of the Interior. Even if projects had been found to violate the environmental laws, courts would be told to give weight to the agencies' findings and allow many of the projects to go ahead anyway.

This is a dangerous provision for a bill to include, and I cannot support it. I believe our bill includes more sensible provisions on judicial review that will help projects go forward quickly without compromising the independence of our judiciary.

Our bill includes several provisions to address forest health problems on private and State lands.

We authorize $50 million annually in emergency grants to States and localities where lives are at risk. The last few years have seen vast insect epidemics killing millions of trees in Southern California, Arizona, and elsewhere.

In places like Lake Arrowhead, Big Bear and Idyllwild in Southern California, communities are surrounded by dead and dying trees that are perfect kindling for a catastrophic fire. There is a real threat to people's lives that we must address.

There is now no good funding source for clearing evacuation routes and clearing around schools and other emergency shelters that are on State and private lands. The emergency grants in the bill would authorize funds for these essential purposes.

The bill also includes two measures to encourage homeowners to clear brush around their houses and install non-flammable roofs. A study of Southern California fires by Forest Service researcher Jack Cohen has shown that these measures could reduce a blaze's threat to homes by as much as 85 to 95 percent.

Our bill would encourage these home-saving practices in two ways:

The bill would prioritize grants to those communities that encourage brush-clearing and use of non-flammable roofs or develop comprehensive fire plans.

The bill would record the Sense of Congress that insurers should offer lower premiums to homeowners who take steps to protect their homes.

Our bill would also include grants to encourage the use of woody material, or biomass, for energy production. Biomass-to-energy plants serve multiple beneficial purposes: one, they are a clean and renewable source of energy; and two, they make brush-clearing projects more cost- effective, so we can protect more with the finite Federal dollars available.

Finally, our bill would also include contracting provisions to benefit rural communities. The Forest Service and the Department of the Interior would be required to use ``best value contracting'' for brush- clearing projects under the Act.

This contracting approach requires the agencies to consider other factors besides the price of the bid in awarding contractors. Bidders would be rewarded for such factors as their commitment to hire local workers, and their past record of environmental stewardship.

I would like to close by saying that this is truly a bipartisan issue. All of us, Democrat and Republican, have an interest in clearing out dangerous accumulations of brush in our national forests. All of us have an interest as well in protecting the magnificent old growth stands and species habitat that Americans cherish, and in upholding our environmental laws.

I look forward to working with my colleagues on both sides of the aisle to pass a bill as soon as possible.

Madam President, I will talk about the bill pending and share some thoughts and concerns I have about the bill.

This is not a matter of light substance that is before the Senate. This is not a bill that we can take a wink and a nod and let it go because everyone agrees this is a unanimous consent bill. It is true that it did come out of our committee, the Agriculture Committee, on a voice vote. We reached agreements to go ahead and get it to the floor.

There are a lot of things in the bill I can agree with, that I think are good and necessary; there are some other things about which I have concerns and a lot of Senators have concerns. This is a bill that is open for amendment. There will be a number of amendments offered to this bill to try to strengthen it and to answer some concerns people have.

I am somewhat amazed when we come out with legislation and it deals with sensitive environmental issues and we are told certain environmental groups have concerns and we will hear about the environmental issues so that somehow, if you are a member of an environmental organization, you are opposed to progress, you are opposed to jobs, you are opposed to doing things that might make life better for some people in certain areas. It is almost as if ``environmentalist'' is a bad word. I don't think it is. I think being pro-environment and being an environmentalist is a positive attribute.

I compliment those in our country, many of whom work for nonprofit organizations. I have a number of letters from them that I will have printed in the Record. They toil endlessly, tirelessly, sometimes for no pay, sometimes for little pay, to ensure that future generations of Americans have a good, healthy environment, that those who like to hunt have areas in which we can hunt, where we have healthy wildlife areas.

I am proud of the fact that in our last farm bill we had the biggest increase ever in conservation, an 80 percent increase. To me, this is not only pro-environment; it is pro-economy; it is pro-jobs; it is pro- growth but growth in a way that is sustainable, not just for our time and our place but for future generations.

That is why the Healthy Forests Restoration Act of 2003 is not something that can be lightly passed through. We have to look at it and talk about it. I compliment those who have worked hard to reach agreements and tried to reach compromises on this legislation. That is all well and good. I compliment Members on both sides of the aisle. They have worked very hard to get to a point where we have a bill that has broad support. I don't deny the bill has broad support. That does not mean those who have some concerns about certain aspects of the bill could be stopped from talking about it and offering amendments. That is what the legislative process is all about.

We will proceed in that regard deliberately, not in a way to stop anything. This is not a method of slowing down the bill or taking an undue amount of time, but it is ensuring that we do look at the bill carefully; that the public is generally aware of what is in the bill; that those who perhaps do not spend a lot of time looking at these things--and I am the first to admit this is not an area of my expertise, but as the ranking member of the Agriculture Committee, charged with the responsibility of legislation that impinges upon our national forests that comes under our jurisdiction, I make sure I have good staff who understand the impact of forest legislation. And I have taken the time to study it myself to the extent I have had the time to do so.

I do not pretend to know all the ins and outs of forest legislation as much as my friend from Oregon, for example, who has spent his adult life working on this, or the Senator from Idaho and others who I know have put a great deal of time in this. But that does not lessen my concern about certain aspects of the bill and its impact on our environment. So we will have a discussion and we will have amendments.

Preventing damage and injury to communities is of paramount concern to all of us, especially now with the tragic wildfires in California that show clearly the dangers these communities face. Of course, our hearts and our thoughts go out to all those families in those communities that are affected by these wildfires.

Now, again I point out that this bill passed by a voice vote to allow us more

time in order to reach a consensus on this agreement, and that is the substitute amendment offered by Chairman Cochran. The vote out of the committee was not--and I wish to state this very clearly--any kind of unanimous endorsement of the bill as a whole. It was merely our agreement to move the process forward.

The legislation before us purports to focus the Federal Government's efforts to reduce the dangers of wildfire and improve forest health. Now, of course, all of us want to achieve this goal so that our communities out west can be better protected from catastrophic wildfires, so that forest areas around the country can better cope with the onset of disease and insect infestation, and so that we can improve the overall health of our national forests and public lands.

I am heartened that several Senators from both sides of the aisle have endorsed a legislative compromise to title I of the bill. This, of course, is the title that has drawn the most focus because it covers hazardous fuel reductions on Federal lands, and, as such, it is also the most controversial portion of the legislation. I believe it is a step in the right direction. I believe it comes up a little short, and that is why we will have some amendments in that area.

Again, I will say that much of the bill is worthy of support. In addition to title I, there are seven other titles, ranging from watershed forestry assistance to rural community forest enterprise programs, with others, and again the bulk of these provisions are non-- I will not say not debatable, but they raise no really contentious issues. But I would like to take this time to talk a little more about title I.

Simply put, I still continue to have some serious concerns about this section. For one, the bill lacks sufficient targeting to conduct hazardous fuel work in the areas that need it the most, which likely might waste limited Government dollars. The Forest Service's own research has concluded that the areas immediately surrounding homes and structures are where the fuel cleanup should be done, as it is the most effective and cost-efficient method for reducing fire risk.

The language in the bill requires that only 50 percent of the hazardous fuel dollars be spent in what is known as the wildland/urban interface. Again, because of the bill's loose definition of the interface or of the community protection zone, land miles away from homes and other structures could qualify. Ensuring that a higher percentage of this work would be done in the areas at risk to human life and property would vastly enhance our community protection efforts.

Again, there is no definition of the size of a community. So one has to ask: Just what kind of communities are we talking about? Well, I happen to come from a town of 150 people. I live there. To me, that is a community. Two or three houses out someplace, to me, is not.

As I was saying to my friend from Oregon earlier, if someone wants to build a house out in an area that is on the ocean, that is subject to hurricanes and tidal waves and weather such as that, they take their own risk. If they want to do that, they are at risk. If they want to go where the floods happen and a hurricane comes up and wipes a house away, well, it is not primarily the Federal Government's responsibility, it is not primarily the taxpayers' responsibility to go out and build seawalls to protect that house. If someone wants to build a house in an area where there are mud slides all the time, it is not our responsibility to come in and build up structures to protect that house from a mud slide. If they want to build it on the side of a cliff, God love them. If they can get the insurance for it, fine, but it should not be the taxpayers' responsibility.

So if someone wants to build a house out in a wilderness area, fine, I have no problem with that. They can do that. But I do not know that we then have the responsibility as taxpayers to come in and say we are going to spend millions of dollars to protect your house from a wildfire. Now, where that cutoff is, I do not know. I am not here to say the cutoff is 150 people or 200, but there has to be some better definition of structure for communities.

The way the bill is right now, we could spend a lot of money going out and cleaning out the brush. And, by the way, I will have something to say about that. We are not talking about brush. We are talking about trees. It could be miles, tens of hundreds of miles, away from any community. So again I question whether that is where we want to put our resources.

I understand there may be an amendment, or there will be an amendment offered to raise that 50 percent threshold to something more akin to 70 or 75 percent, which I think is maybe more where we ought to focus our resources, with the very few dollars that we have.

Secondly, the bill could also be interpreted to allow logging on virtually all Federal lands other than wilderness or wilderness study areas. This means national monuments and other areas could be logged in the name of wildfire prevention. The old growth language contains numerous exceptions so large that even ancient trees, trees that were around before our country was a country, could be logged.

The President traveled around the West this summer arguing that we need to remove small trees and brush from damaged forests. The scientific community agrees with him. But these same scientists tell us that cutting bigger and older trees can actually make fire risks worse. Logging, after all, is a part of what created the fire conditions that this bill is supposed to address.

