The "Timber Rider":
Section 2001 of the Rescissions Act

Pamela Baldwin
Legislative Attorney
American Law Division

February 22, 1996

96-163 A

TABLE OF CONTENTS

SUMMARY
INTRODUCTION
OVERVIEW OF SECTION 2001
I. SALVAGE SALES
II. SUBSECTION (d) -- "Option 9-related" sales
III. SUBSECTION (k) -- "§318-related" sales
CONCLUSION
ENDNOTES

SUMMARY

On July 27, 1995, §2001 of Pub. L. No. 104-19, the Emergency Supplemental Appropriations and Rescissions Act, became law. Section 2001, "The Emergency Salvage Timber Sale Program," is known as the "Salvage Rider" or the "Timber Rider." The measure directs the sale of timber from national forests managed by the Secretary of Agriculture through the Forest Service and from forests managed by the Secretary of the Interior through the Bureau of Land Management (BLM). The law provides for three types of timber sales, only one of which is salvage: 1) salvage sales -- nationwide; 2) "Option 9-related" sales -- related to the President's Plan for the forests in the Pacific Northwest; and 3) "§318-related" sales -- sales also in the Pacific Northwest related to a previous enactment. Section 2001 goes beyond mere procedural expediting of salvage sales. It limits substantive judicial review by providing the Secretaries broad discretion in document preparation and decision making and by deeming that the procedures and documents of the section satisfy all federal environmental and natural resource laws.

The section insulates agency decisions from challenges under existing environmental and natural resource management laws. The President has directed the relevant Secretaries to comply with all laws, except as to certain procedural measures provided by §2001, and the agencies have executed a Memorandum of Agreement to this effect. However, the scope of review of agency actions under §2001 is so narrow that it is possible that, absent §2001, some agency actions that have been upheld might have been found to be invalid. The effects of current agency decisions will probably ultimately be indirectly considered by the courts, through future challenges to the continuing adequacy of forest and resource management plans after the expiration of the section. This is likely to be especially true with respect to the forests in the Pacific Northwest where subsection (k) directs the release of some sales that have been held to be unlawful, and directs the release of other sales on terms that may not be consistent with the Endangered Species Act or with current forest plans and management guidelines. The extent of the impacts from such sales is not yet clear, but it is possible that the sales might affect several threatened and endangered species and may reduce future agency management flexibility.

Therefore, implementation of Sec. 2001 could increase logging in the short-term, but could result in new delays due to the necessity to amend or revise current plans to make adjustments for actions taken under this rider, and possibly could result in renewed difficulties in implementing the forest management laws and the Endangered Species Act.

Various aspects of §2001 are in litigation. This report discusses the section, its possible effects, and the cases that have arisen under it.

INTRODUCTION

On July 27, 1995, §2001 of Pub. L. No. 104-19, the Emergency Supplemental Appropriations and Rescissions Act, became law. Section 2001, "The Emergency Salvage Timber Sale Program," is commonly known as the "Salvage Rider" or the "Timber Rider." The measure directs the sale of timber from national forests managed by the Secretary of Agriculture through the Forest Service and from forests managed by the Secretary of the Interior through the Bureau of Land Management (BLM.). The section directs three types of sales, only one of which is salvage: 1) salvage; 2) "Option 9-related" sales -- those related to the President's Plan for the forests in the Pacific Northwest; and "6318-related" sales -- sales also in the Pacific Northwest that are related to a previous enactment. It limits judicial review by providing the Secretaries broad discretion in document preparation and decision making, and in determining the consistency of actions with relevant forest and resource plans. The section also deems that the procedures and documents under the section satisfy all federal environmental and natural resource laws. Nonetheless, various aspects of §2001 are in litigation. This report discusses the section and the cases that have been decided under it. (1)

The Forest Service and BLM already have authority, aside from §2001, to conduct salvage sales and already have in place some streamlined procedures to do so. For example, under their "categorical exclusion" exemptions from the National Environmental Policy Act (NEPA), the Forest Service can sell up to 1 million board feet of salvage without completing NEPA documents, such as Environmental Impact Statements (EIS), etc. (2) Salvage sales can be funded from special salvage funds available to each agency. Nonetheless, one of the primary justifications asserted for the §2001 rider is the necessity to salvage extensive volumes of timber damaged by the forest fires of 1994 and by disease and insect infestations. (3) Whether or to what extent agency salvage sales may have been inadequate to date and the specific causes for any such inadequacies are beyond the scope of this paper. (4)

