The Law of Fire: Reshaping Public Land Policy in an Era of Ecology and Litigation
Keiter, Robert B., Environmental Law
I. INTRODUCTION II. UNDERSTANDING FEDERAL WILDFIRE POLICY A. Fire Policy in Historical Perspective B. Charting a New Course C. The Terms of the Debate. III. THE LAW OF FIRE A. Organic Legislative Provisions and Site-Specific Statutes B. Environmental Law and the Healthy Forests Initiative C Healthy Forests Restoration Act of 2003 D. Tort Liability, Compensation, and fire Policy. E. Federalism: State Law and Federal Fire Policy IV. PUTTING FIRE, FORESTS, AND LAW IN PERSPECTIVE A. Fire Law and Policy Revisited B. Unraveling the Intertwined Issues C. A Law of fire Aborning: Toward Greater Integration and Accountability V. CONCLUSION
Wildfire plays a central role on western public lands. Whatever its origin, fire has preoccupied federal land management agencies from their earliest days, just as it has long traumatized rural communities, engendered contentious political and scientific debate, and placed an enormous recurrent drain on the federal treasury. Today is no different. A spate of record-setting fire seasons have seen millions of acres burned, hundreds of homes destroyed, numerous lives lost, and multi-million dollar fire suppression bills. Los Alamos was engulfed in flames during 2000, the states of New Mexico, Colorado, Oregon, and Arizona suffered their worst fire seasons ever in 2002, and southern California went through the same in 2003. (1) As a result, wildland fire policy has once again come under scrutiny. But the terms of the debate are different today, focusing on forest ecology, wildland urban interface problems, catastrophic fire threats, and legal gridlock concerns.
Federal fire policy has undergone a remarkable transformation over the past several decades, just as ecology has assumed a more prominent role in public land management policy. (2) Historically regarded as an evil and destructive force, fire has gained new respectability as a vital ecosystem process. Even before the spectacular 1988 Yellowstone fires burned widely across the park landscape, (3) agency officials were allowing lightning-ignited fires to burn unchecked in backcountry venues in an effort to reestablish a more normal fire regime after more than a half century of near total fire suppression. (4) The Yellowstone firestorm introduced the American public to this important policy shift, which was eventually reconfirmed after the smoke and early recriminations faded. By the mid-1990s, following yet more harrowing fire events, the federal agencies formally acknowledged that fire was an important ecological process on the public lands and that prescribed fires would be allowed to burn, so long as they did not endanger human lives or property. (5) The question, in this new age of ecology, was no longer merely how to suppress fire, but also how to accommodate, control, and use it.
Curiously, though fire management policies are in flux, the law has surprisingly little to say about wildfire. To be sure, Congress has long given the public land management agencies the basic legal authority to control fire on federal lands. (6) Congress also adopted the Healthy Forests Restoration Act of 2003, (7) while the Bush Administration, under the rubric of the Healthy Forests Initiative, has implemented controversial administrative reforms designed to expedite fire control efforts. (8) But otherwise the law of fire on the public domain is an uncoordinated and fragmented welter of organic statutory provisions, environmental protection mandates, annual budget riders, site-specific legislation, judicial decisions, policy documents, management plans, and diverse state statutory prohibitions. Tempting as it is to characterize the sum of these laws as greater than the individual components, this would attribute far too much foresight to Congress or the agencies. The simple truth is that the law does not comprehensively address fire policy on the public lands, (9) even though fire management may now claim more agency attention and resources than any other single matter. …