The Healthy Forests Initiative: Unhealthy Policy Choices in Forest and Fire Management
Davis, Jesse B., Environmental Law
I. 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
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. …