The Salvage Timber Sale Rider:
Overview and Policy Issues

Ross W. Gofte
Specialist in Natural Resources Policy
Environment and Natural Resources Policy Division

Updated June 24, 1996

96-569 ENR

The Emergency Salvage Timber Sale Program

The salvage timber rider is actually the Emergency Salvage Timber Sale Program, enacted as §2001 of P.L. 104-19, the 1995 Emergency Supplemental Appropriations and Rescissions Act on July 27, 1995.(1) As enacted, the Emergency Program expires on December 31, 1996; after that date, new sales cannot use the procedures and protections of the Program, but existing contracts can be completed. The Program includes three groups of sales:

• §2001(b), salvage timber sales, to remove trees that are dead, dying, or threatened by wildfire, insects, diseases, and other natural disasters;

• §2001(d), sales on lands covered by Option 9, President Clinton's forest plan for the Pacific Northwest intended to resolve the lengthy injunction and litigation over spotted owl and old-growth forest protection; (2) and

• §2001(k), sales on lands covered by "§318'-- old-growth sale contracts in the Pacific Northwest that were sold under §318 of the FY1990 Department of the Interior and Related Agencies Appropriations Act (P.L. 101-121) without regard to spotted owl habitat, but some of which were later halted to protect marbled murrelets (sea birds that nest in old-growth trees, listed as a threatened species under the Endangered Species Act (ESA) in 1992) and for other environmental reasons.

The Emergency Program, under §2001(c)(1), also established expedited sale procedures for the salvage and Option 9 sales. (The §318 contracts were previously sold, and expedited sale procedures were, therefore, irrelevant.) These procedures have increased Forest Service and BLM discretion in determining when, where, and how much timber to sell by: (a) specifying the required documentation and processes under the National Environmental Policy Act (NEPA) and the ESA; 0,) granting to each Secretary sole discretion in determining appropriate and feasible analysis of environmental effects and effects on ESA-listed species; and (c) allowing the use of existing documents.

Finally, the Emergency Program limited review of all three groups of sales. Under §2001(e), decisions on salvage and Option 9 sales are exempt from the administrative review and appeals processes. Judicial challenges are also severely constrained. Under §2001(f), challenges must be filed in the U.S district court where the affected Federal lands are located, within 15 days of the initial advertisement of the sale. Courts are directed to generally render final decisions within 45 days, and are prohibited from granting restraining orders, preliminary injunctions, or injunctions pending appeal. Furthermore, under §2001(i), documents, procedures, and operations of salvage and Option 9 sales are stated as meeting the requirements of NEPA, ESA, the Multiple-Use Sustained-Yield Act, the Forest and Rangeland Renewable Resources Planning Act, the National Forest Management Act, the Federal Land Policy and Management Act, "any compact, executive agreement, convention, treaty, and international agreement," and "all other applicable Federal environmental and natural resource laws." Finally, the §318 contracts were directed to be awarded and released "notwithstanding any other provision of law." Thus, most lawsuits to halt timber sales under the Emergency Program are essentially precluded.(3)

Viewpoints on the Rider

Sales in the Pacific Northwest -- Option 9 and §318 Sales. Opponents of the Emergency Salvage Program object vigorously to the entire rider, and especially to the harvest of the §318 contracts. They first argue that Option 9 and §318 sales are green, old-growth timber that have nothing to do with salvage, and should not have been included in a salvage program. More fundamentally, they object to the cutting of old-growth stands, especially the §318 sales, at least some of which are said to be ecologically valuable and possibly irreplaceable (certainly irreplaceable in our lifetimes). Further, they assert that protecting many of these old-growth stands was part of the baseline for President Clinton's forest plan for the Pacific Northwest, and that cutting them may invalidate the plan; it seems likely that, when the restriction on litigation ends, environmentalists will sue the agencies, arguing that the plan no longer provides adequate protection for spotted owls, marbled murrelets, and other species. Finally, they object to agency discretion to ignore environmental and natural resource statutes, with no opportunity for the public to register their complaints or to influence the decisions through administrative and judicial challenges.

Proponents of cutting the §318 sales argue that the slow implementation of the President's forest plan was causing a short-term timber supply crisis for sawmills that depend on federal timber. They charge that the Administration promised full implementation of the plan (proposed in July 1993) by FY1995, or by FY1996 at the latest, but that the PY1996 budget requests still showed less than full implementation of the 1.1 billion board feet of timber targeted in the plan. They argue that cutting the §318 contracts would provide some federal timber while the Administration was working toward full implementation. Furthermore, they assert that stopping the sales to protect marbled murrelets is unnecessary, because the bird is not really threatened, that the species is relatively abundant in Canada and southeast Alaska. Finally, they believe that restrictions on administrative and judicial challenges are necessary, because groups who oppose all timber harvesting have used such opportunities to delay actions and harass agency officials engaged in lawful activities, and the delays are especially a problem in a short-term supply crisis.