While the salvage aspects of the law affect federal forests nationwide, the other two aspects of the law affect only forests in the Pacific Northwest. Timber sales in that region have been controversial since harvest volumes were increased during the 1980s with increasingly evident impacts on salmon and other anadromous fish and on terrestrial species associated with "old growth" or late successional forests. Beginning in 1989, before the 1990 listing of the northern spotted owl as threatened under the Endangered Species Act (ESA), most timber sales in the forests that were habitat for the owl were enjoined until the FS developed a plan that would maintain the viability of the owl (and hence other species that also are associated with the old growth habitat the owl favors) under the forest management laws. (See Archived IB-93015 for a discussion of spotted owls and federal timber sales.) Debate over forest issues and agency actions has been intense; one court stated that the FS and the U.S. Fish and Wildlife Service (FWS) had engaged in "a remarkable series of violations of the environmental laws" and had exhibited a "deliberate and systematic refusal" to comply with the laws. (5) On the other hand, communities affected by the reduced timber harvests urged that the laws in question be changed in order to restore harvest levels.

Ultimately, the Clinton Administration developed a new overall plan for the region, which came to be known as "Option 9" -- a reference to the fact that it was the 9th option among 10 analyzed in the February, 1994 Final Supplemental Environmental Impact Statement. (6) This Plan has been upheld in court, but that decision is currently on appeal. (7) Necessary studies and forest and resource management plan amendments leading to a resumption of timber sales have been moving forward, but have been complicated by additional needs to coordinate timbering with measures to protect salmon and other anadromous fish and other newly-listed species such as the marbled murrelet, a seabird that comes ashore to nest in coastal old growth. The slowness with which Option 9 has been implemented was cited as one of the reasons for enactment of §2001. (8)

In approving the Option 9 Plan, the court noted that its approval was premised on the continuation of certain elements on which the Plan rested --that new information might require that timber sales and the Plan be reconsidered. (9)

Whether implementation of §2001 will trigger such a reexamination remains to be seen; certainly §2001 is interposed into a factual and legal setting, at least in the Pacific Northwest, that could well be characterized as unstable. Section 2001 does not direct the agencies to comply with current laws, and it substantially insulates agency decisions from review under the laws that govern forest and species management. On August 1, 1995, the President directed the relevant Secretaries to comply with all laws in implementing §2001, "except those procedural actions expressly prohibited by Public Law 104-19." (10) On August 9, 1995, the relevant agencies executed an Interagency Memorandum of Agreement that pledged continued compliance with existing laws, except as prohibited from doing so by Pub. L. No. 104-19.

Although judicial review of agency actions is circumscribed, a court may have occasion to indirectly review current agency actions through future reviews of whether forest plans must be amended or revised to take into account agency actions during the time §2001 was effective. This is true, in part, because it appears the discretion of the Secretaries is so broad under §2001 that the courts have upheld actions that otherwise might have been found to violate the law or be inconsistent with forest policies and unit plans. This may prove especially true with respect to possible reevaluation of the Option 9 guidance itself as a result of implementation of subsection (k), which mandates release of some sales that have been held in the past to be unlawful, and sales on terms different from those the agency intended in carrying the Option 9 Plan. Although the acreage affected by subsection (k) may be small relative to all old growth available throughout the range of the northern spotted owl, the low-elevation, coastal old growth acreage involved may be biologically significant. (ll) In addition, operating sales under terms that predate restrictions to protect salmon and other fish may also impact those species.

The issue of whether Option 9 continues to be valid has been raised in the pending appeal of the decision that upheld that Plan. However, this appeal related to the approval of the 1994 Plan may not be the appropriate vehicle in which to raise possible effects of recent changes.

OVERVIEW OF SECTION 2001

Timber provisions appeared in the original version of the rescissions bill, H.R. 1158, introduced March 8, 1995. (12) This bill was vetoed by the President on June 7, 1995, in part because of the timber provisions. Only slightly modified timber language was added to H.R. 1944, the new Rescissions Act that was ultimately enacted July 27, 1995.

