The law of fire: reshaping public land policy in an era of ecology and litigation.

• Author: Keiter, Robert B.

1. INTRODUCTION II. UNDERSTANDING FEDERAL WILDFIRE POLICY A. Fire Policy in Historical Perspective B. Charting a New Course C. The Terms of the Debate. III. THE LAW OF FIRE A. Organic Legislative Provisions and Site-Specific Statutes B. Environmental Law and the Healthy Forests Initiative C Healthy Forests Restoration Act of 2003 D. Tort Liability, Compensation, and fire Policy. E. Federalism: State Law and Federal Fire Policy IV. PUTTING FIRE, FORESTS, AND LAW IN PERSPECTIVE A. Fire Law and Policy Revisited B. Unraveling the Intertwined Issues C. A Law of fire Aborning: Toward Greater Integration and Accountability V. CONCLUSION I. INTRODUCTION

   Wildfire plays a central role on western public lands. Whatever its origin, fire has preoccupied federal land management agencies from their earliest days, just as it has long traumatized rural communities, engendered contentious political and scientific debate, and placed an enormous recurrent drain on the federal treasury. Today is no different. A spate of record-setting fire seasons have seen millions of acres burned, hundreds of homes destroyed, numerous lives lost, and multi-million dollar fire suppression bills. Los Alamos was engulfed in flames during 2000, the states of New Mexico, Colorado, Oregon, and Arizona suffered their worst fire seasons ever in 2002, and southern California went through the same in 2003. (1) As a result, wildland fire policy has once again come under scrutiny. But the terms of the debate are different today, focusing on forest ecology, wildland urban interface problems, catastrophic fire threats, and legal gridlock concerns.

   Federal fire policy has undergone a remarkable transformation over the past several decades, just as ecology has assumed a more prominent role in public land management policy. (2) Historically regarded as an evil and destructive force, fire has gained new respectability as a vital ecosystem process. Even before the spectacular 1988 Yellowstone fires burned widely across the park landscape, (3) agency officials were allowing lightning-ignited fires to burn unchecked in backcountry venues in an effort to reestablish a more normal fire regime after more than a half century of near total fire suppression. (4) The Yellowstone firestorm introduced the American public to this important policy shift, which was eventually reconfirmed after the smoke and early recriminations faded. By the mid-1990s, following yet more harrowing fire events, the federal agencies formally acknowledged that fire was an important ecological process on the public lands and that prescribed fires would be allowed to burn, so long as they did not endanger human lives or property. (5) The question, in this new age of ecology, was no longer merely how to suppress fire, but also how to accommodate, control, and use it.

   Curiously, though fire management policies are in flux, the law has surprisingly little to say about wildfire. To be sure, Congress has long given the public land management agencies the basic legal authority to control fire on federal lands. (6) Congress also adopted the Healthy Forests Restoration Act of 2003, (7) while the Bush Administration, under the rubric of the Healthy Forests Initiative, has implemented controversial administrative reforms designed to expedite fire control efforts. (8) But otherwise the law of fire on the public domain is an uncoordinated and fragmented welter of organic statutory provisions, environmental protection mandates, annual budget riders, site-specific legislation, judicial decisions, policy documents, management plans, and diverse state statutory prohibitions. Tempting as it is to characterize the sum of these laws as greater than the individual components, this would attribute far too much foresight to Congress or the agencies. The simple truth is that the law does not comprehensively address fire policy on the public lands, (9) even though fire management may now claim more agency attention and resources than any other single matter. Yet, paradoxically, it is gospel that the current fire crisis is fueled by too much--not too little--law and litigation. (10)

   This article explores the relationship between law, fire, and resource management policy on the public lands. It begins with an overview of federal fire policy, not only describing the evolution of fire management policy on the public lands but also examining how the current forest health debate has shaped policy options. The article then reviews the legal framework governing fire policy on public lands, focusing on relevant organic legislation and site-specific statutes, the interface between environmental law and fire management including recent administrative reforms, the Healthy Forests Restoration Act of 2003, tort liability and other compensation doctrines, and the role of state law in shaping federal policy. The article concludes by placing the fire policy debate in a broader public land policy context and by identifying potential legal reforms to better accommodate fire on the public domain.

