Should the Public Have a Seat at the Firefighting Table?

Today the Seattle Times reports on a lawsuit FSEEE filed challenging the Forest Service’s failure to comply with NEPA before logging old-growth forests during the Wolverine Fire.

Happy to answer questions readers may have. I recommend reading the complaint, especially Exhibit A, which is an affidavit by a recently-retired Forest Service employee who lives in the area affected by the Wolverine Fire logging.

18 Comments

  1. It’s always good to call out an agency’s abuse of discretion, and a win here would stop some use of 36 CFR § 220.4(b). I say some because, even though the requested relief is to enjoin its use, I have to think a court would still allow its use in at least those situations it considered to be a true emergency. CEQ regulations do allow alternative arrangements to meeting NEPA/CEQ requirements in emergencies (40 CFR §1506.11). Does FSEEE have a position on what the court should allow pending completion of NEPA on a new regulation, or on what circumstances a new regulation should say warrant alternative arrangements? (It seems like this would have to define “emergency” and its “immediate” impacts.)

    I also wondered whether the Forest Service actually complied with the requirements of 36 CFR § 220.4(b) to consult with CEQ or otherwise determine and follow “alternative arrangements.” Is there an administrative record of the decision-making process? Thanks!

    • FSEEE does not believe that firefighting is an emergency at all, i.e., “an unforeseen combination of circumstances or the resulting state that calls for immediate action,” which is the definition the Forest Service cites in its 2008 Federal Register notice (73 FR 43084) promulgating 36 CFR § 220.4(b). Fires are not unforeseen. As of today, 4,049 fires have ignited on national forest land in 2016. Last year, thousands of fires ignited. Next year, thousands of fires will ignite. Just because we don’t know exactly where or when any particular ignition will occur doesn’t make fire unforeseeable. We can plan for fire.

      In fact, Department of Interior agencies (BLM, NPS) have planned for fire and complied with NEPA in doing so. Each and every DOI land management unit has a “fire management plan” that was assessed in an EA or EIS, e.g., Yosemite National Park’s Fire Management Plan EIS. Inexplicably, the Forest Service — alone among federal land management agencies — has refused to do the same.

      The Forest Service knows full well its NEPA firefighting obligation. Prior court orders regarding aerial fire retardant use leave no doubt. The Forest Service did an EIS for fire retardant. As a result of that analysis, the FS adopted new standards for retardant use that apply to every national forest acre.

      As far as we have been able to determine, there is no administrative record for the Wolverine Fire community protection line logging decision.

      • The Head Fire Honcho at Yosemite has admitted that their track record has been “very poor”. Luckily, for him, that happened before his tenure. I asked him about the potential for catastrophic re-burns within the footprint of the Rim Fire (referencing the Big Meadow fiasco), and he admitted that it is very likely. I do think they have learned some difficult lessons, though.

      • This fits with the game of “hot potato” I saw played with NEPA requirements related to wildfire between the Fire staff and Planning/NEPA staff after earlier lawsuits found that pre-fire planning the Forest Service was conducting without NEPA wasn’t legal. Fire then wanted to put these decisions in forest plans, but that was in the days when Planning didn’t want to do NEPA for forest plans. That led to aborted attempts to better integrate fire planning and forest planning, that as far as I know went nowhere. The result looks like still no NEPA for wildfires. Since the Forest Service has since conceded that it must do NEPA for forest plans, they should be asking what decisions they should be making at that level related to wildfire that might be more efficient and integrated than a separate process (with additional NEPA).

  2. I understand that a decision was made to cut this firebreak during the fire. (Maybe not a decision some would agree with but it did happen.) This means that these trees are already cut and laying there.
    So FSEEE is suing not because the trees were cut down but because the trees are being harvested.
    I think it would be huge waste of our public resource not to harvest them and make something out of these down trees. Why let more wood go to waste? The FS (and the general public) is lucky that someone is willing to take the risk and bought the sale.
    I also do not understand how the removal of the down trees would adversely affect the owl.
    If the FSEEE is successful in this lawsuit it is feasible that the result would be an end all post fire timber harvest. Which would be another disaster for active forest management and rural communities.