Now, you might say: Well, how can that be? If you cut down trees, how can you have forest fires? Well, by logging, by taking out certain trees, you leave a lot of brush, you leave a lot of stuff on the ground; plus, you take out some of the overhang of the ancient trees that tend to keep the risk of brushfires down; plus the fact, when you do logging, of course, you put in roads. Whenever you have a road, then you have people coming in. When you have people coming in, they are building campfires and doing things such as that, and that also increases the risk of fire.

Another problem I have with this legislation is the lack of protection for roadless areas, those areas of our national forests that have wisely been left free from most logging and roadbuilding to ensure their protection. In fact, this bill does not restrict roadbuilding at all--at all. So you could have permanent roads built anywhere under this bill.

If we did restrict some of this roadbuilding, we would have less fire risk, and greater ecosystem benefits. This is because the forests in these undeveloped areas have experienced less damage by past management practices. They are much less in need of remedial work themselves. And they tend to be the furthest away from homes and communities. Moreover, scientists tell us that fires are more common and larger in developed forests. As I said earlier, roads bring people. People bring accidents that start fires.

While I am a strong believer in access to public lands, it depends on what kind of access we are talking about. We have to realize building roads to reduce fire risks can be very self-defeating. So I am concerned about a lack of protection from the building of roads in currently roadless areas.

Some people say this is a contentious issue. It is an important issue. It is one that concerns a number of environmentalists and other people around the country, especially those who have tried to protect our natural forests that have been left free from logging.

The bill also limits the reach of what may have been called the heart of NEPA, the National Environmental Policy Act. I know there are some who would like to get rid of NEPA completely, just get it off the books. There are some who would like to see that happen. But NEPA is the heart of our environmental policy. Simply put, it requires the Federal Government to look at a reasonable range of alternatives to any proposed course of action. Yet the language in this bill arbitrarily restricts a full and robust environmental analysis to only the agency's preferred alternative, a no-action alternative--which is really not an alternative because a no-action alternative means you don't do anything--and possibly one additional alternative.

It boils down to the fact that NEPA would be required to look at two alternatives, not a reasonable range of alternatives but two. The one alternative doesn't even have to be environmentally preferable. It could be a proposal for more and heavier logging of

big trees. Again, this effectively undermines what has been called the heart of NEPA; that is, to look at a reasonable range of alternatives to a proposed agency course of action.

What this bill basically could leave us with is one alternative. That is not what NEPA was intended to do. It calls for a reasonable range of alternatives. This effectively undermines a landmark law of immense value--a landmark law that has been in existence for about 30 years.

We will hear from some who say that the NEPA analysis takes time; it costs money. What we won't hear is how important this time and money is for realizing better outcomes.

NEPA analysis is designed to ensure that more effective or more efficient approaches are considered before an agency reaches a final decision on how to proceed with a project. Too little attention has been paid to date to the fact that thinning may or may not be effective in reducing fire risk. The scientists tell us that it needs to be designed carefully and in light of many site-specific factors, if it is likely to succeed.

There is the general perception that if we just go out and clear out all that underbrush and take out trees, certain trees, it is going to protect us from forest fires. That may or may not be true, depending upon the site and the specificity of what they are doing. That is exactly why we need good, solid NEPA--National Environmental Policy Act--analysis for this work, particularly the larger the projects and trees involved and the more sensitive the places. Otherwise, if we don't consider alternatives, we will be wasting time and taxpayers' money that we can't spare on projects that don't help and may even hurt in terms of protecting against wildfire.

We ought to look more closely at the Forest Service and Bureau of Land Management inefficiencies in carrying out their NEPA obligations rather than attacking what has been referred to as the Magna Carta of environmental law. Routine forest health projects can confidently proceed without lengthy environmental review, as long as they stick to small trees and brush, developed forests, and no new roads. Once you get into that, that is when we need the environmental review.

I also want to make clear from the beginning that you will hear a lot of talk about small trees and brush. It is my understanding that these small trees can go up to 12 inches or greater in diameter and that these are the trees that loggers want now. These seem to be what is in demand. I am not a contractor. I don't build houses and stuff like that. But I am to understand that these are the ones most in demand right now, trees up to 12 inches and greater in diameter. That is a pretty good size tree. That is not brush. But that is what we are talking about here, going out and clearing those trees. That is why we need a good, healthy NEPA analysis of what we are talking about, what the alternatives could be.

The bill before us also exempts hazardous fuel projects from the normal administrative appeals process for what we are told will be something similar to the BLM's appeals process. This predecisional process, it is argued, will help expedite projects toward their completion by making projects more collaborative and less confrontational.

But this new, undefined process threatens to cut out or unfairly limit citizen participation in agency decisions. The bill currently does not have meaningful standards for the new process to ensure that all the talk we hear about preserving public participation is fulfilled.

Let me repeat that. The bill before us does not have meaningful standards to ensure that we preserve public participation to the fullest. This is not good public policy. These national forests belong to us all. They belong to you and they belong to me. They belong to you and they belong to our kids and our grandkids and future generations. The public ought to be participating and should be heard and should have meaningful participation in agency decisions regarding forest policy. The bill should spell out the Forest Service appeals process. It does not do that. So we don't really know how the public is going to be involved. The language may provide too much discretion and too little accountability to the public. This needs to be cleared up.

Let me say a few words about the judicial review provisions of the legislation. I do not believe they represent a major response to the situation. Among other things, the bill limits preliminary injunctions to 60 days. You do have the right to renew, but it limits it to 60 days and stipulates that courts balance the short- and long-term effects of undertaking and not undertaking a hazardous fuels reduction project.

The limit on injunctions will make additional work for judges that could actually slow them down in reaching a final decision. The balance-of-harms language in the bill is unnecessary and intrusive, as courts have always done this. Moreover, the presence in this bill of that language could be read as implying direction to change the current process in some way. This could tilt the scales to one side or another regardless of the facts in a particular case.

Again, let me point out something else we hear about: the flood of lawsuits. There is no flood of lawsuits clogging up the courts and preventing us from moving ahead in hazardous rules reduction projects. The GAO study of hazardous fuel reduction projects found that only 3 percent of all fuels cases were litigated in 2000 and 2001, covering only 100,000 acres.

I will repeat that. Our GAO--our investigator--found only 3 percent of the hazardous fuels cases were litigated in 2000 and 2001, and plaintiffs were often not environmental groups but local communities, outdoor enthusiasts, and timber interests. Of the 762 cases, only 4 were delayed by court order during the litigation. Again, out of 762 cases, only 4 were delayed by court order during the litigation, and that is about five-tenths of a percent of all the cases.

Yet we are told we have to do something here to clean up the plugging up of our courts by all these environmentalists, that litigate and come to court to stop the agency from proceeding. Nonsense.

With regard to appeals of agency decisions, the argument that there is some sort of crisis holding up these projects simply doesn't hold water. The Forest Service and the Bureau of Land Management's own database lists about 3,500 fuels reduction projects they conducted between 1998 and 2002. About 250 were appealed. Out of 3,500 projects, 250 were appealed. This is about 7 percent. There is a 7-percent appeals rate for all of their fuels reduction projects nationwide. In other words, by the agencies' own count, 93 percent of their projects went through with no appeal whatsoever. Yet we are told there is some sort of ``appeal crisis.'' Well, the facts just don't support that.

The GAO and similar studies have found the main reasons that projects could not proceed were weather related and the diversion of funds to fight wildfires. Now we are getting to the crux of it. Roughly a third of the delays were due to a shift in money from preventative projects to firefighting, which last year cost more than $1 billion. That is why we need more resources out there--not to shift the resources we have now but to have more resources out there for preventative projects.

Again, the main reason the projects could not proceed, according to the GAO, is weather related and the diversion of funds for wildfires. Other reasons include public resistance, regulatory demands, unpredictable funding, and inadequate staffing within the agencies.

Yet the administration and some of my colleagues would have us believe the agencies cannot get the work done due to appeals and litigation by environmentalists and environmental organizations. This simply is not true.

Well, are there some problems getting the work done? Yes, there are. Does this bill have provisions, including new programs, that are worthwhile? Yes, I have already stated that to be the case. There are a lot of good aspects to this bill. Is this bill the best way to protect our at-risk communities and the environment from wildfire, disease, and pest infestation? Well, I don't think so. I think there could be some changes made to this bill that would make it even better.

What is even more troubling about the legislation is that it comes on the heels of some very harmful actions recently taken by the administration and

the Forest Service to weaken environmental protections, weaken public participation or public scrutiny of agency action--the cumulative effect of which could be to seriously degrade the health of our national forests and public lands that the bill's proponents seek to protect.

The Administration, through regulation, has ``categorically excluded timber'' sales up to 1,000 acres from NEPA analysis as long as trees are cut in the name of fire prevention. So you can go in--a thousand acres would be pretty substantial in some areas. You can go in and cut down 12-inch or greater diameter trees in the name of fire prevention. No NEPA analysis is needed. They are shelving administrative appeals for these projects under NEPA; they are curtailing environmental analysis for entire forest management plans and ending public appeals of the plans. Proponents of this bill are even cutting out endangered or threatened species consultation with the U.S. Fish and Wildlife Service and National Marine Fisheries Service, and preparing to jettison protections for roadless areas.

In other words, the administration has taken a largely one-sided view of Federal forest management. That is, thin or cut first and minimize environmental protections and public input through the regulatory and legislative process.

The upshot is that, combined with this bill as it now stands, we could see widespread, heavy logging of mature trees, even in pristine roadless areas, without the benefit of public environmental review, pursuant to overarching plans that also lack NEPA compliance, bereft of interagency consultation or meaningful public appeals, and subject only to modified judicial review. In this scenario, there could be a major increase in Federal timber sales with little public understanding or input and even less agency accountability. I believe this is bad governing, bad policy, pure and simple.

