Should Managed Fire Get its Day in Court? Pros and Cons

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We have been discussing the rather murky relationship between fire use and FS enabling legislation, plus where in the decision tree NEPA should reside.  Certainly, as Joe Reddan pointed out, someone could litigate in the hopes of either clearing it up, or showing gaps that Congress could clear up (if they ever get past partisan grandstanding).  Anyone could conceivably bring a case, and the topic has attracted the attention of a group of unlikely bedfellows from a variety of FS retirees to Sarah Hyden.  Jon and I don’t usually agree on anything NFMA plan-related, but we do agree about fire use amendments to follow NEPA.  For me,  a broad set of unusual allies like this is a policy Situation That Shouts Watch Out.

I wonder why our ENGO friends have not taken this topic up.  In a series on the Fix our Forests Act, Eric Bieber, a law prof at Berkeley and former Earthjustice attorney wrote:

My takeaway on the litigation changes is that their impacts are uncertain but on the whole likely marginal.  Again, I understand the motivations.  There are plaintiffs who are serial litigators against the Forest Service, challenging any kind of forest management project on ideological grounds.  But those groups are well-resourced and sophisticated.  They will seek to find favorable judges, and will probably be prepared to meet exhaustion requirements and short statutes of limitations.

My bold.  Perhaps MF is unchallengeable because by the time people become concerned, it’s too late.  But maybe folks’ ideologies are for MF ,but against other ways of managing fuels. Still, if Andy’s group can challenge the use of fire retardant generally, could some NGO challenge the use of MF? I don’t know the answer, but some legal minds out there might know.

Some critics might see the current situation as a fuel reduction maximization, litigation minimization, fuels bucks preservation strategy.   At first I thought that a trip through the court system could clear things up, but as JR (retired planning director) used to say “going to court is a crapshoot” so the risk of bizarre decisions probably doesn’t outweigh the possible reward. Maybe no one wants to roll those dice.

On my way back from the Retirees’ Reunion in Missoula, I listened to an audio of Amy Coney Barrett’s book “Listening to the Law.” It had been a very long time since I had thought about the Constitution and how it was developed (50 years or so, in high school). She was a law professor at Notre Dame before becoming a federal judge, so the book does have professorly leanings.  Note that she is the only Supreme Court Justice who attended a law school other than Harvard or Yale.

Somewhere in Wyoming I thought “I’m sure glad I never went to law school”.  Nevertheless, I think it’s good context for many of our current discussions, especially federalism.  She talks about the nuts and bolts of how the Supreme Court works, which certainly filled in many gaps in my own knowledge.

How this relates to the MF discussion.  Coney Barrett was a federal judge on the 7th Circuit before becoming a Supreme Court Justice, and she talks about all the kind of cases she had to deal with.. it was quite the laundry list (I don’t have a hard copy of the book or would list them here).  Point being, we have enough trouble understanding the complexities of our own tiny subfield of environmental law, and yet cases will be decided by judges who can’t possibly be experts in everything. I’m not arguing for a different system, I’m sure they do good work.  My point is simply that if we want a better system, we will probably have more luck developing draft statutes or regulatory schemes on our own.

An additional difficulty to all this as of now is the new Fire Service at Interior. Conceivably, whatever someone came up with for “how do we define MF- when does the decision take place and how do we count those acres?” “what kind of incentives should we have for MF” and “where does NEPA go?””what accountability mechanisms exist for decisions?” and “how is this reported to the public and to Congress?””what kind of situations make sense to use MF and which PF or mechanical treatment?” “how should NEPA folks and fire managers use which models in determining when and how to use MF?” – the answers to those questions should apply across all fire agencies that conduct MF.  I hope, when agencies are funded again,  folks will take advantage of this opportunity to develop a framework for all this.. before it gets thrown into the maw of the federal courts and is excreted in who knows what form. Of course, step 1 would be giving MF a name we can all use and being transparent about its use.

Finally, I ran across a court case (thanks to Nick Smith’s daily news round-up) in which a court looked at intentional firing operations that had been litigated, story by McGuireWoods.

The Court’s Reaffirmance and Clarification of the Legal Standard

The court reaffirmed that, under the Fifth Amendment, a plaintiff bears the burden of proving causation in a takings claim. Specifically, the plaintiff must demonstrate that, in the ordinary course of events and absent government action, the injury to their property would not have occurred. The court emphasized that this analysis requires consideration of the entirety of the government’s actions in response to the relevant risk and a comparison of the actual damage to what would have occurred had the government not intervened at all.

Importantly, the court clarified that the takings clause does not employ a “substantial factor” standard of causation; rather, the inquiry is whether the government’s actions were the cause-in-fact of the alleged injury.

Based on a four-day bench trial in December 2024, the court found that the plaintiffs failed to meet their burden of proof on causation. The evidence established that the Alice Creek Fire was ignited by lightning and fueled by severe drought, dry conditions and abundant dead timber. The fire’s progression was driven by extreme weather, including high winds and low humidity, which created red flag conditions and led to rapid, unpredictable fire spread and spotting prior to the government’s intentional burn operations.

The court found that, absent any government intervention — including not only the intentional burns, but also the construction of fire control lines and helicopter water drops — the fire would have continued to spread naturally, likely resulting in equal or greater damage to the plaintiffs’ property.

Testimony from the government’s fire behavior experts and incident commanders supported the conclusion that the government’s suppression efforts, including the intentional burn firing operations, were largely successful in protecting certain structures owned by the plaintiffs and did not cause the plaintiffs’ losses. In comparison, the court gave little weight to the plaintiffs’ reliance on fire spread probability models and infrared mapping, finding these tools insufficient to account for the actual weather and fire behavior that occurred during the relevant period. The court also noted that no expert testimony was offered to support the proposition that the plaintiffs’ property would have fared better had the government taken no action. Rather, the plaintiffs’ expert was only asked to provide an opinion concerning whether the firing operations were a “substantial factor” in causing damage to their property.

Implications for Other Wildfire Events

The McDonough decision underscores the high burden plaintiffs face in takings claims arising from federal wildfire suppression efforts. A potential implication of this decision could be when a private entity is alleged to have ignited the wildfire, but the government decides to use that fire as a controlled burn. For example, earlier this year, the Dragon Bravo Fire was ignited due to lighting, but the National Park Service decided to manage the fire as a controlled burn. Ultimately, the Dragon Bravo Fire burned over 140,000 acres and destroyed 113 structures, including the historic Grand Canyon Lodge, and one person reportedly died. After McDonough, the question remains whether the takings clause would provide any avenue of recovery for private property owners whose property is destroyed in a similar situation, when a private entity ignites the fire, and a government entity decides to let it proceed as a controlled burn to suppress its spread.

It seems like plaintiffs would always have difficulties finding someone expert enough to weigh in on  suppression tactics.  As the use of managed fire grows (it seems to, regardless of Admin), perhaps this area of law will become more developed.