Section 2001 addresses three types of timber sales: 1) Subsection (b) addresses salvage timber sales; 2) subsection (d) addresses "Option 9-related" sales; and 3) subsection (k) addresses "§318-related" sales. Each of these segments raises several issues, some of which have been litigated, some of which have not, as will be discussed below. Several of the general provisions also are significant.

Subsection (e) precludes administrative appeals of sales under subsection (b) and (d). Under subsection (f), judicial review for sales under those subsections is expedited. Preliminary injunctions and relief pending review are precluded, but agency actions are stayed for the 45 day period of expedited review.

Subsection (i) goes beyond "expediting" legal actions and eliminating "dilatory legal challenges," (13) by removing almost all substantive grounds for judicial review. Subsection (i) provides that "the documents and procedures required by this section for the preparation, advertisement, offering, awarding, and operation of any salvage timber sale subject to subsection (b) and any timber sale under subsection (d) shall be deemed to satisfy the requirements of ..." enumerated federal land management laws, the Endangered Species Act (ESA), and "[a]ll other applicable Federal environmental and natural resource laws." This nearly total insulation from judicial review applies to all salvage sales and to all "Option 9-related" sales under subsection (d).

Also, because review is to be on the record and the discretion of the Secretaries as to what they may choose to consider is broad, it is proving difficult to have a court consider any non-agency documents in reviewing agency actions. (14)

While not mentioned in subsection (i), subsection (k) sales are also significantly protected from challenge in that Congress directed that sales be released "with no change in originally advertised terms, volumes, and bid prices ...."

Sales under subsections (b) and (d) are to be reviewed on the record and the courts are to determine if the agency action was "arbitrary and capricious or otherwise not in accordance with applicable law (other than those laws specified in subsection (i)." It is not clear whether this standard is intended to be interpreted as it has been under the Administrative Procedure Act, or whether some new standard was intended by Congress. (15)

Reading all of the review provisions together, courts have concluded that the scope of judicial review is "extremely narrow," (16) or "extremely deferential," and a challenger "must go a long way to have a decision overturned.'' (17)

The duration of §2001 is not clear. Under subsection (j), the authority provided by subsections (b) [re salvage sales] and (d) [re "Option 9-related" sales] expires on December 31, 1996, although the terms and conditions of the section will continue in effect with respect to sales under (b) and (d) until completion of performance of the contracts.

However, subsection (b) twice refers to actions regarding salvage sales taken "during the emergency period." Subsection (a)(2) defines "emergency period" as the period beginning on the date of the enactment of the section and ending on September 30, 1997. As noted, subsection (j) terminates the authority for subsections (b) and (d) as of December 31, 1996, and this provision appears to govern the reading of subsection (b), despite the references to actions during the emergency period. A further consideration is that initially all of the dates specified in the section were September 30, 1997. (18) The change to the 1996 date in subsection (j) was the principal change resulting from the negotiations that took place after the President's veto of the first measure. Therefore, the retention of the 1997 date in the definition of "emergency period" may have been an oversight.

The time frame of authority for sales under subsection (k) ["§318-related sales"] also is not clear. Within 45 days of enactment, the Secretary concerned was to act to award, release, and permit to be completed in fiscal years 1995 and 1996" the sales authorized by that section. Possibly this language means that the relevant Secretary must have taken all necessary actions to award or release such sales within the 45 day period, then allow them to be completed through fiscal year 1996. At one point, plaintiffs in Northwest Forest Resource Council v. Glickman, (19) moved to cite federal officials for contempt of court for not releasing subsection (k) sales within the 45 day period. The court did not take this action, but has directed the release of the sales, although issues continue as to which sales. See the discussion of subsection (k) later in this report.

Subsection (l) states that §2001 does not require or permit changing forest or resource management plans or standards and guidelines, etc. as a result of compliance with the section. It is not clear whether any aspects of this subsection affect actions after the 1996 expiration date. The subsection reads in part:

"Compliance with this section shall not require or permit any administrative action, including revisions, amendment, consultation, supplementation, or other action, in or for any land management plan, standard, guideline, policy, regional guide, or multiforest plan because of implementation or impacts, site-specific or cumulative, of activities authorized or required by this section...." except that the Secretaries may make changes to assist in meeting the salvage timber sale goal .... "No project decision shall be required to be halted or delayed by such documents or guidance, implementation, or impacts."

