Practice of Litigation Friday: Fire in Pacific Fisher Habitat

U. S. Fish and Wildlife Service

This recently filed case (the complaint is at the end of the article) hasn’t generated a lot of news coverage, but it directly raises some of the questions we have discussed at length about the effects of fuel reduction activities.

On March 26, 2021, three California conservation groups filed a complaint for declaratory judgment and injunctive relief against the Forest Service and Fish and Wildlife Service in the federal district court for the Eastern District of California (Unite the Parks v. U. S. Forest Service).  They are challenging, “the failure … to adequately evaluate, protect, and conserve the critically endangered Southern Sierra Nevada Pacific fisher … on the Sierra, Sequoia, and Stanislaus National Forests …” after a substantial reduction in habitat since 2011 resulting from a multi-year draught, significant wildfires and Forest Service vegetation management.  Many of the variables considered in a prior 2011 analysis have been adversely affected by these changes. The plaintiffs implicate 45 individual Forest Service projects.

This fisher population was listed as an endangered species on May 15, 2020, and the agencies conducted “programmatic” consultation at that time on 40 already-approved projects.  The agencies reinitiated consultation because of the 2020 wildfires, but did not modify any of the projects.  The purported rationale is that the short-term effects of the vegetation management projects are outweighed by long-term benefits, but plaintiffs assert, “There is no evidence-based science to support this theory…,” and “the agencies ignored a deep body of scientific evidence concluding that commercial thinning, post-fire logging, and other logging activities conducted under the rubric of ‘fuel reduction’ more often tend to increase, not decrease, fire severity (citing several sources, emphasis in original).  The complaint challenges the adequacy of the ESA consultation on these projects, and the failure to “prepare landscape-level supplemental environmental review of the cumulative impacts to the SSN fisher…” as required by NEPA.

Not mentioned in the lawsuit is the status or relevance of forest plans for these national forests, two of which (Sierra and Sequoia) are nearing completion of plan revision.  However, the linked article refers to an earlier explanation by the Forest Service that they would not be making any changes in the revised plans based on the 2020 fires because they had already considered such fires likely to happen and had accounted for them.  ESA consultation will also be required on the revised forest plans, and should be expected to address the same scientific questions, arguably at a more appropriate scale.  Reinitiation of consultation on the existing plans based on the changed conditions should have also occurred under ESA.  (This is another area where legislation has been proposed to excuse the Forest Service from reinitiating consultation on forest plans, similar to the “Cottonwood” legislation that removed that requirement for new listings or critical habitat designation.)

(And in relation to another topic that is popular on this blog, Unite the Parks also supports the establishment of the Range of Light National Monument in the affected area.)

18 thoughts on “Practice of Litigation Friday: Fire in Pacific Fisher Habitat”

  1. Fire only burns fuel. If the fisher dose not have habitat it could be because the environmental groups have tied the hands of the people capable of thinning over story and understory. Therefore reducing catastrophic wild fire mortality. Increasing habitat for all sorts of wildlife including the fisher. Any removal of forest products reduce fuel for fire. Removing forest products or “ fuel “
    Also prepares left behind timber and vegetation for drought. If fuel is not removed the forest will burn sterile and then there is not any wild life.

  2. The Sierra and Sequoia National Forests are really a lost cause. Yes, there might be some areas that might still be overcrowded and unhealthy but, most of the old growth is now kindling. Besides the ample fuels, the terrain doesn’t lend itself to firefighting, either. More Creek Fires are inevitable. Is someone going to intervene on behalf of the giant sequoias, or are we going to let ‘whatever happens’, happen?

  3. Hi Jon,

    Thanks for sharing your perspective of our case. I am one of the attorneys of record. There’s a second story posted about the case, which more specifically addresses the recent science that suggests that thinning and fuel reduction makes fires burn faster and hotter:

    But to directly address the scientific questions about this, here is a synopsis, and I’ve provided a link to the most relevant case documents, including the expert declaration from atmospheric physicist Dr. Joseph Warne:

    Current wildland fire models are flawed because they don’t account for atmospheric effects that result from the removal of ladder fuels and fuel reduction thinning, which lead to increases in windspeeds, fire spread, and fire intensity.