Now, while I recognize the legislation probably has the votes to pass, I believe we can and should do better. There will be amendments to attempt to do this. We have seen several alternative bills offered in the past several months. We should better target funds to have work done in this wildland/urban interface, as it is called, or the community protection zones. We should vastly increase funding for hazardous fuels work on Federal and non-Federal lands. That is the crux of it. We should have more comprehensive protection of old-growth and large fire-resistance trees. We should avoid unnecessary and largely unprecedented attacks to our independent judiciary. And we must maintain full and vigorous public participation in the care of our national forests and public lands, while expediting projects to reduce wildfire risks to at-risk communities.

As I have said before, these public lands and these national forests belong to us all, not to a timber company, not to someone who builds a beautiful home out in the middle of a wilderness area and wants us to spend taxpayer dollars to protect them from a wildfire. These national forests belong to all of us, and public participation and agency decisions dealing with public lands and public forests ought to be in the forefront, not in the background.

Otherwise, if we move ahead in this manner, we are inviting the waste of limited time and resources that it is our responsibility to ensure are directed at stated priorities of community protection and removal of small trees and brush. As drafted, I am concerned that this bill will not accomplish that urgent goal, will not ensure adequate public participation, and will not help to end the controversy and gridlock that has plagued this issue for some years.

I hope we will have a reasonable debate on this bill. Certainly, there will be amendments to it; I don't know how many and who will offer them. Some have come to me saying they had amendments to offer. I think they will take some time to dispense with, which is appropriate given the significance of the policy changes proposed in H.R. 1904. We must carefully scrutinize what is in the bill and see if there are ways to improve it.

I ask my colleagues on both sides to wait and see how these amendments proceed before judging the ultimate merit of this legislation.

Madam President, in closing, I wish to have printed in the Record some material. First is an editorial that appeared this morning in the Washington Post called ``Fire Damage.'' I ask unanimous consent that the editorial be printed in the Record.

Madam President, the editorial basically states that what is happening in California is a genuine national tragedy and one that shouldn't be misused for political purposes. But, unfortunately, that is a distinct possibility, the editorial says. It says the fires happened to arrive just as the Senate is wrestling with a bill supposedly designed to help prevent catastrophic fires.

The editorial goes on to question whether or not the bill before us really does accomplish that goal.

Also, I have a series of letters from different environmental groups. When I say ``environmental groups,'' I do not use it in a pejorative sense. I use it in a very supportive sense. First is a letter from about 200 different environmental groups alphabetically from the Alaska Wilderness League to the Yosemite Area Audubon, California--from A to Z--that basically are opposed to this version of the bill.

I ask unanimous consent that letter be printed in the Record.

Madam President, I have a letter from the Forest Stewards Guild urging a vote against the Senate version of the bill, H.R. 1904. I ask unanimous consent this letter be printed in the Record.

Madam President, I have a letter from the League of Conservation Voters urging opposition to H.R. 1904. I ask unanimous consent that this letter be printed in the Record.

Madam President, I have another letter from the American Sportfishing Association, the American Fisheries Society, the Izaak Walton League of America, Orion: The Hunter's Institute, Trout Unlimited, Wildlife Forever, and the Wildlife Society. The letter is dated July 16, 2003. I will be clear to point out they did not say they were opposed to the bill, but they have serious concerns about some areas of the bill. I ask unanimous consent this letter be printed in the Record.

Madam President, I have another letter from a number of individuals who basically represent firefighters, smokejumpers--12 individuals who have written urging opposition to H.R. 1904 which they say is misnamed the Healthy Forests Restoration Act and instead support S. 1453, the Forestry and Community Assistance Act. I ask unanimous consent this letter be printed in the Record.

Lastly, the Forest Roads Working Group, which includes Wildlife Forever, Trout Unlimited, Wildlife Management Institute, Izaak Walton League of America, Outdoor Industry Association, the Wildlife Society, and International Paper, also wrote a letter dated October 28, 2003. It is not in total opposition, but it expresses their concerns about certain parts of the bill saying the ``fire legislation should endorse the prohibition of new roads into inventoried roadless areas.'' I ask unanimous consent that their letter be printed in the Record.

Madam President, these are the concerns that I and many others have with the legislation before us, and I hope those who have amendments will come to the floor and offer them. I yield the floor.

Mr. President, I thank the Senator from Idaho for his comments and for his support. I have worked with him on this issue now for a long, long time.

As you know, California has great and challenging forests. As I delved into the issue and became more and more involved and traveled over forests on helicopters and walked through forests, I realized how much they had changed from the time I was a child in California.

I also thank the bipartisan group of Senators who have tirelessly negotiated this legislation, particularly the Senator from Oregon, Ron Wyden. He and I, on our side, have worked with a group of Republicans, knowing that both of us face States that are deeply challenged by forest fire. The need to develop a piece of legislation was crystal clear to both of us.

This is very difficult, I think, for both of us because the prevailing environmental view has always been not to touch our forests, and that is what fire suppression was all about. Senator Wyden has been stalwart. It has been a great pleasure for me to work with him and his staff. I know my staff has also very much appreciated the collegiality and also the exchange of ideas. I thank him very much.

Also, Senators Baucus, Craig, Crapo, Cochran, Domenici, Kyl, Lincoln, and McCain--we were all partners in forging this compromise consensus bill.

With what is happening in California, I don't think I need to tell anybody that there has been an alarming increase in catastrophic wildfires that have raged through our forests and neighboring communities all across this great land, because nearly 27 million acres have burned nationally in the past 5 years alone, and 2.1 million of those acres are in California. There are 57 million acres of Federal land at the highest risk of catastrophic fire, including 8.5 million in my State alone.

People in California don't realize that much of our forest is in what is called the highest risk of catastrophic fire--for many, many different reasons. But that is where they are today. This is far from the natural condition of our forests. It is because this century-old policy of suppressing ground fires has allowed so much flammable brush to accumulate so dangerously in many of our forests, especially in dry areas at low to moderate elevations.

This legislation is not a logging bill, as some would typify it--I think falsely. This legislation would allow the brush to be cleaned out and it would also provide the first statutory protection for old-growth stands and large trees ever in the history of this Nation. I have heard people fault it, saying it is not this and it is not that--but it is, and no one has submitted legislation prior to our doing so in this particular area.

I want to be very clear. This is pro-environment legislation and it seeks to reverse some of the damage we have done to our forests and restore their healthy condition.

Pictures show the story, I think more powerfully than words. Like the old adage, a photo is worth a thousand words. That is really true. Let me show you this first picture. This picture goes back to 1909, and it reminds me a little bit of the conditions of the Sierras when I used to ride through them as a child. You didn't have to go on trails; you used to ride through the forest.

This is a picture of Grandview Point at Grand Canyon National Park in Arizona in 1909. You see the buggy and horses, and you see the open nature of the forest. You don't see much ground fuel. You don't see brush.

Let me show you the next photo. It shows the forest closing in, due to fire suppression. From 1909, in the top picture, you will see it open. This is all the same identical forest. You will see the openness all throughout this forest as far back as you can see. Then you will see the next one, 1942. Look at these little juniors, look at them popping up all over the forest. Then you will see in the last picture in 1992, following a fire.

This is the problem increasingly with these forests. This picture is from the Pearson Natural Area in the Coconino National Forest in Arizona.

Now, look at another picture. This is the crowded, unthinned area, Ponderosa Pine in California. You will see one of these problems. This picture is not following a forest fire. This is the natural condition of this forest. It is just awaiting a catastrophic fire.

Now, let me show you where fire suppression doesn't just exist in pines. I would like to show you a photo of some of California's most magnificent trees. This is the Mariposa Grove of giant sequoias in the southern Sierra Mountains. It is interesting to look at it. This is a man right here. This will show you how big those giant sequoias are. This was taken in 1890. Look at the clear space around those sequoias.

Now go to 1970. This is the same tree and look at what has happened. This is a catastrophic fire waiting to happen.

What will happen if there were fire back here, let's say, involving these two trees? It would not necessarily be catastrophic, because it would not burn hot enough on the fuel to take out the canopy. The sequoias are basically fire resistant and it would resist it. Fires today run the risk--because of the underbrush, because of the nonnative species, and because of the fuel ladder--of really taking out the canopy of old majestic and great trees.

We had a fire in the Sequoias, and we were just lucky that where the fire took place, it didn't reach these trees.

I would like to show you a picture of a fire in a Ponderosa pine forest that has been altered by decades of fire suppression. Look how this fire is burning. It is not confined to the ground. It is rising up into the trees and doing substantial damage.

Look at this photo of fire in a stand where the brush and smaller trees have been cleared out. Note that the fire,

unlike this fire, is confined to the ground.

That is what we are trying to achieve in this bill so that when a fire does occur it is confined to the ground and does not do damage to old-growth trees, to other trees in the area, and to property and life.

Finally, this is a picture showing how thinning can protect the forests. This is the 2000 Clear Creek Fire in the State of Idaho. The upper area in the photo was unmanaged, and it burned severely. You can see that right through here where the fire burned. Now you can see where the fire stopped. The lower area survived the fire and remained green and healthy because of one reason: It had been thinned.

This is elegant testimony to what happens when it isn't managed. Where fuel is not removed, it burns fiercely. It stops where it is managed and there are fuel breaks, and the forest is cleared of fuel.

I want to emphasize that not all of our forests have been affected by fire suppression. Many of our forests--particularly those in the wetter areas and higher mountain elevations--have changed little, if at all, from fire suppression. Fires in these forests occur only rarely. In some cases, hundreds of years can pass between fires. But fire suppression has changed these forests little.

We can largely leave them alone under the legislation. The only exception is forest areas near communities where we want to reduce the hazardous fuel to ensure public safety.

