86 



C.F.R. § 223.116, which still is the regulation governing timber 



sale contract termination for cancellations of timber sales to 



protect threatened and endangered species and the environment. 



In the President's Unified Regulatory Agenda, the U.S.D.A 



explained; 



It is not the Department's policy to prepare 

 and offer timber sales which would jeopardize 

 the survival of threatened or endangered 

 wildlife species or which would cause a 

 sensitive species to be listed. However, as 

 more scientific data is gathered, it is 

 possible that some timber sales which were 

 consistent with planning guidance at the time 

 they were offered must be canceled in the 

 light of new knowledge. During the 1993-1996 

 period, this may happen with timber sales 

 located in the habitat of the Mexican spotted 

 owl, the northern goshawk, the marbled 

 murrelet, and northern spotted owl. In these 

 situations, the difference between the 

 Government's liability under the current 

 regulation and its liability calculated using 

 the method in the proposed regulation is 

 approximately $300 million. 59 Fed. Reg. 

 57003, 57026 (Nov. 14, 1994). 



Regulatory changes affecting the management of national 



forests must be incorporated through the land and resource 



management plans. Congress gave the Secretary of Agriculture 



authority to revise existing contracts to be consistent with such 



plans. 16 U.S.C. § 1604(i). However, "any revision in present 



or future permits, contracts, or other instruments made pursuant 



to this section shall be subject to valid existing rights." Id. 



Thus, even before Winstar , the Forest Service had a difficult 



argument that it was not liable for regulatory changes affecting 



timber sale contracts. After Winstar , the argument becomes 



extremely difficult, if not impossible. 



-8- Sim\swhk7 79t 