    Recent findings about flawed wildland fire models are reported by atmospheric physicist Dr. Joseph Warne. See Dr. Warne’s declaration from Unite the Parks v. U.S. Forest Service, No. 1:21−CV−00518 (E.D. Cal. April 21, 2021) (see link at end).

    • When ladder fuels are removed, ground-level windspeed and turbulent mixing both increase, leading to faster fire spread and greater oxygen-transport efficiency; this, in turn, results in increased fire intensity.

    • In many cases this aerodynamic effect is more important than the fire-dampening effects of the fuels reduction being evaluated.

    • Two recent studies demonstrate just how consequential neglecting canopy wind-drag effects can be, leading to potentially disastrous results if aggressive ladder-fuel removal is applied. See Atchley et al. 2021, and Banerjee et al. 2020 (attached to declaration).

    • Both papers demonstrate that the removal of ladder fuels reduces the sub-canopy wind drag, ultimately leading to increased fire spread.

    • In other words, they both show how fuels-reduction treatments can increase fire spread, which is the opposite of what currently-used operational model studies predict.

    • Furthermore, the Banerjee et al. 2020 paper goes further and also shows that aggressive ladder fuel removal increases the likelihood of overstory crown fires compared to more modest ladder fuel reductions, which is again opposite to operational model-run predictions.

    • Other recent studies also confirm these findings. Coen et al. 2018 (attached to declaration) demonstrate that drought and fuel load were secondary effects compared to fire-induced atmospheric motions, which operational fire-behavior models neglect.

    • Bradley et al. (2016) (attached to declaration) analyzed satellite data for 1500 fires from 1984 to 2014, affecting 23.5 million acres of forestland. Their results show that the more heavily forestland is managed, the more severely it burns, and the least-managed land (i.e., our National Parks and Wilderness Areas) are the most firesafe.

    Summary and Conclusion:

    • By omitting atmospheric dynamics and wind-drag effects associated with vegetation treatments, fuels reductions designed to reduce fire intensity and fire spread are undoubtedly producing the opposite effect.

    • Given recent trends in California of ever-increasing fire size and severity, the desire to take decisive action to make things better is understandable. However, if our actions are ill-informed by flawed application of operational fire-behavior models, they are guiding us to make an already dire situation worse.

    • Until we fully understand the consequences of the actions we take, no action is preferred, and current vegetation treatments should be halted.

    Case files:

    • Unlogged areas close to the ignition point of the Camp Fire burned quite well. Nothing survived. The Camp Fire showed us that 60 mph winds pushing a wildfire will burn ANYTHING.,-121.4780289,282m/data=!3m1!1e3?hl=en

      Pictures show that the Creek Fire had minimal winds on it for the first day or two. The pictures showed a perfectly vertical mushroom cloud, which also indicated that a “column collapse” caused much of the severity. I’ve seen the area of the Rim Fire where a similar thing happened. Large trees were sheared off from the 70 mph downdraft. Fire was pushed for miles in all directions.

      There was also the major tragedy of hundreds of ancient sequoias dying. Is logging to blame for those, too? Why did those unthinned forests die?

      I’m also pretty sure that some areas reburned, after the easterly winds came up. Personally, I don’t believe the ‘evidence’, trusting my own experiences on many fire salvage projects. The Rim Fire had some examples of commercially-thinned plantations surviving. Finally, if tree density controls fire behavior, how come historical forests prior to Europeans didn’t burn to a crisp. (Of course, we know that native burning kept the fuel-loading down.) Additionally, comparing burned private timberlands (Overstory Removal) with burned Sierra Nevada thinning projects is disingenuous.

      Hanson consistently ignores essential factors, pretending that such facts don’t matter, or are ‘beyond the scope of the study’. There’s just too many holes in such studies. We need objective studies, and some people who study have problems being objective. Excluding important facts, including the many human impacts, renders some studies useless.

      • Larry,

        I don’t think any the scientists or studies are saying that natural unlogged forests don’t also burn at high severity. They do, but the percentage of high-severity fire in natural areas is generally lower than in a managed landscape, according to Bradley et al. (2016). And yes, even natural stands of giant sequoias burned at high severity in the Castle Fire on the Sequoia NF. Although tragic, they are fire adapted and many of the trees may survive. One only needs to look at the massive burn scars on the various old giants to see how much fire they have and can endure.

