Court Rules Firefighting Exempt from NEPA

In a case brought by FSEEE, a federal district court judge ruled that forest fires are emergencies; and, as such, firefighting actions are exempt from any form of NEPA documentation. FSEEE filed the case in response to concerns raised by Wenatchee national forest employees that a 30-mile long fuels break logged through spotted owl critical habitat and riparian corridors was unnecessary. The fire stopped six miles from the logged line when rain and snow put it out.

FSEEE will appeal.

27 Comments

  1. Thanks for posting this, Andy. Interesting case. Key paragraph:

    “Under 36 C.F.R. § 220.4(b), the Forest Service may circumvent the traditional NEPA process if: (1) a “responsible official” determines “an emergency exists that makes it necessary to take urgently needed actions before preparing a NEPA analysis[,]” and (2) the action is“necessary to control the immediate impacts of the emergency and are urgently needed to mitigate harm to life, property, or important natural or cultural resources[. ]” When taking such actions, the “responsible official [must] take into account the probable environmental consequences of the emergency action and mitigate foreseeable adverse environmental effects to the extent practical.”

    And this follows:

    “Plaintiff argues that the Forest Service did not comply with 36 C.F.R. §220.4(b) because there was no declaration of an emergency and fires do not create emergencies.”

    1. The first paragraph does not specify how an emergency is to be declared. Is there such a procedure or standard?

    2. Next, Plaintiff claims that “…fires do not create emergencies” …. and that “a wildfire in Central and Eastern Washington does not fall under the ‘common sense, dictionary definition of emergency.’”

    A 62,000-acre fire isn’t an emergency? Why not?

    • 1. The first paragraph does not specify how an emergency is to be declared. Is there such a procedure or standard?

      Answer: No. Nor did the responsible official, in this case the forest supervisor, make any such declaration or determination.

      2. A 62,000-acre fire isn’t an emergency? Why not?

      Answer: Emergencies are unforeseen events. Forest fires are foreseeable and responses can be planned in advance. Department of Interior agencies (BLM, FWS, NPS) assess firefighting actions, in advance, in plans that comply with NEPA. The Forest Service is the only federal land agency that does not do so. The FS did not respond to these arguments and the judge did not address them.

      • “Forest fires are foreseeable and responses can be planned in advance.”

        In general, perhaps, but who plans for a 62,000-acre fire? Does BLM plan in advance for large fires in specific locations with specific conditions (wind, RH, fuel moisture, etc.)?

        • In general, most natural emergencies could be considered “foreseeable:” we know the areas the areas where tornadoes and hurricanes are most likely, as well as the seasons and weather conditions which typically trigger them; we know where destructive earthquakes are most likely; we have a good idea what to expect if/when Rainier erupts again.

          That doesn’t mean any of these events aren’t still emergencies.

          Nor does it mean I agree with the “emergency” justification for this particular fuel break.

        • As DOI explained when it promulgated its NEPA rules (at the same time the Forest Service was writing its own rules), “The Department [of Interior] notes that fire suppression alternatives are addressed in plans that are subject to NEPA analysis.” 73 FR 61291 at 61301 (Oct. 15, 2008).

          The Wolverine Fire burned into the North Cascades National Park, which has a NEPA-compliant fire management plan. Suppression actions taken in the Park were guided by the Park Service’s plan and were different than those taken by the Forest Service, which was guided by no plan at all.

  2. A great example of ridiculous litigation.

    If a fire manager gets aggressive with direct attack and someone gets hurt, the overhead can be criminally liable. Now we have employee environmentalists claiming we should do NEPA for indirect attack. Many in this group (FSEEE) are probably the same ones who cringe and say it isn’t safe to do direct attack.

  3. People do interesting things when there is a fire – lots of ecological values go out the window – because politics intervenes and everyone wants to show they are “doing something”. People also die on fires when things get political (Iron 44). Some of my favorites include a “responsible official” wanting to put a tractor fireline through a serpentine fen in a Research Natural Area – we talked them out of that one – but it took a lot of talking. It was a fireline that would have done more harm than good. Others include “sensitive meadows” – so “sensitive” that everyone is concerned when 4-wheelers go off-road in them – then, during the fire, the meadow is turned into a parking area for 100+ vehicles, and, after the fire, a tractor with an implement is used to plow up the area and then it is reseeded. All kinds of things that we would never consider during project planning for any reason or we might get objected to (and more than likely are not consistent with the Standards & Guidelines in the local Forest Plan), happen during fires when our decision-making skills sometimes just aren’t that good in terms of thinking about the tradeoffs that are being made.

