Cut Them All Down

Over the weekend in Portland, Oregon, a 14-year-old volunteer with Friends of Trees was killed by a falling branch while planting seedlings in the Forest Service’s Sandy River Delta, a part of the Columbia River Gorge National Scenic Area.

The tragedy and the irony of this loss struck me hard. At a time when the U.S. Forest Service’s post-fire “hazard tree” logging is breaking the law up-and-down the Pacific Coast, what lessons should the Forest Service learn from this tragic event? Last month, for example, the Forest Service argued in court that because one “charred tree” took the life of an ATV rider in a Montana national forest, the risk associated with dead trees near roads warrants cutting them all down in Oregon’s Willamette National Forest. By that logic, the weekend’s Columbia River Gorge tragedy would counsel for cutting down all trees everywhere.

In this pandemic era, evaluating health and safety risk has become a political football (sorry, Green Bay fans). Republican governors have won a temporary injunction against the federal Nanny State’s imposition of vaccine mandates on large employers. Accusations and counter-accusations of COVID-19 misinformation have proliferated around the globe, many as “efforts to shape political debate.”

The Forest Service is not immune from the temptation to use health and safety misinformation to shape political debate. According to Dr. Travis Heggie, a world-class expert in backcountry safety (and former National Park Service Public Risk Management Specialist and Tort Claims Officer), the risk of being killed by a falling tree (whether dead or alive) while visiting national forests is minuscule. Yet, you wouldn’t know it from the Forest Service’s hyper-ventilative rhetoric around “hazardous” trees.

So before you venture out into the woods this weekend, consider these facts:

1) Falls while hiking or climbing are the leading cause of backcountry deaths (40%). Avalanches account for 15%, drowning incidents account for 10%, and heart attacks account for 10%. Deaths by tree fall account for 1% — same as deaths by bear attack.

2) You are much more likely to die where you live than while visiting our federal public lands. The National Park Service’s human mortality rate is 0.1 deaths per 100,000 recreational visits. This is much lower than the mortality rate of the overall U.S. population (844 deaths/100,000 people).

3) Trees do kill a substantial number of urban and highway road users – about 7,000 per year. Not as a result of trees falling on drivers, but because drunk/young drivers careen off roads into standing trees.

If you’re mature, as am I, use a hiking pole to prevent falling and to help clamber over down trees on and off trails. Don’t drive to the woods drunk nor swim or boat while intoxicated. Hang your food if camping in bear country. Most of all, enjoy our national forests, if the Forest Service is kind enough to let you in.

24 thoughts on “Cut Them All Down”

  1. Thanks for posting this Andy! I’ll give it a closer read later.
    But for now I say; Cut ’em all down and make parking lots! We’ll definitely be safer that way especially if folks ignore the risks of driving! lol

  2. In general a good post but “Nanny State’s imposition of vaccine mandates on large employers”? Mandatory vaccination is the ONLY way we’re going to get out of the Covid pandemic.

    Also “National Park Service’s human mortality rate is 0.1 deaths per 100,000 recreational visits. This is much lower than the mortality rate of the overall U.S. population (844 deaths/100,000 people).” Comparison makes no sense. Recreational visits and 100k people are not the same.

    But I agree with the main point – danger of falling trees is way “overblown”. It’s an excuse by forest industry to “get out the cut”.

    • The “Nanny State” at issue in the Republican Governors’ lawsuit is the federal, not the state, government. That’s a BIG difference when it comes to public health authority. As noted in this 2021 CRS report: “Except in certain limited circumstances, including in the immigration and military contexts, no existing federal law expressly imposes vaccination requirements on the general population.”

      The vintage Supreme Court case most often cited for the proposition that government can mandate vaccination, Jacobson v. Massachusetts, established that STATES enjoy constitutional authority to mandate vaccination. On the other hand, few, if any, legal scholars assert that the FEDERAL government enjoys the same constitutional authority. Instead, supporters of mandatory federal vaccine authority have tried to cobble together some sort of statutory basis, e.g., OSHA workplace safety rules. With its recent stay, the Fifth Circuit Court of Appeals has dealt that argument a likely lethal blow.

      Bad law is no less “misinformation” than is bad science. When the government relies on bad law or bad facts it undercuts people’s confidence in government decision making. Whether the danger is a viral pandemic or “hazard” trees, government decisions based on lies will always do more harm than good.