    • Bob, read the complaint. The trees have been removed. FSEEE is suing over the decision to log them. Just because that decision happened in 2015 doesn’t make it legal, nor does it mean that a person adversely affected by that decision cannot challenge it in court.

  3. Same thing happened on the Big Windy Complex in southwest OR in 2014, adjacent to the Biscuit fire scar, but only big trees were cut. There was no community threatened, but it prolonged the fire for months. The fire could have been directly suppressed. Risk aversion leads to aggressive contingency cutting to justify amassing resources.

    • I don’t believe they ever sold any trees out of the Big Windy Complex? The FS does like to “fight” their fires. I have always believe the Biscuit could of been put out if they hadn’t delayed fighting it.
      I think one of the responses I got from the district ranger was that they did a good job of reintroducing fire to the landscape, as if the Biscuit wasn’t enough.
      Here is what they are doing up in the Olympic National Park.
      “The naturally-caused wilderness fires are being managed for resource benefits. As they burn,they are creating a healthy mosaic of burned and unburned forest. Smoke levels are affected by many factors, including the size of the wood that is burning, how wet the wood is, the type of terrain, temperatures, and wind patterns.”

  4. Thanks, Bob, for pointing out the Olympic National Park’s current fire management actions.

    In 2005, ONP wrote a Fire Management Plan that details how it manages fire ignitions. The plan “was prepared to comply with the requirements of the National Environmental Policy Act (NEPA) and National Historic Preservation Act (NHPA).” It “incorporates a programmatic approach that covers all activities described in the fire management plan,” which “will reduce the need for NEPA documents for individual projects addressed in the FMP.” ONP sought public comment and also consulted with other relevant state and federal agencies. In sum, after 60 years of suppressing all fires, this new plan “begins the process of restoring the natural role of fire to portions of the park.”

    • I guess what I find hard to understand it that it is ok to burn up a tree but it is not ok to take a tree and make something out of it. I would guess on the Olympic peninsula there are some of the most valuable Western red cedar and Sitka Spruce in the world. A couple of trees could go a long ways to creating some economy and special wood items that society could enjoy for centuries. Instead we are ok with spending hundreds of thousands of dollars of taxpayers dollars for “resource benefit”, that is, dead burnt trees.

  5. Check out the Maple fire that is burning on the west side of Yellowstone right now. They are cutting a wide contingency line along the edge of the town of West Yellowstone and decking the logs for possible sale. This is a bit different since the fire is still quite active near a town, but they do it because they don’t have anything better to show the town. Weather puts fires out, not planes and helicopters, but when you spend 1 million a week you better have something someone can take pictures of…

    • I checked it out:

      Within the Park boundary…. Let me know if you need specific locations?? Currently we’re cleaning up the boundary here in West Yellowstone and bordering the community of Duck Creek.

      On Mon, Aug 29, 2016 at 3:22 PM, Andy Stahl wrote:
      TO: Maple Fire IC

      Is the “fuel reduction on the Park boundary” being performed within the National Park, within the adjacent national forest, and/or on private land?

      Thanks,

      Andy

      As I noted earlier, Yellowstone National Park, like all DOI units, has a NEPA-compliant fire management plan to inform and regulate its firefighting actions. None of the Forest Service’s units does.

    • To me, the problem with wildfire costs is not in the WUI. It is when wildfires are allowed to go from a $6000 lightning fire into a $100,000,000 firestorm. Fires in the WUI have, pretty much, fixed costs, due to an aggressive suppression approach. Fuels treatments can partially reduce those costs in the WUI, too. What we really need, as well, is a change in how liability is assessed. With some areas choked with dead trees, like in Colorado Wilderness Areas, there needs to be a way to torch them off, when conditions are favorable, instead of letting them burn in the middle of fire season, costing way too much money, and tying up expensive for-profit firefighting services, for weeks and weeks and weeks.

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