This is how our amendment would work. The bipartisan amendment directly addresses these threats to our forest health and our communities.

We established an expedited hazardous fuels reduction program for 20 million acres at the highest risk of catastrophic fire.

Some opponents of this bill are saying everything is up for this project--wrong.

This project is confined to 20 million acres of the highest risk of catastrophic fire among the 54 million acres which the Forest Service has identified at highest risk of catastrophic fire.

It would authorize $760 million annually for the removal of fuel. That is a $340 million increase over current funding.

The House bill has no money for title I to do this in that bill. It leaves 50 percent of the funds to be used for fuel reduction near communities.

This is a compromise that Senator Wyden and I made to be able to provide incentives for others who may not have as many populated areas as some of us do to also have an opportunity to have fires thinned near urban watersheds, municipal watersheds, areas of infestation, and other critical areas that are in need of thinning to prevent catastrophic fire. And the remainder of funding is for municipal watersheds or endangered species habitat or areas that have suffered just as I have said.

The legislation also requires that large fire-resistant old-growth trees be protected from logging immediately. Most people do not know that. But there is immediate protection for large fire-resistant old- growth trees. It mandates that forest plans that are more than 10 years old and most in need of updating must be updated with old growth protection consistent with the national standard within 2 to 3 years. Within that 20 million acres there is a real effort to say that old forest plans must be brought to the fore and dealt with quickly within 2 or 3 years.

While forest-specific old growth is being developed, large and fire- resilient trees would be immediately protected in the new project authorized by this legislation.

The bill prevents logging of the largest most fire-resistant trees in the guise of fuel reduction. Where old-growth forests have not been altered by fire suppression, existing old-growth conditions must be maintained. And in other old-growth stands where brush and other highly flammable fuels have accumulated through this century-old policy of suppressing ground fires, brush will be cleared out to protect the stands from catastrophic fire.

And local forest managers will write specific prescriptions for their forests. All of these prescriptions will be consistent with the more general national old-growth protection standards in the bill.

Additionally, the agreement improves and shortens the administrative review process.

I want to talk about this. There has been a lot of things said. A lot of things were just plain wrong. We have been trying to correct them wherever we can. Where we tried to shorten the process, we tried to make it more collaborative and less confrontational.

It is critical that the Forest Service be able to spend scarce dollars as it is doing vital work on the ground rather than being mired in endless paperwork.

The legislation we have submitted fully preserves multiple opportunities for meaningful public involvement. People can attend a public meeting on every single project. They can submit comments during both the preparation of the environmental impact statement and during the administrative review process. I guarantee that the public will have a meaningful say in these projects.

The legislation changes the environmental review process in this way. It does this so that the Forest Service still considers the effect of the proposed project. But it does it in a way so that the Forest Service can focus its analysis on the project proposal.

One reasonable alternative is required--I want to explain this--that meets the project goals and the alternative of not doing the project, instead of the five to nine alternatives now required.

We are not talking about a freeway or a highway being located where you might want to look at five to nine different alternatives. We are talking about one specific project that has been designated for hazardous fuels reduction and how you carry out that hazardous fuel reduction.

There might be debate on whether it should be mechanical thinning, or burning, or a combination of the two. There might be a debate on exactly which trees people want to remain inviolate. All of that is possible. But the requirement, in addition to the alternative of doing nothing, is reduce one alternative--one sound alternative--that can be considered.

This legislation replaces the current Forest Service administrative appeal with an administration review process that will occur after the Forest Service finishes its environmental review of the project but before it reaches its decision.

This new approach is similar to the process adopted by the Clinton administration in 2000 for review of forest lands and amendments to those plans. The process will be speedier and less confrontational than the current administrative appeal process and have more information available to those who want to know more about the project.

Perhaps the most controversial area is the area of judicial review. I will turn to that. I emphasize that cases will be heard more quickly under the legislation, abuses of the process will be checked, but nothing alters the citizen's opportunity for a fair and thorough court review. Parties can sue in Federal court only on issues raised in the environmental review process. We believe this is a commonsense provision that allows agencies the opportunity to correct their own mistakes before everything gets litigated. Lawsuits must be filed in the same jurisdiction as the proposed project. This was in-house language. This has been supported. It is a good idea. We go to the Federal court in the area where the hazardous fuels project is proposed, not to a Federal court in New York City or somewhere else.

Courts are encouraged to resolve the case as soon as possible. This is not mandatory language, it is suggested language. It means that any judge reading the bill will understand how seriously we take this. We urge them to conclude their deliberations expeditiously.

A preliminary injunction would be limited to 60 days, not going on and on and on. An individual who gets a preliminary injunction can come back before the court and make an argument as to why the injunction should be continued, and the judge has the ability and the prerogative to continue that injunction if he or she sees fit.

This provision, we believe, sends a signal to the courts not to delay important brush-clearing projects indefinitely unless there is a good reason to do so.

Then there is what is called balance-of-harm language in the bill that says the court must weigh the environmental benefit of doing a given project against its environmental risk as it reviews the case.

I deeply believe this amendment is balanced, that it is a significant improvement from the House-passed bill. I cannot support the House- passed bill. Senator Wyden cannot support the House-passed bill. The Democrats who are on this bill cannot support and will not support the House-passed bill. Ergo, in this Chamber, the House-passed bill will not have the 60 votes required to move it along.

There are many ways in which this amendment improves on the House- passed bill. I know Senator Wyden went into that in great detail. I will mention three of them.

First, this bill is focused on the highest priority language where we need to undertake brush-clearing projects to restore forest health. As I said, it is limited to 20 million of the 54 million acres at highest risk of catastrophic fire. These lands include the wildland/urban interface as defined by the communities needing protection, lands where fires would significantly threaten municipal water supply, lands significantly harmed by insect, disease, or wind throw and endangered species habitat.

Second, we have protected both old-growth stands and large trees across the landscape. The projects expedited by this act, I believe, will truly restore forest health.

Finally, the Senate agreement removed a provision of the House-passed bill that could have threatened the fair and impartial judicial review of Forest Service actions. This provision would have tilted the playing field in forestry litigation by requiring a court to defer to the Federal agency's views in deciding whether to issue an injunction.

So for these three reasons alone, I believe our bipartisan amendment to title I significantly improves the bill which I otherwise could not support.

Now, many people have said this bill would not do anything in California. That is just not right. I will speak to that for a minute because we have terrible fires burning, 10 huge fires, 3 huge major fires: Every day, burning homes; every day, the victim of excess vegetation and hazardous fuel that has built up over many years and has not been removed.

The fires in southern California are burning in two basic vegetation types: chaparral and the pine forests in the San Bernardino Mountains. The exclusion to that is the fire burning up north, east of Redding. In both of these vegetation types, treatments of fuels will reduce the risk.

The first area where the southern California fires are burning is the pine forests of the San Bernardino Mountains. I want you to take a look at these forests and look at the homes in the middle of this forest: House, house, house, house, house, house, house, house, house, house, house, house, house.

Do you notice the yellow forest? That is all dead and dying and infested bark beetle forest. There are 44,000 homes located in the Big Bear/Arrowhead area where this fire is now on two sides, moving. Look at these homes. Look at the dead and dying trees. Does anyone believe they have a chance of surviving if this forest is not cleaned?

We have tried in appropriations bills to get more money--and we have been able to get some money in this year and last year for more removal of bark beetle-infected forests--but clearly this is an exact area of urban interface that is in catastrophic, highest risk of fire. No one could tell me that if a hazardous fuels mitigation project had been carried out around this area, these homes and tens of thousands like them would not have been saved in this fire.

Everyone, look at this. That is what this bill means. If you are going to vote against this bill, just know that. This is correct and elegant testimony. About 474,000 acres in this forest. The San Bernardino/San Jacinto, often both private and public lands, were experiencing severe tree loss ranging from 10 percent of all the trees in a given area to 100 percent. That has been known for quite some time. It has had years of drought. It has bark beetles. It has root disease. It has dwarf mistletoe. They have all reached epidemic proportions. The cost assessment by the County Assessor's Office of these homes and those surrounding them is $8 billion.

A century ago, this forest was fairly open, with mostly larger trees. Experts estimate there were likely 40 to 50 trees per acre back then. The difference today is staggering. The Forest Service estimates there are now 500 trees per acre in much of the San Bernardino Mountains--40 trees before fire suppression; 500 trees today.

That is also eloquent testimony to what happens with the fuel ladders that are generated by the overcrowded forests. This is more than 10 times the density of trees that existed a century ago. It is startling, it is dramatic, and it is a huge difference. So this is what we have created with a century of ``do not cut a tree'' fire suppression: extremely dense, unhealthy forests.

The Senate agreement would get projects moving quickly to thin these forests and restore them to health. The San Bernardino Forest would be among the highest priority areas to receive hazardous fuel treatments under the legislation. All the insect-infested areas would fall within the priority areas for treatment.

With the expedited administrative review process, we could treat these acres more quickly. Environmental analysis would focus on the work that needs to be done, not multiple theoretical alternatives. We know we need to thin these forests. We do not need to study 6 or 12 different ways to do it.

The expedited administrative review process would also help us past the confrontational delays caused in the current appeals process, and the additional funding the bill authorizes would also help.

Finally, we have spoken to Republican colleagues who have agreed to add a $50 million authorization for emergency grants to States and localities for dealing with situations exactly like those in the San Bernardino Mountains today. So there is money to help communities do their wildfire plans to help them move to develop areas they believe need this thinning, and these grants help additionally.

Communities could clear evacuation routes from mountain areas, like the Lake Arrowhead region, to ensure that people have a chance to escape in the event of a catastrophic fire. One family trying to escape with two children in their car was burned to death because the car could not move faster than the fire.