    • The problem is that we have gotten so concerned with each “concern” that the fires now are destroying more “concerns”, including human life. We have sensitive areas where harvest has been banned do to potential disturbance of sensitive or endangered species, which are then obliterated by severe fire intensity. A great example is the Klamath Fires of 2014. Pull up maps of the T&E and other sensitive areas, overlay a fire intensity map and the evidence is clear. Or do it in reverse and try to guess where the sensitive locations are. Is an impact by man automatically bad?
      Mankind has an impact, we always have and always will. Some where along the way, someone decided that we aren’t part of the natural cycle of life and we cannot have an impact. A classic example is Mount St. Helen. Thousands of sensitive areas were destroyed in an instant. There were horror stories of how it would be a moonscape for centuries. Millions, possibly billions, have been spent to preserve and study this on federal land. WeyCo will be starting harvest in their “Moonscape” in a few years. Is this bad because man changed the recovery process from thousands of years to a few decades?

  4. If the Forest Service designates, in advance, a “Maximum Management Area” (where fires are allowed to burn, “for resource benefits”), they should have to do formal NEPA. Whether that NEPA should be in the form of an EIS or just an EA should be determined by what is contained within the tens of thousands of acres included within. Of course, surveys should be done BEFORE any designation but, the Forest Service is unwilling to do that.

  5. Here’s some previous discussion – http://forestpolicypub.com/2016/07/22/firefighting-run-amok/

    I think the problem is that the NEPA requirements don’t account for the Forest Service becoming part of the cause of an emergency by failing to plan for it. It’s almost like it’s benefitting from its own negligence. Negligence is acting unreasonably, and if other agencies plan for these situations, then the Forest Service could be viewed as unreasonable and negligent. That’s a case that would be easier to bring by someone suffering private damage. Do the other agencies plan just because they think it is a good idea, or are there some legal requirements that only apply to USDI?

    • I was once, to my chagrin, assigned not to actual fireline duty, but as a grunt in a fire camp for a few days, doing all kinds of jobs, from organizing and distributing supplies to cleaning portable showers. The camp was established in a lovely meadow in the Sierras, and I helped dig trenches for waste-water disposal from the portable kitchens. And of course the meadow was trashed after hundreds of firefighters and other folks used it for a couple of weeks. Maybe it was ripped and seeded, and if so, I’ll bet it’s now a lovely meadow.

      This 5,000-acre fire surely was an emergency, declared or not – it threatened a lakeside resort, summer homes, campgrounds, power lines, etc.

      Still, you might say that it wasn’t appropriate to put that camp in a meadow. Fine, but what would you have the agency do? An incident commander has to make a choice about where to put the camp, and the priority is a camp close to the fire. Put yourself in an IC’s shoes and ask yourself what you’d do.

      Speaking of NEPA, shouldn’t an EIS be prepared for an area where fire is excluded, resulting in unnatural fuel loading and a drastic shift in fire regime? That’s a human activity, too.

    • I think somehow we need to incentivize proactive fire planning. More full-time employees would help, but they would need performance incentives since IMHO we already have plenty of FS employees who are content doing nothing.

      Perhaps if we gave district rangers and their NEPA specialists performance bonuses and extra funding to reward them for successfully planning fuels treatments and other pre-emptive management activities?

      Obviously the current system isn’t working. Most forests have outdated plans, and career bureaucrats know it’s easier to wait for a fire “emergency” when they’ll have carte blanche, than to spend time and energy on NEPA planning they know will just end up in court.

      • However, we’ve seen that groups like FSEEE will protest and sue over proposals to conduct fuel reduction treatments on public lands. It’s not that they really care about our public lands and resources. They just hate the idea of productive jobs and perhaps a little income coming from our forests. So this call for NEPA analyses prior to wildfire response is, at best, hypocritical.

        • Howdy John. Yep, it must just be that FSEEE “just hates the idea of productive jobs and perhaps a little income coming from our forests.” Yep, that must be it. Nothing else could explain it at all. Nothing.

