Logging Without Laws:

How the Timber Rider Passed Congress or:

The more things change the more they stay the same.


From the Environmental Review Newsletter
Volume Three Number Nine: September 1996


Introduction:

 The timber salvage rider was attached to the Oklahoma bombing relief legislation that was passed by Congress in 1995. The salvage rider is part of a continuing campaign by some members of the timber industry to minimize environmental restraints to logging on public forests. Between 1984 and 1989, Congress passed nine separate laws setting aside challenges to specific Forest Service or Bureau of Land Management timber sales. The timber salvage rider applies not only to dead and dying trees but also about sixty old-growth timber sales in Washington and Oregon that were being held up because of their potential to harm the nesting habitat of the marbled murrelet, an endangered species.

     We spoke with Kevin Kirchner about the passage of the timber salvage rider and its effects on our public forests. Mr.Kirchner is vice-president for policy, legislation and communications at the Sierra Club Legal Defense Fund. He earned a B.A. in political science in 1977 from Oakland University and his law degree in 1981 from the University of Oregon Law School. He has worked on Capitol Hill as an environmental policy advisor to New Jersey Governor Thomas Keen, as a staff assistant on the House Agriculture Committee; and as forestry counsel to the House Interior and Insular Affairs' forests subcommittee.

ER: Mr. Kirchner, where did the 1995 logging rider originate?

KK: The logging rider originated in the House Appropriations Committee where it was sponsored by Norm Dicks(D-WA) and Charlie Taylor(R-NC). The timber industry circulated it and tried to get it enacted the prior year as a rider to the Interior Appropriation Bill for fiscal 1995 but they were unsuccessful - that was when the Democrats were in control. After the election they came right back with virtually identical language and rammed it through. Congressman Dicks has said at various times that he was not a party to the salvage rider but there are many letters in the Congressional Record from timber industry representatives that refer to the rider consistently as the Dicks/Taylor language. Congressman Dicks later backed off on the old-growth provision when it got politically hot, but he publicly urged the rider, and opposed Congressman Sid Yates' effort on the House floor in March 1995 to strip the rider language out.

     Slade Gorton (R-WA) was the prime sponsor of the salvage rider on the senate side. He wrote a letter to his colleagues in mid-March saying he was going to put some timber language into the bill before it went to the appropriations subcommittee that he chairs, and he laid out the three provisions: one, the salvage language; two, the section 318 language in which he referred to the particular group of old-growth sales held up by murrelet consultation; and three, some language to try to let the government do whatever they wanted under Option Nine - the President's northwest forest plan.

ER: Which would upset President Clinton's effort to negotiate a compromise.

KK: Whether you liked Option Nine or not, Senator Gorton's language attempted to say, Notwithstanding Option Nine, go ahead and log wherever and however you want in Washington and Oregon. It did not mandate that the agencies violate Option Nine, just like it does not mandate that they violate the law in doing salvage sales, it just tried to say that if the agencies do violate the law, citizens cannot go to court to make them comply.

ER: Is the timber industry behind this law?

KK: This is a timber industry initiated effort. It is no secret that for years this has been a holy grail for the timber industry: to get environmental laws suspended on national forests. They were successful repeatedly in the 1980s: Between 1984 and 1989, environmental laws were either limited or eliminated for national forests in the Pacific Northwest nine different times. Sometimes it was focussed on a particular forest or a particular BLM district. Then, of course, there were the more sweeping suspensions that were included in the infamous section 318.

ER: What about section 318?