Brush would be cleared around shelter-in-place locations like schools in case people do not have the opportunity to escape in time. Communities would obtain funding for evacuation drills and other advanced planning. I am very grateful the other side agreed to add this $50 million segment.

The Senate bill will also help prevent chaparral fires. Some have said: Oh, no, it won't. Here is Scripps Ranch. This is a large subdivision outside San Diego. You see the fire--miles of fire line approaching the ranch.

The legislation authorizes significantly more money for hazardous fuel reduction efforts. We authorize a total of $760 million. That is $340 million above current funding. Again, the House bill has no dollars for this kind of public land mitigation. Our bill does.

Moreover, there is an understanding that the bill's sponsors will work to continue to increase funding substantially. Let there be no misunderstanding on this point, these funds are available to be used in brush areas like chaparral as well as in forested areas.

Second, the legislation requires at least 50 percent of the funding goes to community protection. This is a significant improvement over current law which does not require any set amount of hazardous fuel reduction go for community protection.

Perhaps most importantly, the legislation calls for communities to plan their own defense through community wildlife protection plans. That is a problem. People who live in dry Southern California areas want the trees, want the bushes, want the fuels on the ground. Historically they have resisted putting together community fire protection plans. That is folly. They have to do it. In chaparral, it is important to get community support behind prescribed fires to clear out the brush. So far, as I said, many communities have been reluctant to support prescribed fires because of the perceived risks of these fires. But community wildfire

plans will give the community the ability to choose whether it wants the risks of prescribed fire--or some cutting or thinning--or the much greater risks of wildfire.

Community wildfire plans will play an important role in gaining popular support for a workable way to defend these dry communities.

Another key issue--I am just about through--in chaparral is reducing the risk of homes burning on private land. The community wildfire plans provided for in this bill will help in this area, too, because they are required to include recommendations to reduce homes igniting throughout the community.

We owe it to our communities to do the best we can to protect them from catastrophic fire. I wish--I truly do, from the bottom of my heart--the California wildfires would be quickly extinguished and controlled. We need to do everything we possibly can.

I might report the regional forester called this morning. We have been pushing the White House and the Defense Department to lend every piece of available equipment--C-130s, Sea Stallion helicopters with buckets, tankers--everything they have. For the first time, I got the report that they have everything they need now to fight these big fires. I am very grateful for that and express my gratitude.

I am happy to yield.

I thank the Senator.

The Senator is very kind.

May I just say, thank you for the help that has come from Oregon. It is a long way away. But we are very grateful. New Mexico is sending help. Nevada--the Senator from Nevada is on the floor--sent help. Arizona has sent help. We are very grateful for that.

Thank you.

The Senator is correct, through the Chair, if I may. We have discussed this and both of us wanted to protect the collaborative process. We wanted to protect the ability of individuals to go to meetings, to state their issues, to have those issues considered.

The only change I see in this is twofold. The first is that they will have the environmental review to look at, which is important in understanding what you differ with in the environmental review and then being able to make the case.

Secondly, the number of alternatives is reduced from five to nine to one. There is a good reason for that. As I pointed out earlier, if we were talking about a network of highways or something like that, you may want five to nine alternatives to be considered. We are talking about an area which has been designated in the highest risk of catastrophic fire. Therefore, the alternative would be one. For example, do you believe there is too much thinning? Do you believe there is too much burning? Would you do mechanical in what proportion to burning to thin this area out? There would be the ability to come in with one precise alternative.

Of course, the other alternative that some might argue for is to do nothing. They would have that ability as well.

You have been a great ranking member and I have enjoyed every minute.

Through the Chair, if I may, I would like to thank you, Senator. I appreciate the chairmanship of this committee, your working with Senator Wyden and I. I am delighted to hear what you have said about the emergency supplemental and getting the report language back in. Thank you very much.

Madam President, it is an honor for me to participate in this debate, not only because of the importance of this legislation, which I will talk about in a minute, but because of the process which has brought us here and what the public is now observing.

As for the last little while, they have observed leaders on both sides of the aisle talk in support of a highly contentious issue that we have been trying to bring to resolution in this country for years. Today, we have before the Senate a bipartisan solution, one that is the result of literally years of effort by a number of Senators who I will mention, and the result of a collaborative effort to bring together the Senators from various perspectives and negotiate an outcome that would have the common ground to build positive solutions for the future and much more benefit to all sides than the conflict which has been so much a part of this issue over the last few years.

I hope as this debate proceeds that the public will notice what is happening in the Senate today, as we see strong leadership from both sides of the aisle stepping forward, reaching a compromise that probably none of us would have crafted ourselves but which moves the issue much more further forward than anything we have seen in the past.

I will speak for a minute about how this came about. We have already heard several comments today about those who have worked on this from the past. It just so happens that Idaho--Senator Craig was on the floor and will be back in a moment--has two Senators who happen, just by circumstance, to be the chairmen of the two forestry committees in the Senate. Senator Craig chairs the forestry subcommittee of the Energy Committee. Senator Wyden from Oregon, who just spoke, is his ranking member. I chair the forestry subcommittee of the Agriculture Committee. My ranking member is Blanche Lambert Lincoln, who is a cosponsor of the base legislation, which was initially put forward in the Agriculture Committee and which became the vehicle around which these negotiations centered.

Senator Craig, Senator Wyden, Senator Smith from Oregon, myself, Blanche Lambert Lincoln, Senator Domenici, the chairman of the Energy Committee, Senator Cochran, the chairman of the Agriculture Committee, both of the Senators from Arizona, Mr. Kyl and Mr. McCain, along with Senator Feinstein from California, Senator Baucus from Montana, and other Senators came together and said: We must find a way to get past the intense battles that always bring this legislation down and find a way to build a path forward, one that protects the environment, protects the natural resource-based economy, protects our urban and rural communities, and protects the world from the environmental impacts of the devastation of these forest fires. It is that which we have before us today.

I thank my chairman, Senator Cochran in particular, for the strong leadership he has provided; and Senator Domenici and Senator Craig from the Energy Committee who have provided such strong and consistent leadership on this issue.

Why is it that I say this is such an important and critical issue to America? Everybody in America who is looking at the news right now is watching what is happening in California. In California, fires are raging. The death toll is mounting. The devastation to the environment is obvious. What is happening there now is an example of what has been happening across America for years, as we have fallen into an inability to implement forest management decisions in America on our public lands. I do not have the exact statistic in front of me, but I believe the 10-year average is that we have seen something in the neighborhood of 4

million acres of forest ground burn a year. For the last 4 years the numbers were approximately 3.3 million acres this year, 7 million acres last year, 3.3 or 3.7 million acres the year before, and then another 7-plus million acres the year before that.

These acres burn in devastating ways, destroying wildlife and habitat, destroying our forests, and causing other significant damage to rural and urban communities, to natural resource-based economies in States such as Idaho, where we rely on a timber economy.

Another aspect that is not often noticed is it is delivering to the atmosphere immense amounts of carbon dioxide. In fact, I am looking for some of the statistics on this, but the amount of gas that is put into the atmosphere, in terms of the kinds of debates we are having over greenhouse gases and global warming, is phenomenal. To give one example, the Hayman fire in Colorado recently was analyzed and it was determined that in 1 day of that fire's burning, it put enough CO2 in the atmosphere to equal the amount of CO2 that all of the cars in the United States put into the atmosphere on that day.

If we multiply that times the number of fires we have been having over the years, the load of CO2 or greenhouse gases into the environment that is caused by the forest fires becomes a monumentally large issue in relationship to our efforts to control global warming.

Forest fires go from the broad issues of global warming to the narrow issues of a small community such as the community in Idaho that I recently visited, Elk City, which I at that time said was ground zero for this debate, a little community that is literally at the end of the road, in the middle of a tremendously beautiful forest in which the fuel load has been building year after year and now has a higher fuel load by several factors than the fuel load in Yellowstone when the Yellowstone fire started a few years ago.

This community has only one road in and one road out. They have been crying for support from the Federal system, to have some kind of protection of their community in terms of just what the threat is to loss of life, let alone the threat of the loss to their economy that would be caused by a forest fire. This little city, Elk City, ID, is as much involved and interested in this issue as are those who are battling over global warming issues. It is for that reason this legislation is so critical to our Nation.

I want to go over a little bit about the compromise, because the compromise we have reached today is a very broad-based critical compromise. It brings together a number of important pieces of the debate that have been counterpoints in conflict in the past and have now come together as part of a commonsense solution.

First, resources are provided in this bill for forest management at a significant level and in a significant way. One of the things we know is that prevention is critical. Madam President, $760 million in annual funding for fuels reduction on Federal lands has been provided in this legislation and that can be used also in related grants for State and private forestry programs. Fifty percent of these resources are required to be used in the wildland/urban interface, one of the critical areas we are now watching as the fires burn in California.

This critical wildland/urban interface is defined by local communities. We implement and follow the recommendations of the Western Governors Association as they talk about the collaborative process that needs to be put into place so citizen involvement can be enhanced in defining and implementing the protection plans for protecting our forests and the related communities, both rural and urban.

Second, this legislation for the first time in legislation proposes specific protection for old growth in the forests. Where there are old- growth stands in the forest, this legislation provides those who are implementing fuel reduction programs must protect those old-growth stands to the maximum extent they can. Conversely, it also provides that hazardous fuel reduction projects are intended to focus on small- diameter trees, thinning, and strategic fuel breaks, and should retain the large trees as appropriate for resilient stands. The point is the focus on small-diameter timber in these fuel reduction programs is going to provide opportunities for some of the communities that have been hit so hard by the reduction of logging and timber activities to find alternative sources for their economy to grow.

In Cascade, ID, we have a company that is trying to get started now, which is providing unique new ways of utilizing small-diameter timber to help in restoring and protecting our environment after fires have gone through, using the very small-diameter timber we are talking about in these forest fire prevention plans.