The subsection probably means that plans, etc. may not be amended as a result of compliance with §2001 during the time the section is effective, but plans, etc. could be amended thereafter. There is no evidence in the act itself or in the Conference Report that any more permanent effect was intended. If not, implementation of §2001 could necessitate amendment or revision of forest plans after the expiration of the section. This is especially so in the Pacific Northwest where flexibility and the range of lawful management alternatives has dwindled, (20) with the result that any actions taken that do not comport with the Option 9 Plan may force adjustments elsewhere in the relevant forests, if possible. Although the agencies have pledged in the August 9, 1995 MOA to proceed in accordance with the relevant laws, and those decisions are currently insulated from judicial review, they ultimately will be factored into forest management through future reviews of the continuing adequacy of the Option 9 general Plan and individual forest and resource management plans. In particular, implementation of subsection (k) may affect plans for the coastal forests because the extent and terms of some of the sales mandated under that subsection differ from those planned by the agencies.

The 3 principal types of logging addressed in §2001 are described in greater detail in the next parts of the report.

I. SALVAGE SALES.

As noted previously, the relevant agencies already had some authority to conduct salvage sales and to expedite some such sales before enactment of §2001. For example, the Forest Service can sell up to 1 million board feet of salvage timber without completing any NEPA documents as a "categorical exclusion" from the usual NEPA processes. Salvage sales can be funded from agency salvage funds. Nonetheless, Congress enacted §2001 in response to a perceived need to further expedite salvage sales. (21)

Subsection (a) defines a salvage timber sale as:

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

This definition is not limited to only dead or dying trees; live trees also may be cut as long as "an important reason" for entry "includes" logging salvage. And "associated" trees also may be taken as can trees that lack the characteristics of a "healthy ecosystem," as long as the sale includes an "identifiable salvage component." The breadth of the definition must be considered in the context of the breadth of discretion otherwise given the Secretaries.

Certain areas such as lands included in the National Wilderness Preservation System and those on which timber harvesting is prohibited by statute are excluded from the salvage sale authority. Some of the other exclusions may not be as extensive as they might appear; for example, the act excludes roadless areas that are recommended for wilderness designation in the most recent agency land management plans in effect as of the date of the enactment of the Act. Critics have asserted that the wilderness recommendations of both agencies are low and that, depending on the extent and permanance of road construction, it is possible that salvage operations could destroy the suitability of areas for wilderness consideration.

Subsection (b) directs that, notwithstanding any other law, the Secretary concerned shall use the expedited procedures set out in subsection (c) to prepare and award salvage timber sales "during the emergency period." The expedited procedures of subsection (c) include the preparation of only an Environmental Assessment (EA) under the National Environmental Policy Act (NEPA), rather than a more lengthy Environmental Impact Statement (EIS), and a biological evaluation under the Endangered Species Act (ESA). (Note, however, existing agency authority to eliminate all NEPA documentation under the categorical exclusions.)

Under subsection (i), whatever studies and planning documents a Secretary uses as a basis for salvage sales decisions are deemed to satisfy all environmental laws. The extent of documents analyzing environmental effects, including the effects on threatened or endangered species, is committed to the sole discretion of the Secretary to be executed as the Secretary considers "appropriate and feasible." Similarly, to the extent the Secretary considers appropriate and feasible, the Secretary may determine the consistency of the proposed sales with the current forest or resource management plan or any applicable standards and guidelines .

Reading the salvage-related provisions together, the Secretary concerned can be said to have very broad discretion to structure salvage sales, including timber that is not dead and dying; the Secretary determines the scope of environmental analyses; and the Secretary determines consistency with existing forest plans. These procedures and documentation are deemed to comply with all environmental laws.