        I didn’t actually mention Dr. Hanson in my response, but since you did and you mentioned the Creek Fire and its aftereffects, let me share some data with respect to the Creek Fire from an analysis Dr. Hanson has done. His findings are consistent with those in the papers cited by Dr. Werne, and show that the Creek Fire also burned the highest percentages in the managed landscape when compared to more natural areas that weren’t thinned. You can review his summary report at the following link:

        • Conclusions to preserve the flammable understory are not supported by logical science. We MUST admit that human-caused wildfires are inevitable. Using SMZ’s (Streamside Management Zones) in comparison to managed (by who?) stands isn’t a valid comparison. Frankly, it is wildly biased. If you are going to point at Forest Service lands in conclusions, you MUST NOT use private timberlands in comparison. We all know that private timber companies take fire-resistant old growth, leave lots of slash, and use flammable understory trees for stocking purposes (or use clearcuts). It’s a HUGE departure from what the Forest Service currently does.

          Just because the USFS can cut trees between 20 and 30 inches in diameter, it doesn’t mean they cut large amounts of them. Additionally, most of those trees are defective white firs cut, while larger fire-resistant pines get more room and water to thrive. Preserving ALL the merchantable trees does not mitigate the real-world drought much.

          The science says that overcrowded forests suffer from enhanced drought, weakening the entire stand and making it very susceptible to bark beetles. We’ve already seen that in action, with vast amounts of dead old growth in the southern Sierra Nevada. Just look at the GSNM. THAT is a trainwreck, right now.

        • The Hanson paper uses soil burn severity, and not fire severity to make his case here. I know for a fact that the initial Burned Area Reflectance Classification (BARC) imagery was adjusted upward to reflect a higher degree of soil damage for the soil burn severity map relative to what the BARC imagery was indicating. Therefore, the soil burn severity (SBS) map would not be an ideal measure of vegetation damage/loss, as it would overpredict fire severity I think Hanson has been criticized for using SBS maps like this before.

    • Interesting studies Rene, I’m no fire expert but everything I’ve learned in forestry school and in my profession suggests there is a consensus that fuel breaks are effective at altering fire behavior. One large scale review which looked at their effectiveness and found the same is here:
      You mentioned the idea that opening the canopy increases forest floor temperatures and wind speeds and thus increases fire behavior and fuels curing. It’s an interesting idea that makes intuitive sense, however this paper shows that at least in interior California pine forests, fuels in treated and untreated areas had no difference in moisture: This is an area that likely needs more study, as forests with different climates may have different fuel behavior.
      Regardless I would say that despite your sources which have found otherwise, managers and scientists operate off of a larger consensus as opposed to individual studies, which always have variation in their results. And the consensus is that fuels treatments are effective at altering fire behavior.

      • Cameron,

        What these new analyses are saying is that fuel treatments, which may be effective under certain limited conditions, are not as much of a factor in most conditions and can actually increase fire spread and severity. These are new findings, and I’m sure there will be lots of push back, but these findings can’t be ignored.

        Also, there is nothing inconsistent in these new findings with those in both the Tamm review and the Estes moisture analysis. Tamm’s thin+burn findings are something we can actually support, but you don’t have to remove anything larger than 10 inches in diameter (and likely much smaller) to safely and effectively conduct a prescribed burn that will effectively deal with fuels for a few years. But instead, the thinning/fuel reduction treatments take out trees up 24 and even 30 inches in diameter, which is done only for financial reasons. With respect to the Estes study, I didn’t actually mention fuel moisture changes and increasing forest floor temperatures by opening up the canopy. And the Estes study does not deal with increased wind speeds. The analysis by Dr. Werne and the studies he cites are not inconsistent with that study. His analysis does deal with wind speeds, friction, and fire spread rather than fuel factors.

        The point is that the old models simply do not consider the increased wind speed factors, which is why they don’t accurately predict fire effects and need to be adjusted. In fact, some of the leading scientists are actually looking at these issues to come up with better models. Stay tuned.

