The healthy forests initiative: unhealthy policy choices in forest and fire management.

• Author: Davis, Jesse B.
• Position: Public Lands Management at the Crossroads: Balancing Interests in the 21st Century

1. INTRODUCTION II. BACKGROUND ON THE CURRENT FOREST HEALTH CONTROVERSY A. The Source of the Problem: Exclusionary Fire Management B. Development and Ascendancy of "Comprehensive" Fire Management III. THE INITIATIVE'S REGULATORY CHANGES A. Streamlining Forest Service Notice, Comment, and Appeal Regulations 1. A voiding Administrative Appeals by Authorizing Direct Final Agency Action 2. Restricting Who May Appeal 3. Expanding the Definition and Effects of Emergency Situations B. Streamlining Department of the Interior Regulations C. Categorically Excluding Forest Management Decisions from NEPA Analysis 1. Categorical Exclusions for Fire Management Activities 2. Categorical Exclusions for Timber Harvests 3. Redefining Extraordinary Circumstances D. Streamlining Endangered Species Act Consultation Requirements E. Overhauling the Northwest Forest Plan to Increase Timber Harvest IV. THE HEALTHY FORESTS RESTORATION ACT OF 2003 A. Planning, Prioritizing, and Funding Hazardous Fuels Treatments B. Streamlining NEPA Environmental Analysis C. Public Involvement and the "Special Administrative Review Process' D. Judicial Review 1. Limiting Venue and the Statute of Limitations for Appeals of Fuels Projects 2. Expedited Review and the Standard for Injunctive Relief V. CONCLUSION I. INTRODUCTION

   The origins of the Healthy Forests Initiative (Initiative) (1) lie in a century of forest management policy which has produced a modern wildfire crisis. (2) This crisis, as a veteran of the United States Forest Service (Forest Service) has said, "stems in good part from the policy of fire exclusion inaugurated by the early Forest Service to make public lands safe for growing 'trees as a crop.'" (3) In 1935, the agency instituted its "10 a.m. Policy," under which all new fires were to be controlled by midmorning on the day after they were reported. The 10 a.m. Policy has been described a "paramilitary campaign" against wildfire. (4) Indeed, this campaign proved quite successful in preventing timber losses to wildfire, with annual average acreage burned by wildfire in the western United States dropping from an estimated 30 million acres in 1900 to less than five million acres between 1935 and 1979. (5) The consequence of this success was a gradual buildup of forest fuel loads, which has since fueled more frequent severe and catastrophic fires. (6) In 1979, annual fire acreage in the western United States began to climb, despite rapidly rising government spending on fire suppression. (7) Reacting to this trend, fire policy in 1995 shifted from strict fire suppression to a more comprehensive approach, in which managers used a combination of mechanical thinning, prescribed fire, and selective fire suppression to remove forest fuels to reduce the likelihood of severe wildfires, loss of life and property, and damage to soils and wildlife habitat. (8) Despite these changes, severe fire seasons continued through the 1990s, as well as 2000 and 2002. In August 2002, while touring the aftermath of the Biscuit Fire in southern Oregon, President George W. Bush offered a response to the increased severity of wildland fire danger: the Healthy Forests Initiative.

   By embracing a proactive approach to reducing private and public resource losses to wildfire, the Initiative followed the path of the 1995 Federal Fire Policy. It substantially departed from all previous policy, however, by emphasizing and favoring mechanical hazardous fuels reduction--collaboratively planned and approved by federal, state, and local officials and local stakeholders--over prescribed fire. (9) It also stressed that fuels reduction should result in "community assistance," primarily through the economic benefits of marketing fuels reduction "by-products," including commercial timber. (10) Notably, the Initiative set out to do this quickly, bemoaning administrative appeals and litigation and asserting that these procedures delay and prevent removal of combustible forest fuels. (11) Recent studies, however, show that these delays are hardly substantial, as nearly 80 percent of them are resolved within 90 days. (12) Nevertheless, the Initiative proposed a controversial administrative and legislative agenda aimed at simplifying and expediting implementation of fuels reduction and other forest management projects, and increasing timber harvest.