2. UNDERSTANDING FEDERAL WILDFIRE POLICY

   1. Fire Policy in Historical Perspective

      Fire has shaped the western landscape, and so has its exclusion. Before European settlers arrived on the scene, fire was ubiquitous across the region. Lightning-ignited fires followed seasonal and climatic patterns, burning intensely during the dry summer months and periods of extended drought. The region's native inhabitants employed fire as a tool for agricultural, hunting, and military purposes. (11) Well-acquainted with the use of fire, the early settlers set fires to clear land for agriculture, promote soil productivity, and create buffers against rampaging wildfires. As settlements proliferated and towns grew in size, runaway fires posed a constant threat, exacerbated by the coming of the railroads, which spewed burning embers from coal-fired locomotives and sparks from the metal tracks. (12) Though communities regularly banded together to fight fires, they often lacked the resources necessary to control these blazes.

      Once Congress decided to begin reserving the region's forest lands, (13) the federal government soon found it had a fire problem. Local inhabitants turned to federal forest officers for protection against wildfires, fearing that the new forest reserves, along with the nascent national park system, posed an unacceptable fire risk. Charged with conserving timber resources and watersheds, (14) the new Forest Service viewed wildfire as a significant threat to its mission. Charred forests meant no timber, while burned-over hillsides triggered landslides and other erosion problems that threatened precious water supplies. The agency's initial internal charter--the so-called Use Book--summarized the fire problem:

      Probably the greatest single benefit derived by the community and the nation from forest reserves is insurance against the destruction of property, timber resources, and water supply by fire.... The burden of adequate protection can not well be borne by the State or by its citizens ... for it requires great outlay of money to support a trained and equipped force, as well as to provide a fund to meet emergencies. Only the Government can do it, and, since the law does not provide effective protection for the public domain, only in the forest reserves can the Government give the help so urgently needed. (15) Forest rangers had "no duty more important than protecting the reserves from forest fires," (16) and they were enjoined that "after every electric storm a special effort is needed to locate and extinguish any such fires before they are well under way." (17) Congress agreed and promptly established a unique open funding process that essentially gave the agency a blank check for its firefighting efforts. (18)

      Nonetheless, fire was not uniformly condemned. Settlers continued to use fire as a land management tool, and light burning advocates cautioned that fire was an essential element in shaping the region's forests. (19) Even the Use Book acknowledged that settlers would continue utilizing fire, instructing forest officers to use "the utmost tact and vigilance" in making "it well understood that [forest] reserve interests will be protected by every legal means." (20) Any notion that fires may be beneficial either for human purposes or for the environment, however, vanished in the smoke of the 1910 fire season when hundreds of lightning-ignited fires erupted into giant conflagrations across northern Idaho and northwestern Montana, leaving over 3 million acres charred, 85 people dead, and several towns in ashes. (21)

      Traumatized by its inability to control these blazes, the new Forest Service embraced a blanket fire suppression policy. Although light burning proponents in California and elsewhere continued to argue that fire could serve beneficial purposes (both in maintaining resilient forest ecosystems and safeguarding against catastrophic fires), the Forest Service adopted a fire exclusion policy that treated every fire, regardless of its source or location, as a threat and subject to extinguishment. Legislation like the Weeks Act of 1911 (22) and the Clarke-McNary Act of 1924 (23) promoted cooperative federal-state firefighting agreements and provided federal funding to finance these arrangements. (24) Any effort to reinstitute light burning was resisted actively, as were calls for scientific studies to examine whether fire might play a beneficial role in forest health. In fact, the Forest Service suppressed several research studies that seemed to endorse the use of prescribed fire in the southern pine woods. (25)

      But for several decades, the suppression policy existed more in name than reality. With backcountry venues relatively inaccessible, the Forest Service necessarily confined its firefighting efforts to readily accessible front country areas where valuable timber was visibly at risk and where adjacent landowners sought federal...