Salvage Sales, Under §2001(b). Opponents of salvage sales under the Emergency Program also object to agency discretion to ignore environmental and natural resources laws, with no public accountability for the environmental consequences of their actions. This is allegedly compounded with salvage sales, because the definition of salvage in the Forest Service Manual only requires that removing dead, dying, or threatened trees be one reason for the timber sale; because all timber stands contain some such trees, they argue that any timber sale could be designated as a salvage sale, and point to several green (non-salvage) sales that had been successfully challenged but were reoffered as salvage sales after the Program was enacted. The salvage opponents also point out that the ecological value of dead and dying trees is largely unknown, and that dead and dying trees may be critical for maintaining endemic levels of native pests and pathogens that are essential to sustainable ecosystems (e.g., insects that lay eggs in streams that feed native fish, or cankers (mushrooms growing on dead trees) that feed small mammals that are in turn eaten by carnivores). Finally, opponents of salvage sales argue that salvage sales actually increase the risk and severity of wildfires by putting more small- and medium-sized fuels on or near the ground, and that the environmental damages resulting from timber cutting and associated road construction far outweigh any possible forest health benefits.

Proponents of the Emergency Salvage Program assert that rapid action is necessary to maximize timber values, since timber quality deteriorates after the trees die, and restrictions on administrative and judicial challenges are needed to expedite salvage sales. They argue that salvage sales improve forest health by removing large fuels (thus reducing the risk and severity of wildfires) and by containing insect and disease infestations. They also charge that the Administration was being unresponsive to the problem, as demonstrated by the smaller salvage sale program proposed in the FY1996 budget request (prepared in late 1994, after the severe wildfires) than had been proposed in FY1995, and the Western Forest Health Initiative, (4) which was asserted to be simply a package of existing projects, and not a new program to really address forest health problems. Thus, the proponents felt something was needed to force the Administration to respond to what they argue is a forest health crisis.

Salvage Sales and Forest Health

Many forests of the intermountain West are dominated by Ponderosa, Western white, or lodgepole pine. The pine ecosystems, and mixed conifer ecosystems of which pine is a major component, are widely considered to be in unnatural and unhealthy conditions, increasing the risks of insect and disease epidemics and of catastrophic fires. These conditions have been caused by: (1) overgrazing in the late 1800s that reduced vegetative competition; (2) logging (both before and since the national forests were established) that emphasized cutting the big pines; and (3) more than 75 years of effective fire suppression that has virtually eliminated the natural cycle of fires that burned some fuel frequently but at low intensity. The drought that began in the early 1980s has contributed to the current problems.(5)

However, the seriousness of the forest health problem is still subject to debate. Anecdotal evidence shows several unhealthy forest conditions: excessive sawtimber mortality; a shift toward drought-susceptible Douglas-fir and true firs in mixed conifer stands; overstocked stands of small, often unmerchantable trees; and excessive fuel loads. Timber inventories of the national forests do not show these problems, but (1) the data are incomplete for assessing forest health, because they do not include information on trees that are not yet merchantable or on fuel loads; (2) the data do not distinguish among ecological types, and thus might not show a species shift in mixed conifer stands; and (3) the inventory and data publishing cycle is slow, such that developing problems might not be shown in the published data.

Salvage timber sales can be a useful tool for addressing excessive, or the threat of excessive, sawtimber mortality. The feasibility of salvage depends largely on the value of the dead or dying tree species and the rate at which the wood deteriorates. Similarly, if drought causes excessive mortality in mixed conifer stands, salvage sales can be used both to remove the dead and dying trees and to help assure that reforestation reflects the appropriate species mix. However, critics of the salvage sale program argue that using timber sales to repair forest health problems is akin to "sending the fox to guard the henhouse," since inappropriate logging is one of the causes of the forest health problems (especially in mixed conifer stands) and that precluding review prevents checks on agency mistakes or possible excessive cutting.

For the other forest health problems, salvage sales seem unlikely to provide much improvement. Improving health in overstocked stands requires thinning-- precommercial thinning, if the trees are too small to be merchantable, or commercial thinning. Salvage would not apply to such stands, because the trees are not dead or dying; indeed, the problem is that competition alone is insufficient to kill some quite hardy species, such as Ponderosa pine and lodgepole pine, and stand growth stagnates while killing few individual trees. Similarly, improving health in stands with excessive fuels requires fuel treatment -- typically prescribed burning or mechanical treatments (e.g., crushing or removing the wood). Since salvage sales remove only merchantable wood, they can do little to reduce fuels. Salvage sales might even increase fuel loads in the short run, because the merchantable stems are removed, while more small and medium fuels (needles, twigs, and limbs) are left on or near the ground. Thus, salvage sales may be probably ineffective for improving forest health in overstocked stands and stands with excessive fuel loads.

Related Legislation

Several bills would repeal and alter the existing Emergency Salvage Program. Repeal would certainly halt new sales under the Program, and might require termination (with compensation for contract holders) of sales instituted under the Program (including the §318 contracts). To facilitate understanding of the legislation, the bills are presented in order of complexity (beginning with the simplest bill); the bills are identified by their principal sponsor, because that is how they are generally recognized. The last bill discussed, Senator Craig's forest health bill, would supplant the Emergency Program, rather than repeal it, with a broader-focus program.