I should make clear, the focus on small-diameter timber is not to turn our back on the need to reform and solve the problems with regard to timber activity and logging activity. We can and should have a strong, healthy, natural-resource-based environment as well as strong, healthy forests. We can achieve those objectives. This bill is going to help us implement a number of the important provisions that will achieve those objectives.

Next, as the Senator from Oregon has already indicated, it protects public involvement. One of the things it does is it limits the number of alternatives the Forest Service must consider. Our minority leader, Senator Daschle, already indicated the expense and the time delay that is caused by the drive, under our current system, to force endless analysis but delaying getting to the implementation part of forest management decisions. This bill requires that in addition to the proposed fuel reduction program that is adopted by the Forest Service, the Forest Service must also consider the ``no action'' alternative, and at least one other alternative, if it becomes appropriate under the collaborative process that is moving forward, allowing for citizens to propose alternatives and have the Forest Service consider those alternatives as the process moves forward, but providing some relief so the Forest Service can get on with the decisionmaking.

In addition, what I have called litigation paralysis is addressed. One of the problems we face in forest management decisions today, possibly the biggest one, is that under our current system, no matter how much evaluation and study is put in, no matter how many alternatives are considered, at the end of the day the proposal that is adopted is litigated and we end up in paralysis through continuous litigation that simply stops the process from moving forward.

Let me give an example. A couple of years ago I went to a forest in Idaho. I was taken there by the Forest Service employees who had proposed a thinning project to address an insect infestation problem. They explained to me why this forest, both in terms of forest fire and in terms of its health and safety against insect infestation, needed to have this thinning project proceed.

I was impressed with what they taught me. I went away thinking this forest is going to have some improvement. I went back to the same forest several years later. No thinning activity had taken place. I was there with the same people. I asked them what had happened. They advised me they had their decision challenged in court and, although they had ultimately prevailed in the litigation, it was now 2 years later and it was too late. The insect infestation had gone too far; there was no point in doing the thinning project. The forest for that purpose had been lost. It is now a fire hazard, not to mention the fact the health of the forest itself has been sacrificed.

The Forest Service won the litigation, but the delay of the litigation stopped the ability to implement the management decision. That is just one example of the kind of thing we are talking about.

By the way, in that case I said, What was the issue? They explained to me the issue that was litigated.

I said, Why didn't you just concede that. It was not that big of an issue.

They said, The way we won the litigation is to basically concede that point and then ask permission from the court to go on because it really wasn't central to our efforts.

The response they gave me was: This issue was never raised as we were putting together the alternatives, going through the NEPA project. We didn't know we were going to get challenged on this or we could have accommodated it as we were moving along.

My point is that an entity, a group that wanted to stop this thinning project, sat back and let the entire process proceed without ever raising their concerns in the citizen involvement process. They waited until that entire process had come to a conclusion and then filed a lawsuit. The first time the Forest Service found out about this issue was then.

These kinds of issues are addressed in this bill. For example, we are requiring the Forest Service to develop a new appeals process that is similar to the predecisional appeals process the Department of Interior now uses. This is important, because it gives those who are concerned about good decisionmaking at the Forest Service, and who are already involved in the public process, the ability to challenge that through an appeal before the final decision is made, a predecisional appeal process. Then if they still do not like the outcome, nothing stops them from filing a lawsuit at the end of the process. We are expanding and enhancing the ability of involvement here by the public.

However, we are saying to individuals and groups who want to challenge these decisions you must get involved at the beginning. Those who want to challenge these decisions must show they have been involved in the process and participated in the public involvement process from the beginning. They also must show they have exhausted their administrative efforts, their administrative remedies. If they have a remedy with the Forest Service, they should go to the Forest Service through its appeals process, and exhaust that process first before simply filing a lawsuit and moving the whole process into litigation paralysis. With the enhanced citizen involvement we have provided, once a decision gets made, if there are those who are still unhappy, they have a right to file a lawsuit under this legislation.

What the courts must do at that point is expeditiously move the litigation. In the legislation the courts are encouraged to expedite these cases.

Second, this legislation limits the injunction that the court can issue to 60 days and allows continuous unlimited 60-day renewals but requires those who would come into court to simply stop anything from happening to show the court at 60-day intervals updated information that the grounds for stopping the action still exist and they haven't been resolved in some way.

Finally, it requires the court to balance the harms of what would happen if we don't do the thinning project or the proposed fuel reduction project, future harms that could come as a result of that against the current harm of what the injunction is proposed to stop. It simply requires a court to balance those harms as they evaluate whether to issue an injunction.

There are those who say the injunction should be issued no matter what because once a tree is thinned or cut it can never be put back. The response to that is, as true as that is, if you look to the future and to the future harms, once the insects take the forest, you can't bring it back easily, and those trees are dead, too. Once the forest burns, you can't then rebuild a healthy forest that you would have been able to do had you implemented these decisions.

All we are saying in this legislation is that the court must balance the harms from inaction against the harms of the proposed action in terms of issuing the injunction.

These are important factors that will help us break the litigation paralysis but still provide significant public input and significant public support and the rights of the public to challenge the decisions made by the Forest Service.

There are a number of other important parts of this legislation. There are critics of this legislation, and I assume that at some point throughout the debate today and tomorrow--as long as it goes--there will be an opportunity and a need to respond to some of the charges about this legislation. I will not go into all of that now.

I will simply conclude by saying again what we have before us today is a bill that is probably different than any one of the Senators who came together from both sides of the aisle would have drafted if they had drafted it on their own. But it represents a bill that goes to every issue that has been the cause for stalling which has stopped us from being able to get the legislation through, and it has resulted in compromising to move us forward in every one of those areas. We provide the resources. We provide protection for old growth. We provide protection for public and citizen involvement. We assure that the process for litigation is streamlined but is still meaningful. And, most importantly, we make it so that once our forest managers--those who have studied, the scientists who know what our forests need--have come up with a plan and have made it through the public process and through litigation they will actually have a real meaningful opportunity to implement forest management decisions.

This legislation is critical for Americans. It is unfortunate that we have to be debating it while we are watching California burn. But nevertheless the pressure from the forest fires over the last few years has shown us across America that it is time for us to come together as we have on this legislation and take this important step to protect our forests, to protect our natural resource base economy, to protect our communities, and to protect the world.

Madam President, we are on a very critical bill right now and I must object.

Madam President, I would be glad to respond.

As the Senator from Washington knows, all of us have very critical issues that are very important to us, that we are trying to get time on this floor to consider. The way we handle that is we work with our respective leadership in scheduling these matters. I am not in a position right now to speak for either the leadership on the other side or my own leadership with regard to what kind of an agenda they intend to put forward with regard to the floor. What I do know is we have waited our time for this Healthy Forests legislation to come forward. We now have been given floor time, and we cannot relinquish it. Therefore, I will just encourage the Senator from Washington to work with her leadership and our leadership to see when the scheduling issue she wants to address can be brought forward.

Madam President, I suggest the absence of a quorum.

Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

Madam President, I ask permission to utilize the 10 minutes which I have been allocated under the unanimous consent agreement.

Madam President, we are getting close to a vote on this amendment. I wanted to take this opportunity to respond to a couple of the issues that have been raised by those in opposition to it.

First, it is notable that very little in opposition to this amendment has been said. There are a few things I will get into, but the fact is, as we said at the outset, a broad group of bipartisan Senators have come together to address the issues from all perspectives and build a common ground forward. I believe the relative lack of attack and concern that has been raised with regard to this amendment is indicative of the success which those Senators have achieved.

There have been a few criticisms made though. I want to respond to some of them.

First, with regard to the allocation of the resources, it has been argued that only 50 percent of the resources have been allocated to the wildland/urban interface. Remember, we have $760 million worth of resources allocated in this bill. The point, however, needs to be made that in addition to the fact that our wildland/urban interface needs to be addressed, much of the problem exists out in the forests away from that wildland/urban interface. In fact, when the forests get hot and get burning, when you get winds such as we are seeing in California right now, it is very important to have protection more than just 100 yards or a couple hundred yards away from the wildland/urban interface.

We are seeing in California right now what high winds and geography can mean with regard to a forest fire, and we must have the flexibility in our forest managers to make the decisions about where the best management should occur.

We also have heard that there is apparently a disagreement between the proponents and opponents of this legislation with regard to what the real problem is. Those who oppose this amendment say that the real problem is that we are not putting enough resources into fuel management and fuel reduction issues. Those of us who are proposing the legislation are said to be focused more on trying to reduce litigation.

The fact is, this is an indication of the fact that there are different points of view as to what we ought to be doing. It is what this bipartisan group of Senators did to address the issue. There are some who believe we need to solve the problem by putting more resources on the ground and getting those resources out there in forest management. That is why this bill authorizes $760 million of resources to go into the management of our forests.

We do, however, recognize that there is a large problem in the litigation arena. It is that litigation problem that the bill also addresses.

There have been arguments made that as a result of our efforts to address the litigation paralysis, public involvement has been limited. That is simply not true. No public involvement under NEPA has been eliminated. In fact, the predecisional appeals process we are proposing to create in this legislation will create a new avenue of public involvement. What we are saying, however, is that the litigation has to be brought in the State or the district where the fire is, where the proposed project is. Those who want to get involved have to exhaust their remedies, a very standard legal procedure that is required in many areas. Before you are going to file a lawsuit, go through the administrative procedures that are provided to try to achieve your objectives. And then, finally, if that doesn't work, there still is the route of litigation allowed. We simply encourage the courts to act expeditiously and require the courts to look at it every 60 days to see if the circumstances have changed.

I believe these are reasonable and fair protections that are built into place.

