43 



national forests or 20 to 25 percent are available for timber har- 

 vest. On the Tongass, it is less than 10 percent. 



What we have under the current system is not an environmental 

 protection but a never-ending process. The laudable goals of NEPA 

 simply are not reachable under current law. The problem is NEPA 

 itself. Under NEPA, we never get product, we only get lots of proc- 

 ess. It becomes a never-ending planning cycle. 



And a big part of the problem is that no justification for any ac- 

 tion will ever satisfy the law because anyone at anytime can allege 

 possession of new information or significant impact on some pro- 

 tected activity such as subsistence, thus forcing a new EIS. The 

 east Kuiu example illustrates how this can undermine every at- 

 tempt by the agency to do its job. I have had Forest Service em- 

 ployees tell me in frustration that they cannot write an EIS that 

 will satisfy court scrutiny. The law is simply too open-ended. 



Mr. Chairman, if you want to repair the appeals process, you 

 have to amend NEPA. It has to be rewritten so that it has a clo- 

 sure. It can't remain open-ended. It must have some finality to it. 

 It must be rewritten so that it becomes a tool to protect the envi- 

 ronment, not a club to beat up on the people who are trying to 

 work in the West and provide fiber that this country needs. Thank 

 you very much for your indulgence. I would be happy to answer 

 questions. 



[Statement of Mr. Phelps may be found at end of hearing.] 



Mr. Hansen. Thank you, Mr. Phelps, and I thank all of the wit- 

 nesses for their excellent testimony. We will now turn to questions 

 from the committee. The Chair recognizes the gentlelady from 

 Idaho for five minutes. 



Mrs. Chenoweth. Mr. Phelps, your testimony was very interest- 

 ing and sad. Has anyone thought about what Congressman Taylor 

 referred to in the Rule ll[b], counterfiling of a frivolous lawsuit? 



Mr. Phelps. Thank you for that question. Congressman. Part of 

 the problem, of course, is that it costs us a great deal of money to 

 fight the lawsuits that are thrown our way. And, frankly, our guys 

 are weary. They are broke. A lot of our companies have gone out 

 of business. And the other side doesn't pay for their lawsuits. This 

 is something that needs to be addressed by Congress. 



This business of the other side being able to file public-interest 

 lawsuits and prevent us from working and yet we have to pay — 

 I mean, we are taxpayers. We pay for their stoppage of work. And 

 so, yes, that is something we consider, but it is exceedingly difficult 

 for us to do that when we are continually on the defensive. 



Mrs. Chenoweth. I do want you to know that your suggestions 

 were not lost on us 



Mr. Phelps. Thank you. 



Mrs. Chenoweth. [continuing] — about bringing language to the 

 NEPA law that brings closure, and I thank you for that good sug- 

 gestion. Mr. Williams, you testified that the emergency salvage law 

 is working very well up in your area. Let me ask you about the 

 area known as the Yak up in northern Montana. How is that com- 

 ing along? I have been in the Yak. 



Mr. Williams. It is coming along very well. The case that I men- 

 tioned in which the environmental groups litigated, because of the 

 exemption from administrative appeal, they actually did litigate on 