          • Matthew I would like to see the positive aspect of what has been accomplished by FSEEE. Since their creation, they have been a road block to many needed projects. They have helped bog down the agency with redundant paperwork.
            One thing they may consider positive is that they create their own job security, which seems to be a conflict of interest everywhere but here, at the expense of American Taxpayers.

            • Perhaps, Forester 353, you see no positive aspect in any of this…but many of us do.

              https://www.fseee.org/about-us/

              FSEEE’s Mission

              Our mission is to protect national forests and to reform the U.S. Forest Service by advocating environmental ethics, educating citizens, and defending whistleblowers.

              FSEEE is made up of thousands of concerned citizens, present, former, and retired Forest Service employees, other government resource managers, and activists working to change the Forest Service’s basic land management philosophy.

              FSEEE is a unique concept—a national organization of government employees holding the Forest Service accountable for responsible land stewardship. FSEEE believes that the land is a public trust, to be passed with reverence from generation to generation. The Forest Service and other public agencies must follow the footsteps of Aldo Leopold, a pioneer of conservation, and become leaders in the quest for a new resource ethic. Together we must work toward an ecologically and economically sustainable future.

              FSEEE Program Areas

              Public Education: FSEEE produces and distributes publications to increase awareness of needed Forest Service reform. These publications include the quarterly Forest Magazine, detailed monitoring reports and a middle-school environmental curriculum. In addition, FSEEE coordinates informative speaking tours throughout the nation on as-needed basis.

              Monitoring and Organizing: FSEEE is a vigilant watchdog over the successes and failures of the Forest Service. Our efforts to reform the agency require FSEEE to widely publicize examples such as disastrous timber policies and successful watershed restorations. FSEEE also facilitates communications between reformers within and outside the agency.

              Protecting Integrity and Ethics: FSEEE is a screening and referral agency for Forest Service whistleblowers who risk their careers to protect our natural resources.

              FSEEE Program Objectives

              Redefine timber and other commodity targets so that they are not the goal, but rather the outcome of land management objectives. Ensure ecosystem integrity as the highest priority.

              Protect and promote the right of the public to be informed. Public employees have an obligation to keep the public informed about resource management law, policy and practices.

              Champion the role of large intact ecosystems and natural disturbance cycles as blueprints for reconstructing damaged lands, protecting diversity and restoring resource productivity.

              Foster/develop a land management ethic in ourselves, federal and state agencies, and elected officials.

              Forest Service Employees for Environmental Ethics (FSEEE) is a 501(c)(3) nonprofit organization.

              • If the FSEEE is really concerned with the state of our Forest then why, after 25 years of the NWFP and the overgrowth of biomass, are they not championing the increased removal of fuel? When the Agency issues millions in fuel reduction contracts, under current prescriptions, they are accomplishing nothing more than removing an entire generation of trees.Then since they rarely have the money to follow up, are creating an under-story choked with ladder fuels and brush. The evidence is clear from numerous large fires, that the hands off approach to critical habitat is only sentencing these areas to severe fire and total destruction. Where’s the championing of short term disturbance for the long term improvement? The idea that you can do landscape management including letting fires burn, has gone wrong how many times? As a result private lands are damaged, homes are destroyed, and not reimbursed by the Federal Government, yet anytime the reverse happens private landowners are billed.
                If FSEEE is truly about reform and forest health then lets see some real results and not just road blocks and feeding other activist in order to stop projects you don’t agree with. The idea of protecting whistle blowers was and is great, but the agency has become a bottomless pit of tax dollars with little results, outside of chronically ill forests that are increasing in mortality equal to growth. Many good people have left do to the use of the “Peter Principle” for promoting supervisors in many of the Forests. Multiple use includes harvest, not excludes it. There are goals for recreation, wilderness, and there should be goals for harvest, not just an abstract number that you may hit if you have time and money or if it happens to benefit one of the other goals.
                As for the original issue of discussion, the idea that you will do NEPA for wildfire is great. Let’s hold the managers that sign off on the NEPA criminally liable for the loss of private property and lives, if by following it, the fire escapes Federal Ownership or blowup and we have another Biscuit. Its similar to the standard that fire managers have to weigh when they choose to do direct attack.

