WILDFIRE LITIGATION: EFFECTS ON FOREST MANAGEMENT AND WILDFIRE EMERGENCY RESPONSE.

Author:Kohn, Elias
Position:CHAPTERS - 2017-2018 Ninth Circuit Environmental Review - Survey
 
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  1. SUMMARY OF CHAPTER AND FORESTRY TERMS 586 II. FIRE SUPPRESSION AND INCREASINGLY DANGEROUS WILDFIRES 588 A. Decades of Fire Suppression and the Adverse Effects 589 B. Shifting A way from Fire Suppression and Using Prescribed Burning 590 C. The Wildland Urban Interface: A Product of Fire Suppression and a Challenge for Forest Management 592 III. WILDFIRE LITIGATION 593 A. The Federal Tort Claims Act and the Discretionary Function Exception 594 B. The Discretionary Function Exception and Prescribed Burning 595 C. Halting Forest Projects and Effects on Forest Management 599 D. Aggressive Government Wildfire Litigation 600 E. Litigating the Wildland Urban Interface 603 F. Charging Firefighters for Mistakes Made Fighting Fires. 605 IV. WILDFIRE LITIGATION AND EMERGENCY MANAGEMENT 606 V. LIVING WITH FIRE: DECREASING LITIGATION AND EXPANDING COLLABORATION 609 A. Decrease Areas of Litigation that Deter Fire Prevention and Emergency Response 610 B. Expand Collaboration Between Public and Private Entities 612 C. Expand Collaboration Between Government Agencies 613 VI. CONCLUSION 614 I. SUMMARY OF CHAPTER AND FORESTRY TERMS

    This Chapter begins with a warning of the growing dangers of Western wildfires and explains that fire suppression (1) has contributed to these growing dangers. The disturbance regimes (2) of fire are also briefly discussed, as this helps understand the danger of fire suppression and the illusion of viewing forests as "pristine" and static rather than dynamically shaped by recurring disturbances. (3) Climate change, decades of fire suppression, and the rapid growth of housing development adjacent to forests, commonly referred to as the "Wildland Urban Interface," altered the natural fire disturbance regimes and have led to increasingly dangerous emergencies. (4) Part II ends by explaining the need for active, controlled, and preventative fire management, such as prescribed burning. (5)

    Part III of this Chapter explores effects of wildfire litigation on wildfire management. This Part addresses tort claims, injunctions to stop forest projects, increasingly large damage awards and settlements resulting from wildfire litigation, and criminal prosecution of wildland firefighters. The litigation analyzed for this Chapter demonstrates that a higher risk of liability exists for prescribed burning when used as a preventative tool rather than as a tool to suppress an active wildfire. This continues to favor fire suppression--a root cause of the increasingly damaging wildfires endured today.

    Part IV focuses on the clash between wildfire litigation and wildfire emergency response. The litigation model, and the view that wildfires are the result of individual action, like the teenager who started the Eagle Creek Fire, is a different paradigm than an emergency management model that views fires akin to floods and other natural disasters. The litigation model threatens to stress elements of the emergency response model. (6)

    Part V proposes steps to improve wildfire management. These proposals focus on reducing the litigation that adversely impacts preventative fire management and emergency response. This Part also proposes greater adoption of collaborative and cooperative efforts both between government agencies and between private citizens and government agencies. Such collaboration could reduce adverse impacts of litigation and, hopefully, treat the more complex, underlying causes of increasingly dangerous wildfires. (7)

  2. FIRE SUPPRESSION AND INCREASINGLY DANGEROUS WILDFIRES

    Current wildfire costs and damages are rising to astoundingly high numbers. (8) In 2013 alone, wildfires killed thirty-four people. (9) By early December of 2017, just within California, wildfires killed forty-three people and damaged or destroyed 10,000 structures. (10) After the immediate risks of fire and smoke abate, communities and emergency responders face prolonged post-fire threats, particularly landslides. (11)

    The rising costs are crippling the United States Forest Service's (USFS or Forest Service) budget. The 2017 fire season cost the Forest Service over $2.4 billion in suppression operations, making it the most expensive fire year on record. (12) For the first time ever in its 110-year existence, the Forest Service now spends more than half of its budget attempting to suppress wildfires. (13) The growing costs to fight wildfires have forced the Forest Service to repeatedly "shift" staffing and resources "from nonfire to fire-related programs" as well as "borrow" funds from nonfire programs. (14) Spending more on fire suppression may appear to be a logical response to fight wildfires, but continually draining a budget to treat the symptoms prevents remedying the underlying causes. (15) As the Forest Service explains, "Dollars taken from nonfire programs for fire suppression interrupt projects and activities that preemptively reduce the risk of catastrophic fires, restore forest health, protect communities, and deliver a multitude of other values." (16) Wildfire costs are growing, and the agency tasked with fighting these fires "is at a tipping point." (17)