KK:     Section 318 of the fiscal year 1990 Interior Appropriations Act, which was adopted in October 1989, was sponsored by Senators Mark Hatfield and Brock Adams. It was initially called the Hatfield/Adams rider, but it was later dubbed by Oregon Natural Resources Council director Andy Kerr, the rider from hell. Section 318 was also sponsored and promoted by Representative Les AuCoin from Oregon. Section 318 was a direct response to two lawsuits in the Northwest that had challenged the cutting of old-growth in western Oregon and western Washington. One lawsuit was against the Forest Service; one was against the Bureau of Land Management. In early 1989 two courts - Judge William Dwyer's in Washington and Judge Helen Frye's in Oregon - issued preliminary injunctions. Judge Dwyer issued a preliminary injunction in March 1989 and set an expedited briefing schedule so there would be some resolution of the case by mid-June. The Dwyer injunction applied to a particular set of about 140 timber sales. The Forest Service went back in to Judge Dwyer and asked him to postpone the expedited hearing and promised to give the court an interim plan for protecting old-growth forests. They asked the Judge to expand the injunction so it was not just the 140 sales, but any sales that might go forward in all spotted owl habitat greater than forty acres. Judge Dwyer agreed to their request but the Forest Service never delivered the promised report for protecting old-growth. Instead they went to Congress and Senators Hatfield, Adams, and AuCoin came up with section 318, which overturned the two preliminary injunctions and suspended the underlying laws: the National Forestry Management Act (NFMA), the National Environmental Policy Act (NEPA), the the Federal Land Policy and Management Act (FLPMA) and also the Migratory Bird Treaty Act. The senators' amendment said citizens could not challenge violations of any of those laws; it also ordered the Forest Service and BLM to offer a fixed volume of timber in Washington and Oregon during that year, about 9.6 billion board feet.

ER: So 318 was not a salvage rider?

KK: It was not about salvage, it was about old-growth forests. Section 318's intent was plain and simple: Overturn the court rulings, require the Forest Service to sell a fixed volume of old-growth, and suspend the environmental laws. It did not matter if the timber sales were legal or illegal, the agencies were told to sell them.  Now, 318 suspended NFMA, NEPA,FLPMA, but it expressly said that Endangered Species Act (ESA) still applied to those sales. That was the one bone they threw to Congressman Studds (D-MA) who had jurisdiction over the ESA.

     This is where the logging rider comes in, and the old-growth sales that were forced out under it. Under sub-section k of the logging rider, roughly sixty timber sales that were originally awarded under section 318 have not been completed because they might harm the marbled murrelet, a seabird threatened with extinction. Those timber sales have not gone forward because they provide nesting habitat for the murrelet. This is what led to Congressman Dicks and Senator Gorton proposing legislation that says that those timber sales go forward, notwithstanding any other provision of law.

ER: The '95 logging rider was sold as a forest health issue. The sponsors said they just wanted fire-killed trees.

KK: That's what they said, but the timber industry and Senator Gorton collaborated on the logging rider to include the old-growth language and gave it an enormously expanded interpretation. Whenever Senator Gorton was writing to his colleagues about the logging rider, he referred to the specific section 318 sales that were held up because they might harm threatened species. But after the rider was passed he claimed the rider applies not just to those section 318 sales, but to every sale ever offered but not logged in Washington and Oregon. For example, if you had a timber sale that was put out for bid and nobody bid on it, or if you had a timber sale put out for bid and somebody made a bid on it, but then there was an appeal and the Forest Service cancelled it, or if a timber company bought a sale and went bankrupt before they logged it, all those kinds of sales Senator Gorton argued would have to go forward and be logged under by his rider. In fact, he even orchestrated a letter insisting that the old-growth provision of the rider applied to all timber sales in the region. But he never said that to his colleagures during debate on the Senate floor; to them, he said it only applied to the handful of specific 318 sales.

ER: Who wrote the rider?

KK: I can only tell you that I was given language six months prior to the time when this rider surfaced, which contained virtually identical language to the old-growth provision of the logging rider. When it was given to me, I was told that the timber industry was circulating this language among the Northwest Congressional delegation and others to try to get it attached as a rider to the fiscal year Interior Spending Bill. There is no question that representatives of the timber industry had a role in promoting this rider. That is no secret.

ER: Is it normal procedure on the Hill for lobbyists to be involved in the writing of law?

KK: Yes. That is what lobbying is all about, for better or for worse. You as a citizen have as much ability to draft a bill, come to Washington, talk to your Senator or House member and say, Look I think this is important and you should do it. You may not have much backing, but if you happen to be representing a 5,000 member citizen group in a particular state, now you have got something behind you. So whether it is environmental groups, whether it is labor or religious groups, business groups, the chamber of commerce, a particular industry or an umbrella group of many industries working together, they all are going to be trying to push their own legislation. That is at a certain level, the democratic process.

