The Association of Forest Service Employees for Environmental Ethics (AFSEEE) appreciates this opportunity to comment on S. 391, the Federal Lands Forest Health Protection and Restoration Act. Many of AFSEEE’s 1,000 Forest Service employee members will be responsible for implementing S. 391, if passed into law. They are professional resource managers in forestry, engineering, wildlife, hydrology, ecology, and numerous other disciplines essential to understanding ecosystem processes, including ecosystem health.

AFSEEE opposes S. 391 on two grounds, as discussed more fully below. First, it is unnecessary. Second, it is too poorly written to provide meaningful policy direction to land managers.

Forest resource managers, public and private, face many forest health challenges. Their root cause, in many cases, is that we have extracted more commercial products from our forests than they are capable of producing on a sustained basis. Thus, our watersheds are in deplorable condition, with scores of fish species already extinct, and scores more facing that fate in the near future. Many forest–dependent wildlife species have been pushed to the brink of extinction as their forest habitat shrinks. The timber resource is proving finite in many regions, such as Alaska and the Pacific Northwest, where weaning communities from decades of overcutting and finding sustainable economic alternatives is one of the most difficult challenges facing today’s forest managers.

In some forests, past practices, such as high grading (removing only the valuable trees) and fire exclusion, have combined to create forests unusually subject to intense wildfire. These conditions are more likely in dry forests, such as low–elevation Ponderosa pine ecosystems. However, even in these forest types, it is imprudent to generalize; every forest site is different and requires the conscientious and expert attention of qualified resource professionals.

Forest health challenges often involve making difficult trade–off decisions. Do we want secure grizzly bear habitat or more fire–resistant open pine stands? Do we want pristine air quality or low fuel levels? Resource managers can, and should, identify and analyze these trade–offs. However, the broader public also plays an important role in helping to choose between competing public values. Laws, such as the National Environmental Policy Act (NEPA), help insure that these public values are properly accounted for in land management decisions.

Fortunately for forest managers, the federal agencies’ existing statutory authority is sufficiently broad to allow managers to respond positively to today’s forest health challenges. That is why S. 391 is unnecessary. S. 391 offers managers not a single additional tool not already available for dealing with forest health challenges. For example, managers already can do any of the activities, such as thinning, salvage, timber stand improvement, reforestation, controlled burning, and the like, that S. 391 defines as “forest health management activities.” Managers already review forest health conditions on the federal lands, as S. 391 would direct. These reviews occur on an annual basis as a part of forest plan monitoring for each national forest where forest health is a potential concern.

Forest managers can (and regularly do) identify areas of forest health concern and prescribe remedial measures to address the underlying causes. For example, consider the Lassen National Forest, which is engaged in an ambitious program of understory thinning and brush control designed to lessen the risks associated with intense wildfire. This new emphasis follows decades of highgrading on the Lassen, which, in large measure, contributed to the problems the Lassen is now addressing. Thankfully, the Lassen does not have to await passage of S. 391 to get the job done; it has the necessary authority to act expeditiously and is doing so.

If forest managers can already do all of the activities S. 391 enumerates, why do some support this legislation? The answer may lie in S. 391’s effect on public access to decisions affecting their forests. S. 391 would relieve forest managers from having to tell the public when forest health activities might significantly harm the environment, including public health and safety. See § 4(b)(A) (eliminating NEPA’s duty to acknowledge significant environmental harm in an environmental impact statement).

For example, S. 391 would shut the public out from knowing the dangers of a prescribed burning program proposed next to a community subject to severe weather inversions, thus risking the health and lives of seniors, the disabled, and young children. S. 391 risks trading the health of our forests for the health of our citizens.

Further, under S. 391, these same citizens would have no administrative recourse to raise their health concerns. See § 4(d) (eliminates right of citizen administrative appeal of forest health actions). S. 391 would force these citizens prematurely into court, at great personal and taxpayer expense. S. 391 would deny the agency and the public the potential win/win solution an administrative appeal might have provided (such as burning only during favorable weather conditions).

In addition, though AFSEEE is not expert in judicial matters, we do find it surprising that S. 391 would elevate forest health litigation above all other matters the federal courts must resolve. See § 4(e). Is forest health truly more important than prosecuting federal drug offenders, enforcing federal public health and safety regulations, ensuring anti–trust statutes are effective, or the courts’ numerous other duties? Though forests are important, the resolution of forest health issues can take a more pedestrian approach –– trees live a long time compared to people.

AFSEEE believes that the public is best served when legislators focus on setting policy, and leave the technical issues associated with particular land management practices to professional resource managers. S. 391 offends this basic distinction by putting the legislature in the awkward role of deciding technical resource management issues.

For example, § 3(b)(A) defines a forest health emergency area as:

forests . . . that have experienced disturbances . . . that have caused more than 50 percent of the trees to be dead or dying, and will suffer further environmental degradation, such as soil erosion, stream damage, or habitat loss . . . and implementation of one or more forest health management activities on such lands can reduce or eliminate such degradation.

This definition, when applied in the real world, yields nonsensical results. For example, consider a recently burned forest, such as that left by the Warner fire on the Willamette National Forest, where fire killed virtually all of the trees. Immediately following the fire, foresters responsible for rehabilitating the Warner area believed that re–burning was a real forest health risk, due to the large accumulation of dead wood left by the previous fire. Thus, one might suppose that the Warner area would be a candidate for designation as a "forest health emergency area" under S. 391. Two years later, however, the Warner area does not even meet the minimum requirements of a “forest health emergency area” because there are now several thousand young trees per acre, a result of natural regeneration following the fire. No longer are “50 percent of the trees dead or dying,” as S. 391 requires. However, the dead and dry fuels situation has not changed a bit; the area is as susceptible to reburn as it was immediately following the fire.

Consider a second example –– a 30–year–old Douglas–fir forest on highly productive Site II soils. According to USDA Technical Bulletin 201 (The Yield of Douglas Fir in the Pacific Northwest), this natural forest has about 1,400 trees per acre. However, by age 50, this same forest has fewer than 700 trees/acre. Thus, it is reasonable to argue that over 50 percent of the trees in the 30–year–old forest are “dying.”

Does our hypothetical 30–year–old forest meet S. 391’s other requirements of a forest health emergency? Yes, indeed it does. It is commonplace that 30–year–old forests have “experienced disturbances” in the past. In fact, it may well have been borne from natural wildfire, as have most unplanted, even–aged, Douglas–fir forests. Will our thrifty young forest “suffer further environmental degradation,” as S. 391 requires. Surely it will. For example, as the forest canopy closes, many wildlife species will lose their preferred habitat.

Finally, might some forest health management activity reduce this environmental degradation? Again, the answer is "yes." The forest manager could clearcut the 30–year–old forest. This would eliminate the immediate risk of dying trees and would stop the development of the more wildlife depauperate closed–canopy forest. In sum, though few rational foresters would argue that a 30–year–old Douglas–fir forest is suffering a forest health emergency, that’s precisely what S. 391’s definition would permit.

These examples illustrate the myriad problems associated with well–meaning legislators attempting to legislate specific forest practices. It rarely works, and it fails here.

When all is said and done, S. 391 reduces to the following:

The Forest Service and BLM are authorized to undertake any actions almost anywhere on federal lands under their jurisdiction without having to prepare an EIS to tell the public the harm that might threaten the environment or public health, without having to consider public concerns raised through administrative appeal, and subject only to expedited judicial review that puts forest health above all other judicial priorities.

This is not the kind of helping hand from Congress most forest managers need or want. We know how to manage the forests; let us prove it without being ham–strung by unnecessary and ill–conceived legislation like S. 391.