      • Well, thank you for explaining the difference between state and federal. That’s new info for me. On the rest, even if the Feds have to cobble together reasons why vaccination can be required, I’m still in favor of it. I think it best we just agree to disagree.

    • “Mandatory vaccination is the ONLY way we’re going to get out of the Covid pandemic.”

      Phil, that’s kind of true. We’ll probably get out of the most serious pandemic waves and spikes if almost everyone is vaccinated. But we will not be free of Covid for the foreseeable future, no matter how robust our vaccination rate is.

      Two examples of this:

      1. Portugal is one of the best-protected jurisdictions in the world: 86.4% of the population is fully vaccinated. It still had 13,716 Covid cases between October 28 and November 10.

      2. The Cal (U.C. Berkeley) football team is 99% vaccinated. Nevertheless, at least 44 team members and associated staff have tested positive for Covid in the last week.

      I’m all in favor of vaccination, though not necessarily every one of the proposed mandates. I’m vaccinated myself. But, given the foregoing, I wonder if I would test positive for Covid despite having gotten my booster and being fully vaccinated beforehand.

      3. We’ll see whether the federal rule for the private sector passes muster. One authority often cited in favor is Jacobson v. Massachusetts (1905) 197 U.S. 11. But that was, as noted elsewhere in this discussion, a state-law and local-regulation case, and states and localities enjoy what’s called the police power, i.e., the power to generally regulate for health and safety. AFAIK the federal government does not. But specific statutes or regulations may give it that power. Again, we’ll see.

  3. Andy, this is a great example of how people can look at the same thing and see things differently.

    You see “Forest Service claims safety and takes out lots of trees and it’s really about timber, in the name of safety”

    I see “every time there’s lots of dead trees, the FS has to have a plan for what they are going to do in terms of hazard trees.. in terms of litigation, OGC told us that we had to have some kind of plan, when we had bark beetle killed trees.

    So to me the issue goes simply to (1) “along which roads?” “why did the FS pick those?” (2) how do you determine if they’re dead enough to remove? and (3) how far do you go, tree-length wise?

    I’m sure that people disagree about all these things.

    To add to the complexity, if the FS was interested in implementing PODs along forest roads, there might be also specific veg management requirements.

    Finally, dead trees fall down, and if folks are driving roads they could fall down while they are in and many forest recreationists don’t carry chainsaws such that they could get out. This could also be a safety thing.

    So maybe the FS has not explained these additional concerns adequately, or maybe you don’t agree with where they came out on them.

    • “I see every time there’s lots of dead trees, the FS has to have a plan for what they are going to do in terms of hazard trees.. in terms of litigation, OGC told us that we had to have some kind of plan, when we had bark beetle killed trees.”

      OGC is wrong. There is no law that mandates the Forest Service take any action when it comes to public safety. That’s a sweeping statement, isn’t it? I throw it out there so that readers can educate me to the contrary. Ready, set, go for it!

      Here’s a thought experiment for you, Sharon. What are the circumstances that make a tree that falls in the woods hazardous? Can a healthy, live tree be hazardous, too?

      • At some point, the Forest Service may be found negligent for failing to abate a known hazard (I’m thinking of recent cases involving snowmobiling and flooding, but don’t remember the details or outcomes). A plan may be considered evidence the agency is taking a reasonable approach and should not be considered negligent. It’s probably not negligent when a random tree drops a branch (failure to require hard hats might raise that question a little), but maybe so where there is an attended campground with a visibly obvious threat from a tree.

        • Sovereign immunity answers any negligence concerns. The Federal Tort Claims Act’s limited exception to the federal government’s sovereign immunity protects an agency’s discretionary policy decisions from liability. For example, if the Forest Service chooses to protect old-growth forests for their myriad ecological values, and imposes upon itself no mandatory duty to tidy up the forest by removing “hazard” trees, then no liability for subsequent damages is possible under the law.

          In 1995, the U.S. Department of Justice retained me as an expert witness to testify on behalf of its client, the U.S. Forest Service, in a Federal Tort Claims Act case. Moyer v. State of Washington, et al., 3:94-cv-05181-FDB (W.D. Wash. 1995), dismissed on appeal at Moyer v. Washington State, 1997 U.S. App. LEXIS 893 (9th Cir. 1997). I agreed to testify without compensation because I viewed the case as a “camel’s nose under the tent” that pitted “public safety” against new old-growth forest protections adopted by the Northwest Forest Plan.

