What Part of “Fire!!!” Is An Emergency Didn’t I Understand?

Apparently all of it. In an unpublished (i.e., non-precedential) memorandum, the Ninth Circuit affirmed a lower court’s decision that forest fires are emergencies within the meaning of a Forest Service regulation that exempts actions taken in response from NEPA. Plaintiff’s argument that the adjacent National Park Service doesn’t agree and had prepared an EA assessing its future fire response actions was “immaterial.”

Perhaps, someday, the Forest Service will use NEPA to engage the public in planning its response actions to fire. In the meantime, quoting an earlier district court case, “[a]t least in the context of wildland fire suppression, NEPA review can not possibly be conducted at the site-specific level because of the emergency conditions in which the fire occurs, and to allow the agency to conduct site-specific NEPA review after the fire has already been extinguished is contrary to the purposes of NEPA.” California ex rel. Lockyer v. United States Forest Serv., 2005 U.S. Dist. LEXIS 14357, *35, 60 ERC (BNA) 2104.

4 thoughts on “What Part of “Fire!!!” Is An Emergency Didn’t I Understand?”

    • It would have looked like the North Cascades National Park’s fire management plan and associated EA, which guided NPS’s firefighting actions on the same fire.

      • The GMUG did this one in 2007 as an EA with a plan amendment that addressed WFU.
        So perhaps this has already happened ” Perhaps, someday, the Forest Service will use NEPA to engage the public in planning its response actions to fire.” Apparently the FS has.. it’s just a question of how often, how exactly, and where.

        Fire Use Plan Amendment – 2007

        2007 Fire Use Forest Plan Amendment modifies fire management policies which will allow fire managers to manage certain lightning caused fires for resource benefits on the GMUG National Forest, if prescriptive conditions are met.

        Decision Notice and Finding of No Significant Impact- Fire Use Plan Amendment – January 2007 (PDF, 55 kb)

        Map – Considerations for Suitable Wildland Fire Use (PDF,673 kb)
        Map – Lands Generally Suitable for Wildland Fire Use (PDF, 626 kb)

        Environmental Assessment for Forest Plan Amendment – 2007 (PDF, 218 kb)
        Appendix A Specific Amendments for Fire Use (PDF, 92 kb)
        Appendix B Fire Managemnet Plans and Land Management Plans (PDF, 13 kb)
        Appendix C Amendment Siginificance (PDF, 26 kb)
        Appendix D Fire Use Planning Process (PDF, 16 kb)
        Appendix E Fire Regime Descriptions (PDF, 40 kb)

        Here’s the link https://www.fs.usda.gov/detail/gmug/landmanagement/planning/?cid=fsbdev7_003229

  1. “FSEEE alleged that the Forest Service violated NEPA by not preparing an environmental impact statement (“EIS”) or environmental assessment (“EA”) prior to constructing a “community protection
    line” (“CPL”)…” I agree that NEPA is required “prior to” this decision. The problem is that it has to occur prior to the emergency. That means either the forest plan, or a separate fire plan. If that hasn’t been done, I think the FS violated NEPA. I think a better outcome of this case would have been for the court to require NEPA at the plan level now to address future fires.

    “That another agency has a high-level fire management plan in an area nearby to the location of the fire is not relevant to the actions of the Forest Service in dealing with an individual wildfire while it is
    occuring.” This may be true, “while it is occurring; however, FS should not be allowed to “create” the emergency by failure to plan. The relevance of the Park plan is that it anticipated the emergency. NEPA should require that where possible and this shows it is possible here.

    I would also assert that NFMA requires guidance for when and how to suppress fires or not (such as the GMUG amendment did), and that is the place to apply NEPA. The GMUG effort (and presumably ones on other forests) represents implicit recognition that they have to make this strategic decision to have the option of wildfire use, and that will require NEPA. Suppression, and its effects, has to be addressed concurrently at least as the no-action alternative. I’d also expect to see future revised forest plans provide at least as much guidance as the GMUG did in 2007.


Leave a Comment