Courts have noted the broad agency discretion under §2001, to determine what environmental information will be considered and whether proposed sales are consistent with applicable policies and forest or resource management plans. (22) Even if a salvage sale is inconsistent with agency and interagency policies and, but for §2001, the relevant forest plan would have to be amended, §2001(1) precludes such amendment. (23) This breadth of discretion to determine appropriate environmental analyses and consistency with existing policies and plans, combined with the pronouncement that all documents and procedures utilized satisfy existing law, results in a very narrow scope of judicial review such that no agency actions have yet been overturned, even though the circumstances have been such that, absent §2001, it is possible that they might have been found invalid. For example, a court twice upheld decisions of the Forest Service to proceed with salvage sales contrary to the strenuous advice of the National Marine Fisheries Service (NMFS), the Environmental Protection Agency (EPA); the FWS; and the Idaho Department of Fish and Game, finding that the agency was entitled to rely on the advice of its own experts and documents. (24)

A court also declined to consider a challenge to a concurring opinion by FWS on a salvage sale in grizzly bear habitat, stating that §2001 precluded substantive ESA arguments because §2001 commits the information to be considered and relied on to the sole discretion of the Secretary involved. (25)

In interpreting subsection (b), courts have often looked to its purpose of expediting the harvest of the backlog of dead and dying trees before they lose their economic value and to reduce the possibility of future, hotter fires in the damaged areas.

In Kentucky Heartwood, Inc., supra, the court stated that subsection (b) was not limited to salvage sales that were part of a "backlog" of such sales at the time of enactment or at the time of the April, 1995 committee report. This court also noted that the only time limitation on these sales related to the December 31, 1996 expiration of authority stated in subsection (j) and the requirement that sales be advertised, offered, and awarded within the emergency period ending on September 30, 1997. Reconciling the two dates was not an issue before the court.

The Kentucky court also noted that the sales were exempt from all federal environmental and natural resource laws, something Congress unquestionably has the power to do. The court said:

As Congress is the fountainhead for all environmental and natural resources laws, it clearly has the power to create blanket exemptions from those same laws. Although the wisdom of such exemptions might be debated, the authority to so exempt is incontrovertible. (26)

Salvage sales are not invalid because they cost more than the revenues they take in, even if revenues are a stated justification for the sale. (27)

Lastly, the court found that the relevant Secretary need not personally review each sale, but may delegate this duty. (28)

II. SUBSECTION (d) -- "Option 9-related" sales.

Subsection (d) is worded very broadly, and directs the Secretary concerned to expeditiously prepare, offer, and award "timber sale contracts on Federal lands described in the ..." Record of Decision for Option 9. These sales are to be conducted notwithstanding any other law (including a law under the authority of which any judicial order may be outstanding on or after the date of enactment of this Act) ...."

Reading the provision so that the language beginning with "described in" modifies "lands", the language offers no guidance or limitation as to what sales are to be awarded -- it merely directs sales on the federal lands covered by Option 9. Yet the section has been spoken of as though it addresses sales in compliance with Option 9 and the agencies appear to intend to apply it in this way in light of the pledge in the August, 1995 MOA to comply with all laws. This may be a reasonable interpretation of the subsection's broad language and is the reading that results from viewing the language "described in" as modifying "sales." The question is somewhat moot in light of the expressed intent of the agencies to comply with the current laws and plans, but it is interesting to note in light of the courts' interpretation of similar syntax in subsection (k).

The remainder of subsection (d) attempts to expedite agency approval of a special rule under section 4(d) of the ESA that would address Old Growth Related Species and activities on private lands. This aspect of subsection (d) has not yet been litigated.

There appears to have been only one case interpreting subsection (d) (29) and in that case, plaintiffs raised several technical challenges based on the wording of the subsection. Plaintiffs argued that the subsection relates to the "offering and awarding" of timber sales on Option 9 lands, thereby allowing challenges to the "operation" of sales. However, the court held that the suit actually was a challenge to the administrative decision to offer the sales, rather than to the operation of them and hence the court could not hear the challenge because of the restrictions on review. The court further noted that even if the challenge was directly related to the operation of the sales, rather than to the preparation, offer, or award of the sales, allowing the suit would frustrate the Congressional intent of facilitating harvests.

Plaintiffs also argued that subsection (i) pronounces only that documents and procedures required by the law satisfy all environmental laws, but does not impose any such "requirements" on Option 9 sales, thereby leaving such sales open to challenge. The court again disagreed, finding that this interpretation would obstruct the law's directive to award sales "notwithstanding any other law." The court concluded that all environmental challenges are suspended, and that even the APA does not provide relief because that statute is merely a vehicle for carrying substantive challenges to court, and under §2001, there is no subject matter reviewable under the APA.