        • There is also the concept that these thinning projects have silvicultural purposes, too. There are multiple benefits to the current thinning projects. It is very important to match tree densities to current annual precipitation levels. We do see the results of preserving tree densities in a dry forest (like this patch within the Giant Sequoia National Monument).,-118.5562503,149m/data=!3m1!1e3?hl=en

          It is also good to adjust the species compositions to a more resilient mix, instead of preserving the flammable fir and cedar understories, as fuel for the next inevitable firestorm. Additionally, we can harvest the inferior trees, leaving more light and water for our future forests, instead of letting ‘whatever happens’, happen. If I were a lawyer for the Forest Service, I would be pushing those ideas to bolster the value of thinning projects, in the eyes of Judges.

        • I will agree that fuel models have their limitations, and I will keep my eyes on the journals to see if other studies replicate these findings. If so we may have to adjust our approach to fuels treatments. Until then, there is a consensus that we will continue to work with to treat acres. You mention your opposition to cutting larger trees, but I must admit as a private industry forester I see no issue with using timber to offset the costs of treating acres. This seems a much more effective technique then waiting for funding from the federal government or other sources. I’m sure you’ve hear about the i growth of white fir and incense-cedar in our California forests, and removing these species to favor pines makes great ecological sense, no matter their size.

    • Rene, models are useful for study and discussion, but they do not always represent the real world. Two photos offer an example: Treated and untreated on the Metolius Heritage Forest Demonstration Project on the Deschutes National Forest.

      Untreated stand
      Treated stand

      The treated (thinning and prescribed fire) area is across the road from the untreated area, with dense young pine and true fir amongst old-growth ponderosa pine. Which of these stands is more likely to burn at a high intensity? If your answer is the untreated stand, you are correct. Remove the ground and ladder fuels and you DECREASE the overall fire intensity.

  4. Rene,
    I just wanted to thank you for engaging in this discussion and providing a different perspective. Ecology is complicated by differences between ecosystems and fire ecology seems to be especially hard to understand because of all the factors involved, many of which only exist at the time of the fire and are hard to understand after the fact. The important point, that I think everyone can agree, is that reality is more complex that any cookie-cutter approach. In that context, providing more data and different perspectives can be very helpful to consider other approaches. Thank you!

  5. Thanks for that science discussion. The substantive question posed by this case appears to be what the long-term benefits of fuel treatments are (so that they could justify a conclusion that such benefits outweigh the adverse impacts of removing or degrading fisher habitat). If the arguments against such benefits are based on newly released research, that may pose a problem to plaintiffs for ongoing projects if the agencies were not presented with an opportunity to consider that information (which would allow a court to review whether and how the agencies considered it). That may make the “failure to act” NEPA claim a little harder for the plaintiffs to make than challenging the consultation actions under ESA that were completed in 2021. However, ESA consultation is usually not a process where the public could raise questions about new research (though arguably the agencies should know about it). Things like this make me think that the scientific arguments may not be squarely addressed until the forest plan revision process (which would also have to address the overarching question of species viability, as the compliant alludes, in light of the changed conditions). I’m staying tuned for that one.

    • But if forest plan revision processes are the place to address scientific arguments, and they happen once every 30 years, isn’t this a problem in terms of keeping up with science?

      • Hi Sharon,

        That’s what the amendment process is for. For example, the previous Sierra Nevada forest plans have been amended at least 4 times after major policy or environmental changes since 2001.

    • Hi Jon,

      The “failure to act” NEPA claim does not depend on these newer scientific findings, since the Forest Service simply never considered the cumulative effects from the drought and fires on the fisher, meaning no supplemental NEPA was ever done. With respect to the newer fire science and the ESA claim, the Forest Service is required to apply the best available science, but the studies they rely on simply don’t say what they claim, and FWS simply rubber stamped those opinions; whereas both previous science and the newer science say that the Forest Service’s long-term approaches to fisher conservation don’t add up.

      Finally, it appears that the Forest Service has now already decided not to revise or update the forest plans or NEPA analysis after the Creek and Sequoia Complex Fires, asserting that their analysis already considered that events like these were factored into their analysis. While that is not part of our case, I think that’s a mistake, and it likely could be legally suspect. Of course, the forest planning process will require an objection process, and depending on the outcome of our case, may need to be reconsidered again.


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