The quick and the dead: Earth Island v. Forest Service and the risk of forest service financial bias in post-fire logging adjudications.

• Author: Saylor, Austin D.

1. INTRODUCTION II. THE ECOLOGICAL CONTEXT OF POST-FIRE LOGGING A. "Salvage Logging" B. Ecological Impacts of Post-Fire Logging 1. Soils 2. Snags 3. Watersheds III. FOREST SERVICE POST-FIRE LOGGING PRACTICES A. The Rise of the Salvage Sale B. 1995 Timber Rider C. Post-Fire Response D. Expedited Notice, Comment, and Appeals Processes IV. TRUST FUNDS AND OFF-BUDGET ACCOUNTS: WASTEFUL BOONDOGGLES OR ISLANDS OF STABILITY? A. The Salvage Sale Fund B. The Knutson-Vandenberg Fund V. DOES THE FOREST SERVICE'S POST-FIRE DECISION MAKING IMPLICATE CONSTITUTIONAL PROCEDURAL DUE PROCESS CONCERNS? A. Fifth Amendment Procedural Due Process: The Right to a Neutral Decision Maker B. Threshold Inquiries: Is Procedural Due Process Triggered? 1. The Requirement of Individualized Decision Making 2. Deprivation of a Liberty or Property Interest C. The Contours of Judicial and Administrative Financial Bias 1. Judicial Bias 2. Administrative Bias VI. IS THE FOREST SERVICE A BIASED ADJUDICATOR? A. Due Process Claims in Post-Fire Logging Adjudications: Dead on Arrival? 1. Substantiality of the Pecuniary Interest 2. Directness of the Pecuniary Interest VII. A NEW "NEW PROPERTY" INTEREST IN POST-FIRE LOGGING ADJUDICATIONS VIII. CONCLUSION I. INTRODUCTION

   In 2005, more than 66,000 wildfires of varying intensities burned roughly 8.6 million acres of public lands. (1) Those fires left the United States Forest Service (Forest Service) with a formidable, but familiar, administrative dilemma: how to manage the burned landscape so as to ensure ecological health while also recouping economic value? If these dual goals prove irreconcilable, are they cast in equal balance?

   The structure of the Forest Service's budget engenders potent financial incentives to elevate post-fire logging above short- and long-term ecological stability. (2) Money from salvage sales is, by statute, deposited in a special account (independent of the congressional appropriations process) over which the agency has wide spending discretion. (3) The ability to augment off-budget revenue through timber sales risks skewing management decisions in favor of post-fire logging, and may inhibit reasoned assessment of environmental consequences. (4) A variety of statutes (5) channel the decision making process, but the Forest Service enjoys fairly wide discretion. (6) Compounding the statutory tangle, environmental groups and timber industry lobbyists press the Forest Service in opposing directions on post-fire management policies.

   Post-fire logging projects spark passionate, polarized debates. While activities like reseeding, erosion control, fuels reduction, invasive species eradication, and repairs to roads and structures may sometimes provoke controversy, (7) proposals for "salvage logging" are acutely divisive. Because they implicate a fervid scientific and political debate surrounding the role of fire in our National Forests, such proposals engender potent reactions. Pitted against those who decry post-fire timber harvests as ecologically myopic and environmentally ruinous are those who insist that such logging is vital to forest recovery and imperative to avert economic waste. At stake is a fundamental question: how should the Forest Service appraise a forest's value? This inquiry is especially pertinent in the post-fire logging context because the agency is often compelled to adjudicate the legal rights of timber bidders vis-a-vis the legal rights of those challenging the project. The Forest Service reaps financial profit if it sells the burned timber but makes no money if it decides not to log, prompting some to question the agency's capacity to be a neutral decision maker.

   In Earth Island v. U.S. Forest Service (Earth Island II), a case spurred by post-fire timber sales in Northern California's Eldorado National Forest, the Ninth Circuit Court of Appeals remarked on what it characterized as a "disturbing trend" in the Forest Service's recent post-fire timber sale activities. (8) Citing eight recent cases, (9) the court drew an implicit link between the Forest Service's apparent financial interest in selling burned timber and the spate of decisions faulting the agency's post-fire National Environmental Policy Act (NEPA) analyses and National Forest Management Act (NFMA) implementation. (10) The court lamented that the agency "appears to have been more interested in harvesting timber than in complying with our environmental laws," and admonished that "it has not escaped our notice that the [Forest Service] has a substantial financial interest" in harvesting timber. (11)