III. SUBSECTION (k) -- "§318-related" sales.

In 1989, Congress enacted §318 of the 1990 Interior Appropriations Act, Pub. L. No. 101-121, 103 Stat. 745 (1989), that directed the release of certain timber sales in the Pacific Northwest forests that are habitat for the northern spotted owl. The sales were insulated from judicial review under the laws that were involved in certain specified court cases; the Endangered Species Act (ESA) was not among these. Subsequently, some sales were held up because marbled murrelets (a seabird listed as threatened under the ESA that comes ashore to nest in coastal old growth) were present in or near sale units. Also, some sales -- both in coastal and inland areas -- were enjoined as not in compliance with §318 itself or as otherwise violative of the laws, despite the limited scope of judicial review under that law.

Section 2001(k)(1) directs "notwithstanding any other provision of law," the "award and release of timber sale contracts offered or awarded before that date [the date of enactment] in any unit of the National Forest System or district of the Bureau of Land management subject to section 318 of Public Law 101-121 (103 State. 745)...." This language generated several issues that have been litigated.

First, it has been held that the language beginning "subject to section 318" applies to "any unit", not to "timber sale contracts", with the result that subsection (k) directs timber sales throughout the geographical area covered by §318. (30) The court looked to the language of the act and to certain of the legislative history and concluded that the meaning was clear. As a result, the agencies' interpretation was not given the weight it otherwise might receive. The court noted that the agencies' interpretation violated several rules of statutory construction and necessitated concluding that Congress had silently adopted a position it had previously rejected. Although the court recognized that a letter by several Members of Congress to the relevant Secretaries sent the day of enactment was not a part of the legislative history, it noted that the letter expressed the "contemporaneous views of six of the most influential members of Congress involved in the passage of the bill."

Plaintiffs moved to find the federal defendants in contempt of court for not releasing sales within the 45 days directed in subsection (k), and specifically asked that two federal officials be imprisoned for that failure. The court declined to do this, but has directed the release of various types of sales.

After the ruling on the geographical scope of the subsection, it still was not clear which sales were intended to be released. In a continuation of the NFRC case, the court clarified the status of twenty three timber sales that fell into four categories: 1) one sale offered before §318 was enacted; 2) eleven sales canceled before enactment of §2001 because of legal challenges; 3) eight sales canceled because of the high bidder's inability or unwillingness to proceed with the sale; and 4) three "remarked" sales.

The court held that the sale offered before enactment of §318 was not included within the scope of §2001. Here the court found that enactment of §318 did impose a temporal limitation such that only sales offered after enactment of that section must be released, rather that releasing all sales ever offered in the geographical area covered by §318. The government identified thirty nine other sales that were offered before enactment of §318.

Some sales had previously been canceled in judicial proceedings, either because they did not comply with §318 or with NEPA, or for other reasons. The court directed that these sales be released because they had at one time been "offered" and therefore were within subsection (k).

As to sales that had been dropped because the high bidder was not qualified to proceed or had declined to do so, the court required the release of these sales to other qualified bidders -- despite inconsistent agency regulations -- at the terms originally agreed to by the unqualified bidders.

The court did not require the release of sales that had been remarked and which could no longer be reconstituted on the ground -- i.e. sales that were impossible to identify and reoffer.

This ruling functioned as a declaratory judgment on which further relief could be granted in courts that had enjoined or otherwise previously ruled on sales. Proceedings are in progress in those courts. The federal defendants have appealed the ruling with respect to seeking additional bidders; the defendant-intervenors have appealed all but the first part of the ruling.

Subsection (k)(2) provides an exception for sales if "any threatened or endangered bird species is known to be nesting within the acreage that is the subject of the sale unit." Subsection (k)(3) provides for substitute timber of equal volume and "like kind and value, which shall be subject to the terms of the original contract and shall not count against current allowable sale quantities." Providing substitute timber may be difficult because coastal old growth is scarce. It remains to be seen if timber of "like kind and value" can be found in the coastal areas that complies with Option 9; or, if not, whether such timber from other areas might be substituted, and what the effects of altering the implementation of Option 9 will be.

The first Rescissions bill, H.R. 1158, as introduced, contained the salvage rider, including subsection (k), but did not contain the "known to be nesting" exception. On March 30, 1995, Sen. Gorton proposed an amendment that added the exception. Sen Murray introduced an alternative amendment that would have directed provision of replacement timber for all timber sales that could not be carried out due to requirements for the protection of the marbled murrelet. (141 Cong. Rec. S4870 (daily ed. Mar. 30, 1995.)) The Senate rejected the Murray amendment (S4882) and approved the Gorton amendment, which was also accepted at conference.

