The Law of Fire: Reshaping Public Land Policy in an Era of Ecology and Litigation

ARTICLES THE LAW OF FIRE: RESHAPING PUBLIC LAND POLICY IN AN ERA OF ECOLOGY AND LITIGATION BY * ROBERT B. KEITER “Probably the greatest single benefit derived by the community and the nation from forest reserves is insurance against the destruction of property, timber resources, and water supply by fire.” Gifford Pinchot (1905) “Fire is neither good nor evil; it is part of the natural process of change . I challenge the American people to recognize how fire and smoke . can and must continue to play an essential, natural role in the life cycle of the wildlands we live in and love.” Bruce Babbitt (1997) This article explores the relationship between law, fire, and resource management policy on the public lands. It offers an overview of federal fire policy, describing the evolution of that policy and how the current forest health debate has shaped policy options. It reviews and analyzes the legal framework governing fire policy on public lands, focusing on relevant organic legislation and site-specific statutes, the interface between environmental law and fire management including recent Healthy Forests Initiative reforms, the Healthy Forests Restoration Act of 2003, tort liability and other compensation doctrines, and the role of state law in shaping federal policy. It then places the fire policy debate in a broader public land policy context, arguing that the current legal framework is not fundamentally flawed though some reforms are necessary to better accommodate fire on the * © Robert B. Keiter, 2006. Wallace Stegner Professor of Law and Director, Wallace Stegner Center for Land, Resources and the Environment, University of Utah S.J. Quinney College of Law. The College of Law’s Faculty Research Development Fund provided me with much- appreciated financial support for this project. [301] 302 ENVIRONMENTAL LAW [Vol. 36:301 public domain. It concludes that clear legal standards and procedures are necessary to ensure legitimacy and promote accountability in the uncertain and risk-laden wildfire policy setting. I. INTRODUCTION ..................................................................................................................... 302 II. UNDERSTANDING FEDERAL WILDFIRE POLICY ................................................................... 304 A. Fire Policy in Historical Perspective.................................................................... 304 B. Charting a New Course .......................................................................................... 308 C. The Terms of the Debate........................................................................................ 313 III. THE LAW OF FIRE .............................................................................................................. 322 A. Organic Legislative Provisions and Site-Specific Statutes................................ 322 B. Environmental Law and the Healthy Forests Initiative..................................... 332 C. Healthy Forests Restoration Act of 2003............................................................. 344 D. Tort Liability, Compensation, and Fire Policy.................................................... 350 E. Federalism: State Law and Federal Fire Policy.................................................. 358 IV. PUTTING FIRE, FORESTS, AND LAW IN PERSPECTIVE ......................................................... 365 A. Fire Law and Policy Revisited............................................................................... 365 B. Unraveling the Intertwined Issues........................................................................ 370 C. A Law of Fire Aborning: Toward Greater Integration and Accountability..... 378 V. CONCLUSION ....................................................................................................................... 383 I. INTRODUCTION 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 1 H.R. REP. NO. 108-96, pt. 1, at 2 (2003); ROCKY BARKER ET AL., A CHALLENGE STILL UNMET: A CRITICAL ASSESSMENT OF THE POLICY RESPONSE TO WILDLAND FIRE 2 (2004); U.S. GOV’T ACCOUNTABILITY OFFICE, WILDLAND FIRE MANAGEMENT: IMPORTANT PROGRESS HAS BEEN MADE, BUT CHALLENGES REMAIN TO COMPLETING A COHESIVE STRATEGY 3 (2005) [hereinafter GAO WILDLAND FIRE MANAGEMENT]. 2 See ROBERT B. KEITER, KEEPING FAITH WITH NATURE: ECOSYSTEMS, DEMOCRACY, AND AMERICA’S PUBLIC LANDS 2–14 (2003) (introducing the shift to ecosystem thinking in public lands 2006] LAW OF FIRE 303 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); MICHAEL J. DOMBECK ET AL., FROM CONQUEST TO CONSERVATION: OUR PUBLIC LANDS LEGACY 163–186 (2003) (discussing the role of ecology in future land management); HANNA J. CORTNER & MARGARET A. MOOTE, THE POLITICS OF ECOSYSTEM MANAGEMENT 11–36 (1999) (describing the evolution of ecosystem management); ECOSYSTEM MANAGEMENT: APPLICATIONS FOR SUSTAINABLE FOREST AND WILDLIFE RESOURCES 1–12 (Mark S. Boyce & Alan Haney eds., 1997) (introducing collected works on ecology and fire management). 3 See ROCKY BARKER, SCORCHED EARTH: HOW THE FIRES OF YELLOWSTONE CHANGED AMERICA 220 (2005) (noting that “1.2 million acres had burned in Yellowstone and the surrounding national forests”); MICAH MORRISON, FIRE IN PARADISE: THE YELLOWSTONE FIRES AND THE POLITICS OF ENVIRONMENTALISM 207 (1993) (noting that 800,000 acres were affected inside the park); Norman Christensen et al., Interpreting the Yellowstone Fires of 1988, 39 BIOSCIENCE 678, 679 (1989) (noting that “approximately 45% of Yellowstone National Park burned”); Paul Schullery, The Fires and Fire Policy, 39 BIOSCIENCE 686, 691 (1989) (noting that 385,570 acres burned in Yellowstone National Park, and 562,310 acres burned in the area). 4 STEPHEN J. PYNE ET AL., INTRODUCTION TO WILDLAND FIRE 260–94 (2d ed., 1996). 5 U.S. DEP’T OF THE INTERIOR & U.S. DEP’T OF AGRIC., FEDERAL WILDLAND FIRE MANAGEMENT POLICY AND PROGRAM REVIEW: FINAL REPORT 4 (1995) [hereinafter 1995 FEDERAL FIRE POLICY REVIEW]. 6 16 U.S.C. § 551 (2000); 16 U.S.C. § 594 (2000); see infra notes 102–10, 117–21 and accompanying text. 7 Pub. L. No. 108-148, 117 Stat. 1887 (2004) (codified at 16 U.S.C.A. §§ 6501–6591); see infra notes 239–84 and accompanying text. 8 See U.S. DEP’T OF THE INTERIOR & U.S. DEP’T OF AGRIC., THE HEALTHY FORESTS INITIATIVE AND HEALTHY FORESTS RESTORATION ACT: INTERIM FIELD GUIDE 4–7 (2004) [hereinafter HEALTHY FORESTS INTERIM FIELD GUIDE] (noting that procedural and administrative hurdles have delayed fuel reduction projects); OFFICE OF THE PRESIDENT, HEALTHY FORESTS: AN INITIATIVE FOR WILDFIRE PREVENTION AND STRONGER COMMUNITIES 13–16 (2002) [hereinafter HEALTHY FORESTS INITIATIVE] (outlining perceived procedural delays); see also infra notes 201–32 and accompanying text. 304 ENVIRONMENTAL LAW [Vol.

Load more