  6. What upsets me is to see all those trees cut down and stacked and have the FS decide that they don’t want to sell the trees. (Though I believe in this case they did sell some of the trees. Maybe that is what upset FSEEE.) It is one way of avoiding hazard tree sales, adding insult to injury.
    How come FSEEE never got upset when they start burnouts miles from the fires that never reach the fire?

  7. “The public should be outraged,” stated one Sierra Nevada Air Pollution Control Officer regarding increasing pollution from prescribed burns, pile burns and out of control agency “managed” fires that are occurring across the Sierra Nevada and the nation.

    Agency created burns produce massive amounts of toxic air pollution, in favor of the half science of forest health over clean air and human health. We are all suffering under the guise that agency created toxic burn smoke affects only adults and children who are sensitive to smoke; the truth is that toxic burn smoke adversely affects us all.

    Local, state and federal burn agencies routinely burn public resources and pollute entire regions with impunity, while our politicians, U.S. EPA, and State Air Pollution Control Boards turn a blind eye. Smoke management plans are often inadequate and fail without consequence, and county level Air Pollution Control Officers have little political clout to compel state and federal burn agencies to put the fires out.

    Agency “managed” burns, prescribed burns and pile burns unleash billions of tons of particulate matter, carbon, including carbon black, phosphorus, carbon dioxide, mercury, PM10, PM 2.5 and other toxic chemicals into the atmosphere eventually finding their way into our lungs, our children’s lungs, the ozone, pets, wildlife and snowmelts. They can contribute to algae growth in our lakes.

    Managed Burns
    The public is unaware that burn agencies do not always suppress fires; instead, they routinely “manage” burn opportunities. Federal and interagency burn managers follow the “Guidance for Implementation of Federal Wildland Fire Management Policy, dated February 2009,” allowing them to actually grow and steer fires, without regard to toxic smoke health effects.
    The 4 month Soberanes Fire near Monterey, CA was a “managed” burn. While structures were protected, the fire was eventually purposely steered and grown by interagency burn managers through the withholding of resources resulting in massive California and Nevada air pollution.

    Burn managers decided to “manage” the Yosemite Rim Fire rather than suppress it. Agencies burned 257,314 acres of our treasured national park and allowed the fire to smolder, emitting toxic particles into the air and chocking the lungs of residents and visitors in the Sierra Nevada and Lake Tahoe for nearly 12 months.

    “Managed” fires are often misreported as wildfires. Burn agencies blame global warming, with an underlying threat of more to come if fuels reduction and suppression budgets are not increased and approved each year.

    Managed Burning Before Logging
    A “managed” burn that has wiped out the spotted owl and other endangered animals, plants and insects opens the door for logging contractors to quickly move in. Both the Yosemite Rim Fire and King Fire in CA resulted in massive logging contracts after months of “managed” burning.

    Recent emails from a retired US Forest Service employee demonstrate that internal job promotions serve as reward for profitable logging contracts for USFS supervisors who undertake major “managed” and “prescribed” burns.

    Between massive agency “managed” burns, post burn logging contracts, and slash pile burning, the USFS, BLM and state agencies are generating on an epic scale more toxic air pollution and catastrophic destruction of our natural resources and protected wildlife than ever before.

    Capitalizing on Public Fear
    By downplaying fire prevention and creating historically destructive “managed” fires, burn agencies have terrified politicians, public citizens and the insurance industry. Insurance rates have skyrocketed in mountain regions.

    And what of health costs? Many believe that history will eventually reveal a respiratory disease epidemic in the impacted regions as a result of unchecked and unmonitored agency burns.

    Stop the Smoke
    Public burn agencies are polluters, pure and simple. They create toxic smoke while ignoring public health and need to be held accountable under the current US EPA Clean Air Act, the National Environmental Policy Act and increased local, state and federal regulations.

    Elected officials at the local, state and federal levels must stop managed burns, provide regulatory oversight for burn agencies and aggressively support alternatives to burning. Congress should require 50% of any federal fuels management funding be spent on “chip as you go” policies, natural gas grinding and other technologies as well as real time public health air monitoring.