There has been discussion that even though we have $760 million allocated for forest fuel reduction projects and management in this bill, that the bill doesn't guarantee that that money will go there because it is not an appropriations bill. That is the same thing that is true about every authorization bill. The fact is, when we authorize these moneys, under the way the Congress works, it is still necessary for the Appropriations Committee to then appropriate the moneys. We will be working with the Appropriations Committee to take that next step. But to criticize this amendment because it is not an appropriations bill is simply to put up a false attack and to create a false impression that this is not a meaningful authorization of $760 million, subject, as all bills are except for entitlement programs, to the appropriations process.

One final point: There has been an argument that litigation really isn't the problem because a recent GAO report showed that the vast number of forest management decisions were not appealed. That study and the way people use it shows how you can use numbers to achieve different results depending on the outcome you want to address. The fact is, categorical exclusions represented a significant number of the actions of the agency. These are actions which the current law--not this law, but current NEPA law--does not require or allow to be appealed.

The reason is because they are basically the kinds of actions that have negligible or have no impact on the environment. It is things such as cutting firewood and mowing lawns and other types of categorical exclusion activities. There is more than that that is in that category. But the point is, these are categorical exclusions for things that have no significant environmental impact.

That is a current part of the existing law. When you look at the proposed treatments that have been more than a categorical exclusion, that require further NEPA analysis, then the level of appeals goes up dramatically. In fact, 59 percent of them are actually appealed. Of those that were appealed, it is interesting to note that most are found to be without merit; 19 out of 180 were reversed.

My point is, as I said earlier today, even though these appeals may be lost, what they do is cost the time, sometimes a full year or more, for the implementation of the management decision, which in many cases makes it moot at that point because the insect infestation has gone beyond the proposal, or because a fire has occurred or something else has made it so that the Forest Service simply can't proceed.

We are facing litigation paralysis. We do need additional resources on the forests. This is the first legislation in the history of the country that has provided statutory protection for old growth. This is a bipartisan compromise that will help us move significantly forward in these efforts to address this critical problem in our country.

I yield back the remainder of my time.

I thank the Chair.

Madam President, even if we were not having the catastrophic fires we are seeing every day in southern California right now, the forest health issue is of vital importance to us in the West, and many of the speeches that have been given here underscore that.

I am glad the Senate is considering a forest health bill with the opportunity for us to offer amendments. I will not go through all of my statement because I know we want to get to those amendments. There has been a lot of time used already in discussing the bill in general terms. We need to get down to some of the specific amendments.

Let me make a few general statements about the bill because I do think it is good to at least give our perspective on the situation.

Some have tried to portray the issue as one of support for the concept of active management of our national forests on the one hand as opposed to simply allowing nature to take its course. Let me be clear that I do not agree with that portrayal of the debate taking place in the Congress. I have always viewed active forest management as not only a desirable policy but one that is absolutely necessary. In my opinion, support for active and responsible forest management does not equate with support necessarily for all the provisions in this substitute amendment that will be coming before us.

I want to be sure that whatever legislative language we pass provides meaningful new authority to Federal land managers, that it is focused on the communities that are most threatened by wildfire, and that it does not unduly restrict the public's ability to participate in the oversight of public lands management.

In addition, I believe commercial timber operations are an important

part of our national forest policy. It is important that legislation dealing with forest health not be a pretext for accomplishing that purpose as well.

I wish to discuss some of the concerns with the forest health issue based on the initial reading I have done of the amendment we are going to be debating and amending.

Let me begin by stating the obvious. That is, the health of our Nation's forests is absolutely critical at this point due to generations of misguided forest management policies. Many forests are overcrowded with unhealthy buildup of underbrush and tree overcrowding. I think all the experts in this field recognize that. We see evidence of that not only with the California fires, but we see evidence of it throughout the country.

The effect of these large wildfires can be catastrophic, as we all can see. We have, as Senator Domenici indicated, seen some of this catastrophe in my home State of New Mexico. He made reference to the Cerro Grande fire at Los Alamos where a substantial number of homes were destroyed and a great amount of the forest was also destroyed.

Clearly, we need to take proactive steps to improve forest health. In my view, the proposed forest health amendment does some things right but, in some respects, I think it misses that opportunity. It does not provide any meaningful new authority for funding to help Federal land managers, but it does add new restrictions on the public's ability to participate and restrictions on the Federal courts' ability to review what is done.

There is a basic disagreement among some of us in Congress and among those who are most ardently supporting this amendment, and that is a disagreement about what is the most significant public policy issue we are faced with in trying to come to grips with these catastrophic fires.

The amendment we are going to be debating seems to be based on the premise that the underlying and essential problem that needs fixing is that we have too much public participation in the decisionmaking process, in management decisions, administrative appeals, and lawsuits.

One of the speakers earlier today talked about a litigation paralysis, saying that is the problem, that is why these forests are burning up. That is what we need to change most quickly. I say this because the major new authorities provided in the amendment are ones that limit appeals of agency decisions, limit judicial review, and require courts to follow new standards. I don't really think the facts support this assumption that litigation is the major and most significant problem we face.

I recently asked the General Accounting Office to study whether the National Environmental Policy Act compliance requirements, the agency appeals, and the litigation that has occurred were causing significant delays in hazardous fuel reduction projects.

The GAO issued a preliminary report in May. They just completed a final report last Friday. The GAO in that report reviewed 818 Forest Service management decisions over a 2-year period, fiscal years 2001 and 2002, and these 818 forest management decisions involving fuel reduction activities on 4.8 million acres of land. These were the first 2 years of the so-called national fire plan which we have all been trying to see implemented.

It is worthwhile to take just a minute to summarize what the GAO found. The GAO found that the vast majority of acres treated were categorically excluded by the Forest Service from NEPA review. That is a term of art, ``categorically excluded.'' That means this is authority in the law for the Forest Service to say: We are going to exclude certain areas from NEPA review, and we have the authority to do that.

The GAO found the vast majority of acres that were treated were, in fact, categorically excluded. None of these projects were appealed, none were litigated, none were subject to appeal, and none were subject to litigation.

Only 25 of the 818 were litigated. That represents about 3 percent of all projects. That involved about 100,000 acres. Again, this is out of the 4.8 million acres that was studied by the GAO for those 2 years.

Significantly, the GAO found of those 25 cases that were litigated, 23 involved commercial timber sales. Of the 25 cases that were litigated, the courts found the Forest Service lost on all but one of those cases. So to the extent litigation was involved, the vast majority of the time the Forest Service was found to have been in violation of the law.

In my opinion, litigation is not the major problem. I am not saying we cannot do some things to streamline the appeals process and to be sure any frivolous litigation is eliminated, but I do think we need to recognize the GAO made a study that shed some light on what we are doing.

The majority of forest-thinning projects were categorically excluded from NEPA. In my State, in region 3 of the Forest Service, which included Arizona and New Mexico, the GAO found 78 percent of the projects were excluded, and that covered 91 percent of the affected acreage. So 91 percent of the affected acreage was never subject to appeal, never subject to litigation.

This is a useful report. There is a one-page summary of it. I ask unanimous consent that it be printed in the Record after my remarks.

The only other report we have analyzing empirical data of the Forest Service appeals involved a 2003 study by a political science professor at Northern Arizona University. Contrary to the assertions of the Bush administration, the Northern Arizona University study found the number of appeals had been decreasing since 1998.

I will speak a little bit about what I do see as a major issue as part of this legislation. Based on our experience with forest health issues in my State, the real issue has not been judicial appeals, judicial review, but instead has been providing adequate funding for forest health projects and stopping the Forest Service's harmful practice of borrowing funds from fire prevention accounts in order to pay for the cost of fighting forest fires. I will offer an amendment on that in a few minutes. I wanted to flag that as an essential problem I think needs to be dealt with. It is not dealt with in the amendment coming to the floor now, but I will give the Senate the opportunity to deal with it. I hope the Senate will agree with me this is something we need to fix.

I commend Senator Burns and Senator Dorgan, the chairman and ranking member of the Interior Appropriations Subcommittee, for their efforts to secure $400 million last month to repay the accounts the agencies borrowed in order to fight fires. I also appreciate Senator Burns's comment that the $400 million is not the final word, especially since the estimates those agencies have given is they actually had to borrow over $600 million from other programs so far this year.

However, the year-to-year approach we have followed of borrowing funds from other accounts in order to deal with forest fires is just not adequate. Even when our Senate Appropriations colleagues were able to obtain supplemental funding to repay these other Forest Service accounts, every year on-the-ground restoration work is substantially delayed while the Forest Service waits for a supplemental appropriations bill to be enacted into law.

In New Mexico, there are some very critical Forest Service fire prevention projects that were postponed for up to a year as a result of borrowing from these accounts. These include wildland/urban interface fuels projects in the Carson National Forest, the Gila National Forest, the Lincoln National Forest, and the Santa Fe National Forest.

In addition, a contract for construction of a fuel break around a community at risk in the Cibola National Forest was postponed for 6 months because of the agency borrowing to cover firefighting costs.

This is not criticism of the agency. The agency has no alternative but to do this borrowing, the way we have set it up. What happens is very simple. The President asks for too little money for firefighting. He does that every year--at least he has for the last several years. I have some charts I will show in a few minutes on that.

The President asks for too little money. We in the Congress agree with

the President and appropriate too little money. Then when the fires start happening, of course, the Forest Service has to find ways to fight those fires. The only option they have is to shut down their activities in other areas and use that money instead to fight fires.

One of the other areas they shut down activity in is in this forest- thinning work, so that we put it off, say, OK, we cannot get it done this year; we are too busy fighting fires; we will try to get it done next year. Then next year comes and once again they may have to use the money they had hoped to use for the forest-thinning activities and the forest health activities to, in fact, fight fires. That has happened year in and year out. It is a classic case of being so busy killing alligators that there is not time to drain the swamp. That is exactly the position we have put the Forest Service in and we need to try to correct that. I will offer an amendment with the hope the Senate will agree with me and make that correction.

