Healthy Forest : An Initiative for Wildfire Prevention and Stronger Communities
The Need for Improved and Accelerated Forest Management
Procedural delays are stalling critical forest and rangeland management projects.
Although federal, state, local, and tribal officials, working with communities,
non-profit organizations and the private sector, are making great efforts to
reduce the risk of catastrophic fires and restore forest and rangeland health,
these vital projects are often significantly delayed and constrained by procedural
delays and litigation. Given the urgency and scale of the work to be done, it
is imperative that we act quickly. We must reverse a century of misguided mismanagement
of our forests. We must undertake a new century of forest restoration - yet
land managers and local communities are too often held back by red tape and
litigation.
Federal land managers must comply with thousands of pages of laws, regulations
and administrative rules before implementing thinning and other fuels reduction
projects on the ground. Additional analysis is frequently conducted in anticipation
of administrative appeals and litigation. This causes frequent and often considerable
administrative delays. For example:
It can take six months to prepare environmental planning documents for even
routine prescribed fire treatments. More complicated projects can take two years
or longer.
Timber sales to achieve fuels reduction and forest health objectives, consistent
with forest health management plans, can take two to four years to prepare and
complete.
A study commissioned by the Forest Service in 2001 found that project decisions
by the agency involve as many as 800 individual requirements and over 100 points
where various laws and required processes interact. The study concluded that
"the process interaction between laws is extremely complex" making
the project planning process "highly susceptible to recursion/interruption
and even non-completion."
Forest Service officials have estimated that planning and assessment activities
consume 40 percent of total work at national forests - at a cost of more than
$250 million per year. Planning costs for a single project can exceed $1 million.
Although some of this planning is indispensable, improved procedures could shift
up to $100 million a year from unnecessary or excessive planning to ecosystem
restoration work.
The Forest Service is required to prepare 15-year forest plans for each of
the 125 units in the National Forest system, part of planning the Forest Service
does for fuels treatment projects. Recent forest plans and the associated environmental
analysis are often over 800 pages long and require as long as 10 years to prepare,
at an average cost of $9 million each.
A June 2002 Forest Service study, The Process Predicament, concluded that the
agency "operated within a statutory, regulatory, and administrative framework
that has kept the agency from effectively addressing rapid declines in forest
health." Three factors contribute most directly to project delay.
1) Excessive analysis: Confusion, delays, and costs of required consultations
and studies.
2) Ineffective public involvement: Procedural requirements that create disincentives
to collaboration in national forest management.
3) Management inefficiencies: Poor planning and decision-making, a deteriorating
skills base and inflexible funding rules, compounded by the sheer volume of
the required paperwork and the associated proliferation of opportunities to
misinterpret or misapply required procedures.
The report concluded that "Requirements for environmental analysis go
well beyond what is required for fully informed decision-making."
The appeals process is complex, time consuming and burdensome.
Between January of 2001 and July of 2002, 48 percent of all Forest Service
mechanical fuels reduction projects were appealed. In northern Idaho and Montana,
100 percent of mechanical fuels reduction projects were appealed.
The Payette National Forest in Idaho reports that every thinning project
or timber sale is appealed and litigated. Seven cases currently are in litigation.
The complexity of the protests has grown as well. While earlier protests
might raise three or four issues, current protests often raise 20 or more issues.
The Forest Service appeal requirements add a statutory minimum of three and
a half months to project preparation. However, the increasing complexity and
sophistication of appeals is lengthening this timeframe, in some cases adding
as much as a year or more to the administrative process.
Most frequently, appeals do not change the underlying decision. Approximately
one in ten Forest Service projects are overturned on appeal. Nevertheless, decision-makers
must frequently prepare projects with appeals in mind, adding significant time
and cost without improving the quality of the decision.
For example:
On one project to reduce severe fire risk in a municipal watershed, the Santa
Fe National Forest spent nearly five years and more than $1 million compiling
documentation that could withstand the expected appeals and litigation.
Following the historic fires of 2000, the Bitterroot National Forest spent
15,000 person-days (57 person-years) preparing analysis and documentation to
do recovery work in a portion of the burned area, at a total cost of over $1
million including $100,000 in printing and mailing costs alone. The Forest Service
felt this level of preparation was necessary to "fully document their 'hard
look' at all the issues and their full compliance with every potentially applicable
procedural requirement."
