Smoking out forest fire management: lifting the haze of an unaccountable Congress and lighting up a new law of fire.

• Author: Hoffman, Ashley K.

1. INTRODUCTION II. CONTINUING CONTROVERSY IN THE NORBECK WILDLIFE PRESERVE A. Historical Background and Statutory Framework B. Forest Planning in the Norbeck Wildlife Preserve III. A HISTORY OF FOREST FIRE MANAGEMENT A. The Forest Service's Autonomy B. CONGRESSIONAL ATTEMPTS TO LIMIT FOREST SERVICE Autonomy C. The Evolution of Fire Management 1. Tradition of Fire Suppression 2. A Paradigm Shift 3. Policy Dilemma D. The Limits of Scientific Management E. Our Broken Congress IV. CONCLUSION I. INTRODUCTION

   Since its establishment over a century ago, the United States Forest Service ("USFS") has consistently fought for greater authority and autonomy. This spirit of independence initially served the agency well. Its foundational mission--to manage the national forests '"for the greatest good for the greatest number in the longest run"--engendered a pride and loyalty among the agency's foresters that made it the envy of all other agencies. For many decades, the agency's focus was on applying forestry methods, mostly borrowed from Germany, to maximize sustainable lumber supplies for the country as a whole while also serving the needs of local communities dependent upon the timber industry. Its success in this regard made the agency popular among the public.

   Today though, things have changed. Beginning in the middle of the century, the public's demands and expectations of national forests shifted from prioritizing timber production and grazing, to recognizing the forests for their environmental and recreation values. In the 1960s and 1970s, Congress passed a series of laws reflecting this change, each aimed at curtailing agency discretion and requiring the USFS to recognize other uses of national forests beyond solely economic ones. While these new laws all contained enforceable provisions, including some substantive standards, they still left the agency with significant discretion. At each step, the USFS has resisted the legislative encroachments, and both the agency and interested stakeholders have tested the limits of the new laws, leading to extensive litigation. All of this takes away from the agency's main task of managing its forests.

   Arguably, the one area where the USFS has most successfully retained its autonomy is in the area of fire management. This is primarily because Congress has exempted certain fire management activities from otherwise-applicable environmental and planning standards. The rationale has typically been that the regulation and control of fire, now often contextualized within a larger context of forest health concerns, presents a situation that many consider an emergency. Inasmuch as we do, in fact, confront a forest emergency, it is largely of the agency s own making and that of others following its lead. USFS policies, for much of the twentieth century, emphasized fire suppression as a way to protect standing timber, as well as human safety. This has altered forest ecologies, leaving forests and their surrounding areas more vulnerable to large, so-called "catastrophic" fires and devastating insect and pest infestations. Ironically, this "emergency," in large part created by the USFS' exercise of its near-limitless authority for much of the century, provides the basis for renewed autonomy in that very area of management. Still, in the area of fire management, as elsewhere, opponents have often succeeded in delaying agency action through administrative and judicial appeals. Litigation has come to be so pervasive that many see public relations as one of the USFS' most important jobs. (1) The predominant recent trend in public land management has been to implement a more collaborative, or "bottom-up," management model in an effort to replace conflict with cooperation. (2)

   While the collaborative model has enjoyed a few successes, recent experience in the USFS' management of the Norbeck Wildlife Preserve in the Black Hills of South Dakota, shows that much more is needed than merely a shift in the agency's handling of the public. Despite the efforts of the agency in creating a more cooperative environment, the past three decades in the Norbeck Wildlife Preserve have been dominated by distrust and conflict. The forest has suffered as a result.

   Part II of this article examines the Norbeck Wildlife Preserve and the legal and political controversies surrounding its management, particularly as to fire. Part III attempts to explore the root causes of the management quagmire in the preserve by placing them within their wider historical and legal contexts. Whether due to a tradition of favoring exploitative industries or past failures in regards to fire management, the agency is unlikely to gain the level of trust among environmentalists and recreationists to allow it to govern as it once did. The agency is not entirely to blame. Litigation, to the extent we have seen with regard to the Norbeck Wildlife Preserve, is only possible where the applicable laws contain ambiguities or inconsistencies. This creates a problem for Congress. Rather than regularly exempting the agency from legal standards, which only adds to the lack of cooperation, Congress must enact new legislation that provides meaningful standards for fire management.