     But I think it is important to make a distinction between the kinds causes that people are advocating. I believe there is a fundamental distinction between people who are advocating legislation from which they will benefit economically and people who are advocating legislation that has a broader public interest. There is a big difference between public interest groups like us and special interest groups like the timber industry. You can take that distinction to the next level when you talk about campaign contributions and the relative inability of most segments of our society to buy the access to members of Congress that a relatively small segment of society has the ability to do. Of course that gets into a separate issue of campaign finance reform.

     There is a popular perception that people buy members of Congress or have them in their pocket. I don't actually subscribe to that entirely. I think that is far more the exception than the rule. I think most of the elected officials who come to Washington have pretty firmly developed attitudes about particular issues. By the time they get to Washington their philosophical orientation is pretty well set and a campaign contribution is not going to make a tremendous difference. But campaign contributions do buy access: the ability to sit down in a face-to-face meeting, or a breakfast or what have you. There clearly is an unlevel playing field.

ER: The salvage rider is an example of an industry writing the law under which its behavior is supposed to be controlled.

KK: That is absolutely correct.

ER: Call it what you will - whether you own a senator or not - this is an abuse of the process.

KK: It happened because the timber industry is politically powerful in the Northwest. They are not the biggest player in the regional economy and they represent a declining portion of the regional economy for reasons that have nothing to do with federal environmental laws and policies, but for reasons that have everything to do with global markets and a shift to a more diversified, stable, more healthy economic base. But nonetheless, the industry has tight political ties with a number of elected officials and they are able to work those relationships to get legislation like they got repeatedly in the 1980s, and like they got again last year.

ER: The rider was attached to what?

KK: It was a package of proposals to reduce spending for last fiscal year (1995), and to provide disaster relief for Oklahoma City and the California earthquakes.

ER: A cynic might say the salvage rider was attached to that because it might not pass the Congress on its own merits.

KK: There is no question about that. There is no question that they chose the vehicle for it, because it was what is called must-sign legislation. There is little chance that this logging rider could have gone through as a free-standing piece of legislation and passed the Senate by a significant enough a margin to override a veto. The President would not have signed this as a free-standing piece of legislation.

ER: He has come out subsequently and said it was a mistake.

KK: We told him it was a mistake before he signed it.

ER: Industry was in court immediately over the interpretation of the law. What was that about?

KK: That is what I was talking about before with the section 318 provision where Senator Gorton and others described the rider to their colleagues as being very narrow and applying only to the roughly sixty marbled murrelet sales that had been sold under section 318. The day the bill was signed however, Senator Gorton sent a letter to the Administration saying it really means something much broader than that: it means all the timber sales ever offered and not logged in Washington and Oregon. The industry went into court seven or eight days after the bill was signed, and Judge Hogan agreed with them and issued a series of rulings that, in essence, said that everything from 1989 through July 1995 that had been offered but not yet logged for whatever reason, had to go forward under its original terms and conditions and had to go forward without complying with any environmental laws.

     President Clinton vetoed this whole rescissions/disaster relief package because there were many bad environmental riders in there, not just this one. He sent it back and a couple of minor changes were made to the logging rider, and a couple other changes were made to things he objected to, and then he agreed to sign the whole package. That is what he says was a mistake because the changes he got did not do anything of real import. Then a lawsuit was filed; Judge Hogan issued his rulings; and giant old-growth trees are falling.

ER: What is the status of efforts in Congress to repeal the rider.

KK: Representative Elizabeth Furse (D-OR) has a bill to repeal the logging rider that has nearly 150 co-sponsors. Senator Bill Bradley (D-NJ) has a companion bill in the Senate. In June, Rep. Furse tried to attach her bill to the FY 1997 spending bill for the Forest Service, but House Speaker Gingrich's Rules Committee refused on the grounds that it was against the rules to attach substative legislation to a spending bill. The irony is that last year the same committee expressly waived that rule to allow the logging rider to be attached to a spending bill.

     Undeterred, Rep. Furse proposed an amendment that would bar the Forest Service and other government agencies from spending money in FY 1997 to implement the logging rider. In essence, this would have meant that the rider could not be implemented from October 1, until it expired on December 31, 1996. Unfortunaely, her amendment failed by just two votes, 211-209, with Speaker Gingrich leading the opposition.