    • The amount of smoke discharged from controlled burning is paled in comparison to the amount of smoke discharged annually as a result of larger and larger wildfires.
      Much of the over loading of fuel beds is the result of not being able to do more controlled burns, due to smoke clearance. Many populated areas are impacted for months at a time due to wildfire smoke. Yet we as burn managers can’t impact SSRA’s for even a partial day in order to help clean up the fuel overload. People would have less smoke intrusion throughout the year if we could do controlled burns when the fuels were in prescription, instead of when the wind drift was just right. As stated in above comment, we are so concerned about our concerns, that we are destroying what we are concerned about.

  8. Actually a very interesting take on fire fighting. It does seem that these agencies have become “burn agencies”. I guess I won’t accuse them of being in it for the money, but there sure is a lot of it spent on burning.
    A small fire has started in the Kalmiopsis, in one of the few areas that didn’t burn in the Biscuit fire.
    They let it burn for week, sent in a small crew to fight it and decided it was too dangerous now, and have called in a team, and are clearing a helicopter pad. It’s only mid July and things are just starting to dry out. Are we looking at a new major fire?
    I see where the island fire in Klamath NF is now over a thousand acres, how long before it explodes?
    These fires could of been put out.

  9. While I agree that sometimes fires are allowed to burn for dubious “resource benefits”, many fires become large, due to firefighter safety issues. Both the Rim and King Fires had spectacular runs up huge canyons, with steep slopes and dense fuels. In today’s world, these ‘pristine’ canyons act as fire conduits, choked with fuels, both live and dead. Additionally, these epic Sierra Nevada canyons create their own erratic winds. During the mornings, the cool air flows down the canyons, pushing fires lower in elevation. During the afternoons, the winds shift and you have strong up-canyon winds.

    Regarding salvage logging, any talk about “massive logging contracts” is just blather. The Rim Fire burned over 250,000 acres, and only about 30,000 acres were proposed for salvage, with half of those acres being in plantations, from the last big firestorm. Yes, salvage logging looks pretty brutal on private timber company lands, for a few years but, they replant more of their burned lands than the Feds do, and quicker.

    When wildfires and firestorms burn, there is no way to mitigate or reduce the smoke. With prescribed burns, there are more options. The USFS cannot do any burning if conditions aren’t “in prescription”. Sometimes, when conditions are right, the State has a No-Burn day, and the USFS cannot burn. With warmer springs and falls, their burning ‘windows’ are dwindling. However, the huge Sierra Pacific Industries seems to be able to get waivers, when they need them.

    Drift smoke from wildfires is a huge problem. Bigger than most people know. I went to central Idaho to work on an aspen survey, and California was on fire, with a few dozen fires burning. During my assignment, there were several days when the air was chocolate-colored and nasty. The fires burned for weeks.

    With the certainty of human ignitions near crowded and unhealthy forests, we can either plan for firestorms, or not.

  10. Andy, The idea that FSEEE doesn’t receive Federal money is on the surface correct. The issue would be how are the members benefiting as Federal Employees? Who has to respond to all the litigation? How many field hours are added to address litigation concerns? How much research and disclosure is done during work hours by FSEEE members? If your answer is none, then you need to get on the inside and do a little research. How many FSEEE members would still participate if they weren’t agency employee’s? Resource management agencies should budget neutral, they should figure out how to fund their budget with their own output, whether it be recreation, grazing or timber management. I’m pretty sure when people actually have a stake in their future that is not tied to tax payers funding, solutions would increase and obstructions would decrease.

  11. Forester 353: FSEEE sues rarely and few of those cases challenge vegetation management decisions. Here are FSEEE’s cases during last 25 years that I can recall off the top-of-my-head:

    1) Challenge to Biscuit salvage sale required the Forest Service to mark accurately its leave trees.

    2) Challenge to outfitter permits required the Forest Service to follow the Wilderness Act in determining whether commercial services are necessary.

    3) Challenge to aerial fire retardant use required FS to better protect streams and critical habitat for certain listed plants and animals.

    4) Challenge to outsourcing of Land Between the Lakes farming permits to private non-profit group required the Forest Service to make permitting decisions itself.

    5) Challenge to Tongass logging road construction required Forest Service to assess environmental impacts before it sold associated timber sale.

    6) Challenge to salvage sale in northern spotted owl required FS to assess environmental impacts to owl’s use of burned forest.

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