Delays caused by appeals can be disastrous when fires strike.
Baca Ecosystem Management Area: This project in Arizona was designed to reduce
fuel loading on over 7,000 acres, close 89 miles of unneeded roads, and restore
degraded riparian conditions throughout the watershed. A lawsuit was filed in
May, 2000, seeking to stop the removal of trees and citing concerns about wildlife
issues. The Forest Service was not able to persuade the court that the short-term
effects of forest thinning were acceptable given the threat of catastrophic
fire to the long-term health of the watershed. This year, the Rodeo fire burned
over 460,000 acres of forested lands and destroyed over 450 homes, as well as
more than 90 percent of the Baca project area. Although a settlement of the
lawsuit had allowed thinning work to begin on 1,300 acres of land, at the time
of the fire only 300 acres had been treated to withstand fire.
Coconino National Forest: In 1996, the Forest Service proposed a thinning
project on the Coconino National Forest in Arizona to reduce fire risks to habitat
and known nesting sites of the northern goshawk. Thinning near the nesting sites
was dropped from the project because of objections from local environmentalists
and the Forest Service's desire to avoid time-consuming appeals and possible
litigation. Later that year a catastrophic fire burned through the area, completely
destroying both habitat and nesting sites.
Six Rivers National Forest: In the winter of 1995, a severe storm blew down
trees on 36,000 acres in California's Six Rivers National Forest. The Forest
Service proposed to remove downed trees on a portion of the storm area to reduce
fuel loads, which had increased to 10 times the manageable level, creating a
severe fire hazard. Complex analysis requirements under the Northwest Forest
Plan and administrative appeals prevented work on the project from beginning
until the summer of 1999. By fall of 1999, only 1,600 acres (5 percent of total)
had been treated before a 59,000-acre fire burned through the project area;
more than 17,000 acres were severely burned. Fire recovery efforts, which required
18 months of additional analysis, were appealed and subsequently litigated.
The recovery project was ultimately enjoined in April 2002 after seven years
of administrative and legal process that produced over 10,000 pages of documentation.
Insect Infestations: Unless insect-infested trees are swiftly removed, infestations
can spread to healthy forests and private lands. In the Southeast, southern
pine beetle infestations have repeatedly spread from national forests to private
lands because the Forest Service was unable to complete environmental analysis
and take action soon enough to prevent it.
Court injunctions can have broad impacts on management activities.
In some judicial districts, courts have provided injunctive relief to litigants
based on short-term grounds, without deference to expert assessments of long-term
risks to property or potential long-term environmental harm from delaying forest
health projects. For instance, in the Six Rivers National Forest case discussed
above, the court gave more weight to the Beschta Report, a short and generalized
paper commissioned by the Pacific Rivers Council in 1995, than the extensive
and detailed risk analysis already conducted by the agency for that specific
project.
Concern that inadequate documentation will lead to court injunctions creates
a chilling effect on other similar projects. This leads Forest Service staff
to conduct additional analysis and planning to attempt to avoid litigation -
delaying other needed work and increasing the chance of long-term risk of resource
and property damage.
Court injunctions against regulatory agencies' decisions approving short-term
impacts on species, water quality and other resource values can affect Interior
land management agencies as well. For example, litigation filed against the
National Marine Fisheries Service has led to injunctions stopping projects proposed
by the BLM and Forest Service.
Congress has recognized the effects of regulatory and administrative delays
this fire season.
In July 2002, Congress passed legislation recognizing the urgency of the
severe fire threat posed to private homes from fire and diseased trees in the
Black Hills National Forest and the procedural problems that could delay prompt
action.
This measure expedited fuels treatment projects to address severe fire conditions,
and avoids the constraints posed by ongoing litigation to address those conditions
in high priority areas. The bill cites pending litigation (Sierra Club v. US
Forest Service) as preventing "timely action to reduce the risk of wildland
fire." The legislation exempts forest management activities in the Black
Hills from environmental laws such as the National Environmental Policy Act
and the National Forest Management Act. The legislation also exempts timber
cutting as part of a fuels treatment project from public notice and comment
as well as judicial review and appeals.
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