     Last March, Senator Patty Murray (D-WA) offered an amendment to an FY 1996 spending bill that would have repealed the logging rider in its entirety but also implemented a new salvage logging program that contained several provisions that concerned many environmentalists. In the end, most groups supported her effort, though it lost by a vote of 54-42.

     We are working to line up support for one more crack at a repeal vote in the Senate after Congress reconvenes in September. In addition, we are asking the Administration to cancel all of the environmentally damaging sales that have been awared under the logging rider, including those that would be illegal but for the language in the rider suuspending all environmental safeguards.

     Of course, when Congress returns, we are expecting the industry's supporters to offer legislation that would extend the rider, or at least some of its worst principles and provisions. Despite the broad public opposition to these kinds of proposals, they just keep trying for greater and greater access to the public lands with fewer and fewer limits on their behavior.

     The logging rider loosened the definition of salvage logging so much that one member of Congress said anything made of wood could be logged as a salvage sale. Worse still, we have seen widespread abuse of this new definition by the Forest Service because they have been putting out sales that a year ago were green timber sales. Nothing has changed about the sales, all they have done is repackage them and put a label across them that says salvage timber so that they get a full exemption from environmental laws under the rider. This has happened around the country and it is an abuse of the Government's trust responsibility to the current generation and to future generations with respect to these forests. It is like writing a blank check for the timber industry and/or the Forest Service.

     In July Agriculture Secretary Dan Glickman, who oversees the Forest Service, had to issue a directive that once again ordered the agency to stop illegally selling timber as salvage under the logging rider. His directive was proof that a good number of Forest Service officials have been systematically disobeying President Clinton's order to obey the law and the agency's own Memorandum of Agreement to do the same.

ER: What motivation does the Forest Service have for doing this?

KK: We shouldn't always talk about the Forest Service as a monolithic entity. There are many good people in the Forest Service, more now than at anytime in a long time, but you still have many of the people who are calling the shots in the Forest Service who came up through the ranks when the way to manage a forest was to cut it down. That was in many ways, the Gifford Pinchot model; you manage a forest actively, and over the years we have seen a lot of Forest Service land converted to plantation, tree-farm type management stocked with non-native species; that is a disaster for a forest and certainly for public forests.

ER: The logging rider has been called logging without laws. Is there no legal recourse to a bad timber sale?

KK: They provide a mechanism which purposts to let people go to court under limited circumstances. But the courts have repeatedly said that the laws are suspended so you don't have a case.

ER: What would it take to rescind the salvage rider?

KK: It has to take an act of Congress to repeal it. It expires on its own at the end of 1996, but there is a lot of damage that is going to take place in the Northwest and the rest of the country between now and then if something is not done. The old-growth section expires at the end of September and the rest of it expires at the end of December. But Senator Craig (R-ID) is pushing a new bill that would enshrine the key principles of the rider in permanent law. That is why we are continuing to build support for repeal by educating people around the country about how bad this rider is by educating members of Congress about how bad the Craig bill is, and working to get the Administration to use its existing authority to terminate the bad sales under the rider.

ER: Has that worked?

KK: No. The Administration continues to balk. They have authority in the timber contracts to terminate those old-growth sales and the same is going to be true with many of the salvage sales that have gone forward under the rider. The government has the authority under those contracts to terminate them; they have chosen not to. This is what I was talking about before where I said if completing the contract would jeopardize endangered or threatened species or cause serious environmental harm - and the case can be made easily for old-growth sales and many salvage sales - in those circumstances the Government is allowed to cancel the contract and to pay some specific monetary damages that are spelled out in the contract. It is not a lot of money; it reimburses them for out of pocket costs but they don't get to recover speculative profits and the government does not have to pay the whole value of the contract. It is all specified in the contract; every single one of those purchasers of Forest Service timber has agreed to those terms, and has agreed to let the Forest Service cancel the contract if it is going to cause severe environmental harm.

     President Clinton can't do anything about the legislation per se. That can only be repealed by Congress. He can however, exercise his existing power, and the agencies that work for him have the authority to terminate these contracts.

Copyright 1996 Environmental Review