    1. Decades of Fire Suppression and the Adverse Effects

      From around 1910 until the 1970s, U.S. fire policy sought to suppress all fires as quickly as possible. (18) Decades of fire suppression successfully reduced total burnt acreage. (19) Fire suppression, therefore, also supplied an ingredient for larger future fires: fuel, such as dead wood, that would have otherwise burned in the fire, accumulated each time a fire was suppressed. (20) Forest growth continues to add additional fuel, another fire is suppressed, and the cycle continues. Eventually, the accumulated fuel ignites, and the resulting fire is too large to suppress. (21)

      Decades of suppression may not yet have altered fire regimes in wetter forests with longer fire disturbance intervals, compared to dryer forests accustomed to more frequent and less severe fires. (22) Nonetheless, in many Western forests, fire is the primary natural disturbance (23) and suppressing this disturbance creates negative ecological consequences and enhances the risks of larger wildfires. (24) Reduced logging, due to lawsuits that challenge timber sales (25) or wilderness reserves that forbid management, (26) also allow fuel loads to accumulate. (27) In addition, climate change is creating the ingredients for more intense mega-fires. (28) This is the current, and frightening, condition of many forests across the West.

    2. Shifting Away from Fire Suppression and Using Prescribed Burning

      Absolute fire suppression as a national policy began to shift as land managers and scientists realized that suppression is expensive, ecologically damaging, and increases the vulnerability of forests to future wildfires. (29) Fire suppression is still dominant in fire management today, but a growing consensus realizes that fire must be reintroduced onto many landscapes across the West. (30) One method to reintroduce fire is the use of prescribed burning.

      Prescribed burning is the planned and controlled use of fire to meet management objectives, such as reducing fuel loads to minimize the size or incidence of wildfires. (31) Prescribed burning can address the legacy of fire suppression and the growing challenges of climate change. (32) It can also reduce wildfire risks and create ecological benefits that "other forest management tools cannot replicate." (33) The practice, however, is risky because prescribed burns can and do escape control and result in heavy smoke and damaging wildfires. (34) The use of prescribed burning, therefore, requires a balancing act. A sufficient amount of fire will restore forest habitat, replicate disturbance regimes, and promote forest health. (35) Yet, any reintroduction poses the risk of conflagrating into an uncontrollable fire. The Wildland Urban Interface complicates this entire balancing act.

    3. The Wildland Urban Interface: A Product of Fire Suppression and a Challenge for Forest Management

      Decades of fire suppression accommodated the growth of human development in and adjacent to forests, an area commonly referred to as the "Wildland Urban Interface" (WUI). (36) Fire suppression policies facilitated property owners living adjacent to forests and enjoying a reduced risk of fire because the government would fight to immediately extinguish any fire. (37) Since the 1940s, significant housing growth occurred in and around wildlands. (38) Now, over 30% of America's housing exists in the WUI. (39) The majority of this housing is on privately owned land located within high fire severity regimes of the intermountain West. (40) Increasingly dense populations and the expansion of private property adjacent to public forests are increasing the human and financial cost of wildfire. (41) The WUI also adds fuel to wildfires when homes and flammable objects ignite. (42) Prescribed burning must navigate this urban interface that borders multi-use forests and designated wilderness zones.

      The risk of a prescribed burn escaping and damaging homes, or even taking lives in the WUI, is a major concern. (43) The risk that an escaped burn will generate significant litigation further restricts the use of prescribed burning. (44) Taking no action to reduce fuel loads, however, leaves a ticking time bomb for many communities living adjacent to increasingly dense and dry forests. While prescribed burning creates an immediate fire risk to WUI residents and creates smoke that can harm vulnerable populations, not burning allows an arguably larger risk of smoke and future wildfires for the same residents. (45) Moreover, active fire management allows the advantage of partially controlling some factors and preparing, ahead of time, for a wildfire if the prescribed burn escapes. (46) Living with fire and conducting cautious and careful burning treatments have become a necessity in many western regions. (47) Litigation and the current legal paradigm...

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