After the President vetoed the first Rescissions bill, the timber language was added to H.R. 1944, the Rescissions Act that was ultimately enacted. Although some provisions of §2001 were renegotiated between Congress and the President, the language of subsection (k)(2) remained the same.

The agencies asserted that because the marbled murrelet comes ashore only to nest, and does not build nests in the usual sense, but rather deposits eggs on branches of old growth trees, "known to be nesting" should be determined by applying the Pacific Seabird Group Protocol that had been used for years to determine the presence of the birds, with a presumption that if they were ashore, they were nesting.

However, the court declined to apply the Protocol, noting (31) that the Protocol recognized several levels of murrelet presence from "occupied stands" to "nest stands." The court found that subsection (k) required that: 1) the nesting be current and 2) within the sale unit, and that 3) the nesting determination must be based on some evidence beyond mere occupancy. The court left some discretion to the agencies on how to demonstrate the first and third of these elements. Determination of current nesting might include a murrelet survey conducted one or more years in the past. Such surveys might be sufficient to establish current nesting upon an adequate showing of site fidelity with respect to specific sales. Adequate evidence of nesting would include direct evidence such as egg shells, fecal rings, or an active nest, but might also include other evidence such as visual or auditory observation of a murrelet located subcanopy within sale unit boundaries engaging in behavior the agency finds sufficiently indicative of nesting to establish a "known" nesting site within that unit.

This ruling has been appealed by both the government defendants and the defendant-intervenors, and has been stayed for 60 days. These issues have been consolidated with the January 10th ruling for consideration by the 9th Circuit. The FWS had previously found 57 §318 sales would jeopardize the continued existence of the marbled murrelet; if this "known nesting" standard is upheld, it is not known exactly how the agencies will interpret and apply it, how many sales will ultimately be released and what the impact on plans to conserve the marbled murrelet and other species will be. Because the sales are to be on the terms on which they were previously offered, which is to say on terms that predate current limitations to prevent sedimentation in streams and other environmental constraints, the actual logging may also have adverse impacts on salmon and other anadromous fish in the areas.

CONCLUSION

Section 2001 goes beyond mere procedural expediting of salvage sales. The law provides for three types of timber sales and insulates agency decisions from virtually all substantive review for compliance with current laws during the life of the section.

The section does not require compliance with current laws; neither does it mandate general violation of those laws. However, agency decisions and actions have been held to be virtually insulated from judicial review while the section is law. The President has directed compliance with existing law, except as prohibited by §2001 and the relevant agencies have executed an MOA to that effect.

Although judicial review is extremely limited under §2001, the effects of agency decisions and actions under that section will probably ultimately be considered by the courts indirectly in future challenges to the continuing adequacy of forest and resource management plans after §2001 expires. This is likely to be especially true with respect to the forests in the Pacific Northwest where subsection (k) directs the release of some sales that have been held to be unlawful, and the release of some sales on terms that may not be consistent with the ESA or with current forest plans and management guidelines. The extent of the impacts of such sales is not yet clear, pending agency and judicial interpretation of the "known to be nesting" criteria, but because low-elevation, coastal old growth is scarce, these sales may be biologically significant. If so, the sales may affect plans for the conservation of the marbled murrelet and possibly other species, such as salmon and other anadromous fish, and may reduce future agency management flexibility.

Therefore, implementation of §2001 could increase logging in the short-term, but result in new delays due to the necessity to amend or revise current plans to make adjustments for actions taken under this rider, and possibly to renewed difficulties in implementing the forest management laws and the Endangered Species Act.