2. CONTINUING CONTROVERSY IN THE NORBECK WILDLIFE PRESERVE

   Since at least the 1980s, management of the Norbeck Wildlife Preserve (the "Preserve") has provided a perfect example of the extent to which litigation has come to pervade public land management, including the regulation of fire regimes. This Part explores that story. It first outlines the Preserve's establishment in the early part of the twentieth century with an analysis of the Preserve's foundational mission, to protect wildlife from extractive industries such as timber and mining. It then examines the basic statutory framework governing management of the forest. Finally, it dissects the legal disputes that have characterized fire management in the Preserve for the last few decades.

   1. HISTORICAL BACKGROUND AND STATUTORY FRAMEWORK

      In 1905, Peter Norbeck, a South Dakota native, visited the Black Hills for the first time. Impressed with what he saw in the Black Hills and fearful for what he thought might be lost if unfettered development continued, Norbeck spent the better part of the following two decades fighting to create the country's largest park. In 1912, four years after being elected to the South Dakota State Senate, he succeeded in designating a portion of South Dakota's land in the southern portion of the Black Hills as the Custer State Forest. The law required the Custer State Forest be managed so as to provide a breeding habitat for wild-life. (3) In 1920, Norbeck, by then a U.S. Senator, was instrumental in getting Congress to pass legislation greatly enlarging the size of the protected wildlife habitat. (4) Specifically, Congress authorized the President to designate up to 46,000 acres of the adjoining federally-owned Harney National Forest (since renamed the Black Hills National Forest) as a sanctuary "for the protection of game animals and birds" and their habitats. (5) The Act generally prohibited "hunting, trapping, killing, or capturing of game animals and birds" within the Preserve. (6) Additionally, Congress required that this "Custer State Park Game Sanctuary" remain virtually free from extractive or depletive uses such as logging, mining, and grazing. (7) Congress recognized Norbeck's contributions in 1949, when it renamed the federal portion of the sanctuary the Norbeck Wildlife Preserve. (8)

      Norbeck's views aligned with those of Aldo Leopold, who encapsulated what became known as the "land ethic" with the following passage:

      [D]o we not already sing our love for and obligation to the land of the free and the home of the brave? Yes, but just what and whom do we love? ... A land ethic of course cannot prevent the alteration, management, and use of ... 'resources,' but it does affirm their right to continued existence, and, at least in spots, their continued existence in a natural state. (9) Norbeck shared Leopold's values and it was with those values in mind that Norbeck fought for the establishment of the Preserve. (10) Specifically, Norbeck cared deeply about the potential impacts of economic development in the Black Hills on the continued viability of the many bird and mammal species--including bison, the rare northern goshawk, and the black-backed woodpecker that lived in the area. (11) USFS wildlife biologists Randall Griebel, Kerry Burns, and Shelly Deisch describe Norbeck as a man harboring "an unwielding [sic] devotion to conservation during his entire political career." (12)

      The Preserve is a special place. Home to up to 139 bird and 62 mammal species, (13) including rare wildlife like the Northern Goshawk and the Black-Backed Woodpecker, (14) wildlife biologists have described the preserve as "one of the few places ... that has continuous flowing streams and excellent opportunities to increase [certain species'] habitat." (15) The area is "vegetatively diverse, with the potential of providing "high quality" habitat consisting of the largest-diameter trees in the Black Hills. (16) These trees provide desirable nesting accommodations to a number of different species. (17) Moreover, the Preserve "contains some of the last stands of uncut trees in the state of South Dakota." (18)

      Management of the sanctuary has rarely been free from controversy. As early as 1927, the USFS attempted to initiate timber harvests within the Preserve. (19) 20 21 22 The agency recognized that such harvests must not interfere with game animals and that preservation was the primary purpose for the Preserve. (20) Mining interests enjoyed a great success in 1948, when Congress opened up the preserve to new mining locations. (21) This law not only opened access to minerals, but it also authorized valid mining claimants to use and occupy the surface as necessary for mining operations, including the taking...