The lack of funding for forest health projects continues to constrain our efforts to actively manage our forests to deal with these disease and drought conditions which have been discussed at length. Three years ago, Congress found funding was the main obstacle to improving forest health and reducing a threat of unnaturally intense catastrophic wildfire. Specifically, we have created the National Fire Plan, with $1.6 billion in new funding for existing programs, to improve forest health conditions. At that time, we all agreed on the need to sustain a commitment to the National Fire Plan over a long enough period so we could make a difference. We were talking about 15 years. That meant at a minimum sustaining the fiscal year 2001 funding levels for all components of the National Fire Plan.

Unfortunately, as I stated just a few minutes ago, the administration has systematically and continually proposed major cuts and, in some cases, zeroing out critical programs within that National Fire Plan, including the burned area restoration program, rehabilitation projects, economic action programs, community and private land fire assistance. So the proposed cuts we have received in the budgets each year have eliminated funding for these programs, notwithstanding the clearly identified demand for these programs. For example, New Mexico and other States have suffered unnaturally intense, catastrophic fires, and there is a desperate need for funds to restore and rehabilitate the burned areas.

Finally, the 2002 report and conclusion by the National Academy of Public Administration confirmed the main obstacle constraining the Forest Service from substantially increasing its proactive efforts to reduce fire risk is the lack of adequate funding. The proposed amendment to H.R. 1904 authorizes $760 million. I appreciate the fact that funding level is in there, but it does not ensure the real funding will be provided. The problem is, when we get into the actual appropriating of funds, we do not get the job done.

In earlier debates, I have repeatedly stated the Forest Service needs to focus its hazardous fuels reduction effort more directly on the threats communities face. We will have an amendment to that effect. I know Senator Boxer from California has an amendment to try to do a better job in that regard. I think that will be an important issue for us to try to deal with as well.

In sum, Congress required a sufficient proportion of all hazardous fuels reduction funds be spent on projects near communities. Nevertheless, the General Accounting Office recently found that more than two-thirds of the Forest Service decisions involving fuel reduction activities were targeted exclusively at lands outside this wildland/urban interface area. The amendment that has been brought to the floor here goes on to state that this requirement is based on a national average, this 50 percent requirement. They are saying we should have 50 percent going for projects near communities, in this wildland/urban interface. If you have a requirement such as that based on national average, obviously individual forests or even entire regions can significantly ignore this direction we were giving them.

In addition, the provisions of the amendment only apply to funds allocated for projects pursuant to title I of H.R. 1904 rather than to the entire hazardous fuels reduction program.

There are many questions about the specific language of the amendment at which we need to look. Let me talk for just a minute about the new administrative appeals process.

Apart from what the amendment does not do, I am very concerned with some of the things the new authority does try to do. The provision that seems the least developed in the amendment, the one that causes me significant concern, is section 105. This section directs the Secretary of Agriculture to establish a predecisional administrative review process that will serve as the:

sole means by which a person can seek administrative review

of a hazardous fuel reduction project. . . .

This predecisional process is described as covering the period following the completion of the appropriate NEPA document up to the date a final agency decision is issued.

I understand the desire to ensure that interested members of the public are involved during the development of the proposed agency project, and to avoid lawsuits by those who have not been involved in the process, and I certainly agree with that.

However, I think the language is somewhat troubling. As I understand it, the language would limit the right to administratively appeal an agency decision, as well as the ability to challenge it in Federal court, to those who have exhausted the predecisional review process. So we are going to significantly limit the right to appeal or challenge a decision based on a process that has not been established yet and that we are not really clear on what it will permit.

There are other questions about that. As I understand it, there will likely be an amendment offered on that issue as well.

Let me say a word about the Federal courts because many of the others who have spoken have done that. The amendment that has been offered here limits the court's ability to issue a preliminary injunction to no more than 60 days, although a court can renew an injunction indefinitely.

In order to issue a preliminary injunction, a court needs to find several things: No. 1, that the plaintiff is likely to prevail on the merits. That is the first thing the court needs to find. No. 2, that there will be irreparable harm if the injunction is not issued. No. 3, the harm to the plaintiff in not issuing the injunction is not outweighed by the harm to the defendant of issuing the injunction. And, No. 4, that issuing the injunction is in the public interest.

So a Federal court has to find quite a few things to issue a preliminary injunction. Having made this determination, I wonder why we then are saying to the court, unless you come back and renew that injunction every 60 days, we in Congress are going to assume the agency was right and you were wrong. The court has already determined that most likely the agency is in error. So I have concerns about that.

I understand there is a great desire here to limit the Federal court's ability to issue injunctions, preliminary injunctions. My understanding is, also, that this not only limits preliminary injunctions, it limits the Federal court's rights to issue permanent injunctions in some questionable ways.

Let me say just briefly, I do think we need to be sure the bill has adequate protections for national monuments and for roadless areas. There are provisions to exclude designated wilderness and wilderness study areas from the bill. I think we should have that same provision apply to national monuments. I hope we can persuade our colleagues that that makes good sense. I have been told by some that is certainly their intent.

Turning to my home State, 3 years ago we created the Valles Caldera National Preserve in northern New Mexico. I think it would be good to know how the provisions in this amendment would be used there, in that type of arrangement. Perhaps we can clarify that. I hope we can.

There are several other questions about how this relates to other forest initiatives: How does it interact with recent legislative and administrative actions regarding forest health?

There is a stewardship contracting program that includes exemptions from

the National Forest Management Act and provides new authority for the Forest Service and for the BLM to trade the value of big trees removed by a contractor for restoration services completed by that same contractor. We need to see how this new legislation would impact upon that.

In addition, the administration has taken several regulatory actions recently under its Healthy Forests initiative. It has promulgated new rules establishing a categorical exclusion from NEPA, which would apply to projects, including timber sales, that cover up to 1,000 acres each. The administration has published new rules overhauling the Forest Service appeals process. Those new rules exempt all ``categorically excluded projects from appeal.''

In other words, the administration has taken significant action to deal with several of these issues. We need to know how this legislation affects the actions that have already been taken.

Slash treatments is another issue that I think deserves some attention. We have a serious issue here in that in my home State they go through, they cut down the diseased small trees, they put them into piles, and then they have to come back and do a sequential treatment, come back and remove that slash and be sure it does not become bug infested and become an even greater problem. The GAO analysis found that in my State the Forest Service and BLM completed only 19 of the 34 followup slash treatments that they had committed to do in a timely manner. Again, it is probably a lack of funding that has caused that shortfall.

I have some additional concerns and questions about the provisions in the amendment. I will raise those at the appropriate time as we get into the amendments.

In closing, let me reiterate I am very glad we are proceeding to consideration of the bill. Since some of us were not involved in the negotiations, I do think it is appropriate we offer some amendments. Especially it is important for Senators from States that are directly affected by this threat to have that opportunity. I commend the people who did work hard in getting this legislation to this point. I do think there has been a genuine effort to find some compromise and to make some improvements. Clearly, this bill as it stands is substantially better than what the House has sent us. But it can be substantially improved from where it is. I hope the amendment we offer can be seriously considered, and hopefully adopted, and we make those improvements.

With that, I yield the floor.

Exhibit 1

United States General Accounting Office--Report to Congressional

Requesters

forest service--information on appeals and litigation involving fuels

reduction activities

Why GAO did this study

The federal fire community's decades old policy of

suppressing wildland fires as soon as possible has caused a

dangerous increase in vegetation density in our nation's

forests. This density increase combined with severe drought

over much of the United States has created a significant

threat of catastrophic wildfires. In response to this threat,

the Forest Service performs activities to reduce the buildup

of brush, small trees, and other vegetation on national

forest land. With the increased threat of catastrophic

wildland fires, there have been concerns about delays in

implementing activities to reduce these ``forest fuels.''

Essentially, these concerns focus on the extent to which

public appeals and litigation of Forest Service decisions to

implement forest fuels reduction activities unnecessarily

delay efforts to reduce fuels.

The Forest Service does not keep a national database on the

number of forest fuels reduction activities that are appealed

or litigated. Accordingly, GAO was asked to develop this

information for fiscal years 2001 and 2002. Among other

things, GAO was asked to determine (1) the number of

decisions involving fuels reduction activities and the number

of acres affected, (2) the number of decisions that were

appealed and/or litigated and the number of acres affected,

(3) the outcomes of appealed and/or litigated decisions, and

(4) the number of appeals that were processed within

prescribed time frames.

What GAO found

In a GAO survey of all national forests, forest managers

reported the following:

In fiscal years 2001 and 2002, 818 decisions involved fuels

reduction activities covering 4.8 million acres.

Of the 818 decisions involving fuels reduction activities,

about 24 percent were appealed--affecting 954,000 acres.

However, of the 818 decisions, more than half, 486 decisions,

could not be appealed because they involved activities with

little or no environmental impact. Of the 332 appealable

decisions, 194 (about 58 percent) were appealed. There can

multiple appeals per decision. In addition, 25 decisions (3

percent) affecting about 111,000 acres were litigated.

For 73 percent of the appealed decisions, the Forest

Service allowed the fuels reduction activities to be

implemented without changes; 8 percent required some changes

before being implemented; and about 19 percent could not be

implemented. Of the 25 litigated decisions, 19 have been

resolved.

About 79 percent of appeals were processed within the

prescribed 90-day time frame. Of the remaining 21 percent,

the processing times ranged from 91 days to 240 days.

The Forest Service, in commenting on a draft of this

report, generally agreed with the report's contents. Their

specific comments and our evaluation of them are provided in

the report.