The Furse Bill, H.R. 2745. This bill would repeal the Emergency Salvage Program. It would suspend all activities under the Program, except those activities that would have occurred regardless of the Emergency Program. Suspended activities would be reviewed, and would be allowed to continue if found or modified to be in compliance with environmental laws. The bill is silent on treatment of terminated activities and contracts.

The Bradley Bill, S. 1595. This bill closely follows the Furse bill, repealing the Emergency Program, and suspending and reviewing activities. In addition, this bill would require several forest health studies: on the nature and extent of the forest health problem, by Forest Service Research; on the ecological efficacy of activities, by the National Academy of Sciences; on the fiscal and economic efficacy of activities, by the General Accounting Office; and on improving the efficacy of activities, by the Chief of the Forest Service.

The Condit Bill, unnumbered. (6) This bill also begins by closely following the Furse bill -- repealing the Emergency Program, and suspending and reviewing activities. This bill would also establish new procedures for salvage sales, including:

· shorter public comment periods under NEPA;
· shorter periods for administrative appeals;
· filing period and location limits for judicial challenges, and court decisions within a specified period;
· areas in which the expedited procedures would not apply, including inventoried roadless areas, late successional or riparian reserves under Option 9, environmentally sensitive areas, and areas that contain habitat critical to endangered or threatened species; and
· a definition that salvage sales must be at least 70% dead and dying trees.

The Murray Bill, S. l59O. (7) This bill would repeal the Emergency Program, and suspend the §318 sales, while allowing the completion of other contracts; in contrast to the preceding bills, this bill provides guidance on compensation for contracts that are terminated. The bill would also direct the expeditious offering of Option 9 timber sales, and would establish expedited procedures for salvage sales, including:

· shorter periods for consultation in compliance with ESA;
· open interdisciplinary team meetings for salvage sale planning, prior to a formal salvage sale proposal;
· exemption from the Federal Advisory Committee Act (FACA);
· shorter periods for administrative appeals;
· shorter periods for judicial challenges, and encouragement for expeditious court decisions;
· areas in which the expedited procedures would not apply, including designated wilderness and other statutorily withdrawn areas, and areas where timber harvesting is precluded by agency land management plans or by agency standards and guidelines; and
· a definition for salvage sales that appears narrower than the current definition, but is still imprecise (i.e., with no quantified standards).

In addition, the bill would establish a pilot program to test the feasibility of harvest contracts for salvaging timber, with a site-treatment contract (instead of a timber cutting contract) and independent sale of the logs removed. Finally, the bill would require a review of forest health to establish priorities for areas to be addressed and activities to be used.

The Craig Bill, 5. 391. (8) This Federal Lands Forest Health Protection and Restoration Act would supplant the Emergency Program after it expires. The bill would direct the designation of emergency and high-risk areas, with apparently concurrent selection of forest health activities, while exempting areas where timber harvesting is precluded by law or by management plan. The bill would also establish expedited procedures for salvage sales and other forest health activities, including:

· a short comment period for area designation/activity selection decisions;
· a maximum period for preparing NEPA documents;
· categorical exclusions from NEPA, but without the exceptions for extraordinary circumstances identified in the Forest Service handbook;
· initial determination of ESA impacts by agencies proposing activities;
· shorter periods for administrative appeals of high-risk decisions, and no appeals of emergency decisions; and
· filing period and location limits for judicial challenges, and encouragement for prompt court decisions.

The bill would also require extensive annual and periodic reporting, and would expand the potential uses of the Forest Service and BLM special salvage sale accounts, while establishing a new special funding mechanism (forest health credits).

Endnotes

1. The primary purposes of this Act were to provide additional disaster assistance for the recovery from the Oklahoma City bombing and to expand anti-terrorism initiatives.

2. For more information on this plan, see CRS Report 93-664 ENR, President Clinton's Forest Plan for the Pacific Northwest.

3. For a more thorough discussion of the Emergency Program and the related litigation, see CRS Report 96-163 A The "Timber Rider": Section 2001 of the Rescissions Act.

4. U.S. Dept. of Agriculture, Forest Service. Western Forest Health Initiative. Washington, DC: Oct.31, 1994.

5. For more information, see CR8 Report 95-364 ENR, Salvage Timber Sales and Forest Health, updated June 7,1996. See also CRS Reports 95-548 ENR, Forest Health: Overview and 95-511 ENR, Forest Fires and Forest Health.

6. The Condit bill has not been, and is not expected to be, introduced by Mr. Condit. However, it has been widely distributed, and the office has allowed its inclusion here.

7. This bill was also offered as SP 3493, an amendment to the FY1996 Omnibus Appropriations Act, but was defeated 42-54 in Record Vote No.33.

8. The description here is of the 3/11/96 substitute version circulated by the Senate Energy and Natural Resources Committee staff for markup at the Committee business meeting on March 29. That and several subsequent markups were postponed to allow for negotiations to develop a bipartisan substitute. Despite lacking bipartisan support, the bill was amended and ordered reported on June 19. Negotiations are expected to continue to develop a bipartisan substitute to be used either as a floor amendment in the nature of substitute or for an original bill to be reported by the Committee.