          The facts of the case are simple and tragic. While driving home on the Mather Memorial Parkway (a paved highway) from a day of skiing in Washington’s Mt. Baker-Snoqualmie national forest, a windstorm blew over an old-growth Douglas-fir tree crushing the passing vehicle and killing a mother and her two children. The victims’ estate representatives brought suit against the Forest Service because the tree was located on national forest land and against the State of Washington because the highway that ran through the national forest is managed by the state’s department of transportation.

          The tree was alive when it fell to the ground. A post-fall inspection revealed that its underground roots harbored Phellinus weirii (“laminated root rot”), an endemic native fungus associated with conifers that is ubiquitous in the Pacific Northwest. The combination of wind and the loss of structural root strength associated with the fungus is the likely cause of the tree’s fall, although wind alone can fell trees that exhibit no structural sign of defect. I was asked to testify regarding the forest policy decisions the Forest Service had made to manage the land on which the tree was located.

          My testimony supported the argument, with which the court agreed, that the Forest Service “was required to consider not only highway safety, but other factors, including: the preservation of the old-growth forest lining the
          roadway; protection of the Spotted Owl, which resides in the forest; and the various recreational uses of the forest.” Moyer v. Washington State, 1997 U.S. App. LEXIS 893. Combined with the fact that there were no “guidelines directing the Forest Service to identify and remove hazardous trees,” the Forest Service was immune from tort liability under the FTCA’s discretionary function exemption.

          • Thanks for filling in the details. I agree that leaving roadside hazard trees is a low legal risk, but I maintain that your categorical rejection of the OGC advice is overstated because there are some federal actions that are not protected by the Tort Claims Act. And even falling tree cases have been close calls. Some language from a case where a district court opinion went against the Park Service (reversed by the circuit court) that mentions a “plan” like the one OGC advised:

            “After a bench trial, the district court entered a judgment for the plaintiffs, holding that the United States had negligently failed to (1) devise, implement and follow an appropriate tree hazard management plan; (2) properly maintain the National Park area; (3) properly inspect the trees in the National Park in the area where the accident occurred; and (4) identify and remove the hazardous trees which fell and struck Autery and Schreiner.”,27

            Here is a case where the Forest Service’s failure to warn of hazards at a waterfall subjected them to a negligence claim (based in part on its failure to follow its plan). The principle is: “Thus, a failure to warn involves considerations of safety, not public policy. It would be wrong to apply the discretionary function exception in a case where a low-level government employee made a judgment not to post a warning sign, or to erect a guardrail, or to make a safer path. Such a judgment would be no different than a judgment made by a private individual not to take certain measures to ensure the safety of visitors.”,27

            • What duty does the Forest Service have to provide for public safety in wilderness? “None” is a reasonable answer. Yet the Forest Service has closed currently thousands of wilderness acres to public access. Why? Because “hazard” (sic) trees. I can’t make any sense of it. Can you?

            • The NPS case is a good example of my point. It was only because NPS made a policy choice to put public safety first that it created, out of whole cloth, legal liability where none had existed before. Had NPS’s policies adhered to its Organic Act statutory mandate, it would have put first “conserving the scenery, natural and cultural resources, and other values of parks in a way that will leave them unimpaired for the enjoyment of future generations.”

              The Forest Service is now doing the same thing — putting public safety as its #1 priority, above its natural resource and multiple-use statutory mandates. The result will be more crazy decisions like closing wilderness areas because they are too dangerous.

      • So Andy, I looked around on the web for safety cases.
        So the FS can be sued for negligence… not a good thing, even if they win. I think (remembering back during the bb epidemic) OGC’s point was that if we had a plan and worked the plan and the plan made sense, the FS would be covered, because we could never possibly remove all the hazard trees. Maybe they were overly cautious, I’m not a lawyer. Maybe my memory is off or I’m missing an important detail. Maybe someone out there remembers?

        I also ran across this case in which the judge apparently said that plaintiffs had standing.. I don’t really understand the ins and outs of why…

        All that being said, I think at the base you disagree with the FS not about probabilities of injury, but about which roads, where and how much to treat. And whether roads should be closed if hazard trees are not removed.

