Wildfire Litigation: Effects on Forest Management and Wildfire Emergency Response

By Kohn, Elias | Environmental Law, Summer 2018 | Go to article overview

Wildfire Litigation: Effects on Forest Management and Wildfire Emergency Response


Kohn, Elias, Environmental Law


  I.  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. …

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