   Judge Noonan, in a concurring opinion, asserted that the agency's financial interest "requires further investigation and evaluation." (12) As he opined in 2003 in Earth Island v. Forest Service (Earth Island I), "[a] bureaucracy, protecting its tuff and cherishing the number of its employees and the extent of its empire ... would put a premium on an operation that gives it a perpetual revolving fund not dependent on Congress." (13) Judge Noonan was clearly skeptical of the Forest Service's ability to act impartially in post-fire logging disputes, and the Ninth Circuit's recent opinion in Earth Island II signaled similar suspicion. Judge Noonan peppered his Earth Island II concurrence with key procedural due process cases, indicating his confidence that the requirement of a neutral decision maker in the post-fire logging context is grounded in the Constitution. (14)

   This Chapter examines how the Forest Service's off-budget accounts foment potential financial bias in post-fire logging adjudications and identifies why the Fifth Amendment's procedural due process requirement of a neutral decision maker is not triggered despite this high risk of prejudice. Part II sketches a brief overview of the core ecological issues typically raised in post-fire logging debates. Part III reflects on the origins of "salvage" harvests and traces the rising prominence of salvage timber sales since the early 1990s, corresponding with a decline in regular timber harvests. The section also outlines the Forest Service's response after a wildfire, and touches on a selection of controversial post-fire logging legislation and regulation. Part IV transitions to a synopsis of the Salvage Sale Fund, the Forest Service's off-budget account that holds post-fire timber sale revenue. With this account, the agency retains income from post-fire timber sales rather than deposit it to the U.S Treasury. This dynamic yields a potential for financial bias in favor of post-fire logging, as Judge Noonan touched on in his Earth Island I and Earth Island II concurrences. Part V expands on Judge Noonan's skeletal discussion of Fifth Amendment procedural due process, first setting out the threshold inquiries and then reviewing the case law to identify the criteria for when the potential for financial bias rises too high to be constitutionally permissible.

   Part VI assesses the contours of the Forest Service's potential bias, concluding that although the agency has a substantial and direct financial stake in the outcome of post-fire logging adjudications, procedural due process protections are not triggered because salvage logging contestants lack a recognized liberty or property interest. Drawing on criticisms of modern procedural due process protections as unduly narrow, Part VII lays out the argument in favor of a more expansive conception of liberty and property for due process purposes. The Chapter concludes that the Forest Service's budget structure creates a high risk of financial bias in post-fire logging adjudications, and that the inability to invoke the Fifth Amendment's basic procedural protections here underscores a dire constitutional infirmity.

2. THE ECOLOGICAL CONTEXT OF POST-FIRE LOGGING

   Forests are fragile after fires, but are not "charred moonscape[s]" (15) left prostrate and helpless to recover naturally. To the contrary, there is abundant scientific evidence that fire-adapted forests not only recover rapidly, but need fire to prosper. (16) Low and moderate intensity wildfires typically bum in "mosaic" patterns, with patchy burned and unburned areas (depending on weather, terrain, and fuels). (17) Post-fire management plans are tailored to the unique conditions of particular climates and forest types, (18) but post-fire logging rarely, if ever, fits the ecological prescription. (19) With little reason to believe that post-fire salvage logging has any positive ecological benefits, (20) the push for urgent action cannot be predicated on ecological need. Time is perhaps the "enemy" in an economic sense, (21) but it is an ally in an ecological sense.

   1. "Salvage Logging"

      "Salvage logging" is the harvest of dead or dying trees damaged by fire, wind, flood, insects, or disease. (22) Salvage sales may encompass logging of "risk trees" and "associated trees" as well, including live, healthy trees. (23) The Forest Service's proffered justifications for post-fire logging in Earth Island II are typical--the agency claims post-fire logging will reduce the severity of future fires by reducing hazardous fuels, (24) as well as recover economic value from the burned timber. (25) Subsidiary objectives include protection of public health and safety and restoration of vegetation. (26) Post-fire logging proponents also contend that money from post-fire timber sales generates revenue vital to fund forest restoration projects. (27)

      The term "salvage" connotes desperation. Framing post-fire logging operations as "making the best of a bad situation" is, however, a dubious insinuation given the widely touted ecological benefits of natural disturbances like fire. (28) In the wildfire context, where public perception is so crucial, (29) this is a sore point for those who oppose post-fire logging. A forest is "more than a collection of merchantable trees," (30) and hasty post-fire decision making cramps a holistic perspective by sacrificing long-term...