Endnotes

1. Summaries of the cases will be made available upon request.
2. National Environmental Policy Act; Revised Policy and Procedures. Notice of adoption of final policy, 57 Fed. Reg. 43180, September 18, 1992. Chapter 30, Forest Service Manual.
3. H.R. Rep. 124, 104th Cong., 1st Sess., 134-135 (1995).
4. See, Ross Gorte, "Salvage Timber Sales and Forest Health," CRS Report for Congress 95-364, July 11, 1995.
5. Seattle Audubon Society v. Evans, 771 F. Supp. 1081, 1089-1090 (W.D. Wash. 1991).
6. See, Ross Gorte, CRS Report to Congress 93-664, "President Clinton's Forest Plan for the Pacific Northwest, July 15, 1993.
7. Seattle Audubon Society v. Lyons, 871 F. Supp. 1291 (W.D. Wash. 1994). This case is on appeal to the 9th Circuit.
8. H.R. Rep 124, 104th Cong., 1st Sess. 137 (1995).
9. 871 F. Supp. at 1321.
10. Presidential Memorandum to the Secretaries of the Interior, Agriculture and Commerce and to the Administrator of the Environmental Protection Agency, August 1, 1995.
11. See, "Forest Ecosystem Management: An Ecological, Economic, and Social Assessment -- Report of the Forest Ecosystem Management Assessment Team" (the "FEMAT" report), Table IV-5, which indicates that the low-elevation, old growth used by the marbled murrelet for nesting is only 472,264 acres or 6% of the total of large, coniferous old growth. The distribution of those 6% areas relative to the coast and to the distribution of marbled murrelets is not known, but it seems likely that less than the 6% would be available as suitable nesting habitat. See, T.E.Hammer and S.K. Nelson, "Characteristics of Marbled Murrelet Nest Trees and Nesting Stands," (Ecology and Conservation of the Marbled Murrelet, USDA Forest Service Gen. Tech. Rep. PSW-152, 1995).
12. H.R. Rep. 71, 104th Cong., 1st Sess., 1995; Conference Report: H.R. Rep. 124, 104th Cong, 1st Sess. (1995).
13. H.R. Rep. 124, supra, at 136.
14. See, Idaho Conservation League et al v. Thomas et al, CV 95-0425-S-EJL, (D. Id. 1995) (Memorandum decision); Idaho Sporting Congress, Inc. v. U.S. Forest Service et al, CV-95-0419-S-EJL (D. Id. January 8, 1996).
15. The court in Inland Empire Public Lands Council v. Glickman, Civ. No. 95-133-M-CCL, (D. Mt. December 18, 1995), declined to answer this question because it found the agency's action valid under either standard.
16. Idaho Conservation League, supra, note 14, slip op. at 13; Idaho Sporting Congress, supra, note 14, slip op. at 7.
17. Kentucky Heartwood, Inc., et al v. United States Forest Service, et al., Civ. No. 95-225 (E.D. Ky. November 27, 1995) (Memorandum decision).
18. See, H.R. Rep 124, 104th Cong., 1st Sess., the Conference Report on the first Rescissions Act, which shows that the dates in both the definition of emergency period and subsection (j) at that time were September 30, 1997.
19. 1995 U.S. Dist. LEXIS 13300, Civ. No. 95-6244-HO (D.Or. 1995).
20. See, the 1994 Final EIS and "Alternatives for Management of Late-Successional Forests of the Pacific Northwest:" A Report to the Agriculture Committee and the Merchant Marine and Fisheries Committee of the U.S. House of Representatives by the Scientific Panel on Late-Successional Forest Ecosystems, October 8, 1991.
21. H.R. Rep. 124, supra, at 134-135.
22. See, e.g. Inland Empire Public Lands Council, supra, note 15.
23. See, Idaho Conservation League, supra, note 14.
24. Idaho Conservation League, supra, note 14; Idaho Sporting Congress, supra, note 14.
25. Inland Empire Public Lands Council, supra, note 15, slip op. at 16.
26. Kentucky Heartwood, Inc., supra, note 17, slip op. at 14.
27. Idaho Conservation League, supra, note 14, slip op. at 22-25.
28. Id., slip op. at 25-28; Inland Empire Public Lands Council supra, note 15, slip op. at 14-15.
29. Oregon Natural Resources Council and Umpqua Watersheds, Inc. v. Thomas et al, No. 95-6272-HP. 1995 U.S. Dist. LEXIS 19567 (D. Or. December 4, 1995).
30. Northwest Forest Resources Council v. Glickman, 1995 U.S. Dist. LEXIS 13300, Civ. No. 95-6244-HO (D. Or. Decided September 8, 1995, filed September 13, 1995, orders issued October 17, 1995.).
31. 31. Ibid., January 19, 1996.