        • “I think at the base you disagree with the FS not about probabilities of injury, but about which roads, where and how much to treat.” I don’t know if we disagree about “probabilities of injury” because the FS has never stated what it believes the probabilities of injury to be. ALL of the empirical evidence, as summarized by Professor Heggie, show the probability of injury from falling trees is VERY, VERY low.

          It would sure be nice if the Forest Service considered the probability of injury when it decides whether to cut trees. However, at the present time it does not.

          • I don’t think DOT considers probs of injury of trees falling either.. they just don’t want trees falling on roads that need to be cleared in several hundred trips instead of one.. or that trees can be road hazards until they get cleared out.. Not just the moment of tree/car impact. In the case of FS roads though, the FS doesn’t have the people to go in and clear them whenever a tree blocks a road, and that can indeed lead to safety problems if people without chainsaws are stuck and can’t get through. It could be argued that repeated trips to ensure passability would use more fossil fuels and would be worse for climate than dealing with them once.

  4. Just for the record, yes, I have left dead trees standing next to roads in hazard tree projects. Those trees had such a lean to them that there was no way the tree could ever fall on the road. There are so few of those that I felt it was a good thing to ‘put them on display’, as examples that we were doing what we said we would do. I do know that others might want to cut those trees “as long as we are here”. I thought it was more important to ‘walk the talk’.

    • Larry, you remind me that there’s yet another set of considerations.. how much latitude/judgment should the FS leave to employees/contractors to make determinations of safety? If specs are more prescriptive (get them all on the ground) then that’s not good; but workers/contractors could have a wide interpretation of anything less prescriptive. So there are those tensions associated with contract language.. how likely is it given certain contract language, that the work will be done as envisioned?

      • The marking guidelines specifically mentioned that such trees that do not constitute a hazard would not be felled. Some timber sale administrators might decide they want to see that tree gone, especially when, after felling, you cannot tell which way it leaned.

        There is plenty of leeway in deciding if a tree is hazardous, or not. Most TSAs are very aggressive concerning hazard trees. Yes, some even push it too far, IMHO. An ancient ponderosa pine with a bleached-white spike top isn’t really a hazard. Same for a pine that has an old skidding scar at the base. The best rule of thumb is; Will it fall in the next 10 years?

      • An additional consideration is worker safety. Every contract includes OSHA content. However, Forest Service people cannot specifically enforce the State’s OSHA rules. There are public safety laws that are enforced within the project areas, though.

  5. Sorry to say I only skimmed the comments posted so far but I get the gist of the different perspectives.

    To add to the complexity, what about when a hiker sits next to a large, dead standing tree for lunch? Woosh, all of a sudden the large plates of bark let loose and the hiker is clobbered by the pile of bark.
    Who’s liable then? Should we cut down all standing dead trees with loose bark? Especially those at places where hikers are likely to stop for lunch?
    This can easily go to the point of ridiculous!

    People accept risks every day by driving the freeway to work or to a trailhead, smoking cigarettes, not wearing a seatbelt, going rock climbing, etc., etc.!
    Personal responsibility comes into forest recreation and life and people need to accept that fact and deal with it!

  6. Andy,

    To your point in this post about all the closed National Forests. Well, that is the way things work now. As others have pointed out, the FS is damned if they do, damned if they don’t. Do, and people are mad about being kept out. Don’t, and when someone gets hurt, here come the lawyers and lawsuits.
    Really, it is not different that lawsuits and more that keep say mountain bikers out of a trail network for some reason, snow mobiles out, or precludes the restoration of a historic fire lookout that happens to now be in a wilderness area, or stops road upgrading and maintenance to allow access to wilderness hiking, instead of forcing hikers to walk an extra long ways – that last one being to access the Glacier Peak wilderness, and raises the question of ‘wilderness and recreation for who? Those wealthy enough or with nice enough jobs to take extended time off? Or for everyone?’. And of course let us not forget resource extraction, or the disbarment of it.

    If all of those things are ok to keep people out, then closing a forest after a fire in the name of public safety (damned if you do, damned if you don’t) is swept up in that as well. Sadly, not a lot of room for shades of gray in the world anymore, so black and white it is.

  7. How about we call it a timber sale? How about the FS decides to harvest about 1/2 of one percent or less of the merchantable timber that was killed in the fire? Then the FS could concentrates the timber sales along the roadsides. Is it acceptable to harvest any timber after a fire? “Let’s cut it all” is exaggerating the situation I think.


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