   Finding appeals of forest management decisions "complex, time consuming, and burdensome," (13) the Forest Service adopted regulations altering notice, comment, and administrative appeals for projects and activities (14)--including fuels reduction projects and timber sales--which implement land and resource management plans developed pursuant to the National Forest Management Act (NFMA). (15) The United States Bureau of Land Management (BLM) adopted similar regulations. (16) The Initiative then targeted the environmental analysis and documentation requirements of the National Environmental Policy Act (NEPA) (17) for thinning projects, timber sales, and salvage operations. (18) Citing Forest Service complaints about "excessive analysis" of forest projects, (19) the Forest Service and BLM developed new categorical exclusions from NEPA analysis for fuels reduction activities (20) and for certain timber harvests. (21) The Initiative also developed an alternative to informal consultation under section 7 of the Endangered Species Act (ESA), (22) allowing agencies carrying out fire management activities to avoid any consultation. Collectively, these administrative changes greatly increase the discretion of management agencies by shortcutting procedures that Congress, through NEPA, NFMA, and the ESA, has prescribed to help agencies make the best decisions.

   The Initiative also invoked the timber projections of the 1994 Northwest Forest Plan (Plan) (23) as one of its substantive components. The Initiative adopted the Plan's timber production objectives--which have never been realized--but not its original species conservation strategies, most notably the survey and manage rules (24) and its aquatic conservation strategy, (25) which the Bush Administration would later rescind or significantly weaken. (26) Conservation groups fear that the combined effects of these administrative changes will be a boon to the timber industry, allowing timber sales to proceed under the guise of wildfire safety, while reducing the public's ability to influence or appeal them. (27)

   The Initiative has also produced legislation to fund and expedite fuels reduction projects. On December 3, 2003, President Bush signed the Healthy Forests Restoration Act (HFRA) (28) into law, probably the most significant forest management legislation since the National Forest Management Act of 1976. For selected fuels reduction projects, the HFRA authorizes diluted NEPA requirements, abbreviated administrative review, and deferential judicial review. (29)

   This Comment examines the Initiative and its potential consequences for public lands management. Part II briefly describes how public forests arrived in their current condition and explains how wildfire management policy led to the Healthy Forests Initiative. Part III discusses the role of public participation and administrative appeals in the land management process, and explains how the new regulations may insulate not only fuels reduction projects, but all projects on public lands, including timber harvest, from public participation. It also explores the Initiative's significant changes to the Northwest Forest Plan in pursuit of increasing timber production. Part IV discusses the Healthy Forests Restoration Act's substantive provisions and their effects on judicial review and the operation of NEPA. The Comment concludes that the Healthy Forests Initiative is an irresponsible and ill-considered exercise in land management, arising from political and economic considerations and unsupported by sound scientific and legal principles.

2. BACKGROUND ON THE CURRENT FOREST HEALTH CONTROVERSY

   Understanding the current forest health controversy requires some familiarity with its historical and policy context. This Part describes the forest management policies that led to the heightened wildland fire danger on federal lands. It then traces the evolution of management policy responses to this heightened danger, which in turn led to the Initiative.

   1. The Source of the Problem: Exclusionary Fire Management

      Early 20th century wisdom held the domestic supply of timber to be inexhaustible, and the Forest Service during this period functioned primarily as a timber reserve to supplement private timber supplies. (30) Under Gifford Pinchot's model of sustainable forestry, and in response to catastrophic fires in 1910, (31) Forest Service policy came to view forest fire as anathema to efficient federal timber production. A policy of vigorous fire suppression followed, of which the "10 a.m. policy" was a significant component. (32) At the turn of the century, most western forests were open and rather park-like, due to a history of relatively frequent fire which cleared underbrush and forest litter. (33) Precisely because fires had historically controlled forest fuel loads, the Forest Service enjoyed successful fire suppression. (34) By the 1960s, however, the costs of suppression began to grow without reducing fire danger. (35)

      The Forest Service began to reconsider the effectiveness and wisdom of fire exclusion, and its wildland fire policy slowly changed from fire exclusion to more comprehensive fire management, using a combination of prescribed fire to reduce fuels, selective suppression of certain fires, and traditional suppression for others. (36) But in 1979, an upward trend in annual fire acreage began, caused by the buildup of combustible forest fuels over 75 years of vigorous fire suppression. (37) In the 1970s, increasing numbers of recreational forest users and residents of the growing "wildland-urban interface" (38) demanded greater fire...