The healthy forests initiative: unhealthy policy choices in forest and fire management.
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. (11) Recent studies, however, show that these delays are hardly substantial, as nearly 80 percent of them are resolved within 90 days. (12) Nevertheless, the Initiative proposed a controversial administrative and legislative agenda aimed at simplifying and expediting implementation of fuels reduction and other forest management projects, and increasing timber harvest.
Finding appeals of forest management decisions "complex, time consuming, and burdensome," (13) the Forest Service adopted regulations altering notice, comment, and administrative appeals for projects and activities (14)--including fuels reduction projects and timber sales--which implement land and resource management plans developed pursuant to the National Forest Management Act (NFMA). (15) The United States Bureau of Land Management (BLM) adopted similar regulations. (16) The Initiative then targeted the environmental analysis and documentation requirements of the National Environmental Policy Act (NEPA) (17) for thinning projects, timber sales, and salvage operations. (18) Citing Forest Service complaints about "excessive analysis" of forest projects, (19) the Forest Service and BLM developed new categorical exclusions from NEPA analysis for fuels reduction activities (20) and for certain timber harvests. (21) The Initiative also developed an alternative to informal consultation under section 7 of the Endangered Species Act (ESA), (22) allowing agencies carrying out fire management activities to avoid any consultation. Collectively, these administrative changes greatly increase the discretion of management agencies by shortcutting procedures that Congress, through NEPA, NFMA, and the ESA, has prescribed to help agencies make the best decisions.
The Initiative also invoked the timber projections of the 1994 Northwest Forest Plan (Plan) (23) as one of its substantive components. The Initiative adopted the Plan's timber production objectives--which have never been realized--but not its original species conservation strategies, most notably the survey and manage rules (24) and its aquatic conservation strategy, (25) which the Bush Administration would later rescind or significantly weaken. (26) Conservation groups fear that the combined effects of these administrative changes will be a boon to the timber industry, allowing timber sales to proceed under the guise of wildfire safety, while reducing the public's ability to influence or appeal them. (27)
The Initiative has also produced legislation to fund and expedite fuels reduction projects. On December 3, 2003, President Bush signed the Healthy Forests Restoration Act (HFRA) (28) into law, probably the most significant forest management legislation since the National Forest Management Act of 1976. For selected fuels reduction projects, the HFRA authorizes diluted NEPA requirements, abbreviated administrative review, and deferential judicial review. (29)
This Comment examines the Initiative and its potential consequences for public lands management. Part II briefly describes how public forests arrived in their current condition and explains how wildfire management policy led to the Healthy Forests Initiative. Part III discusses the role of public participation and administrative appeals in the land management process, and explains how the new regulations may insulate not only fuels reduction projects, but all projects on public lands, including timber harvest, from public participation. It also explores the Initiative's significant changes to the Northwest Forest Plan in pursuit of increasing timber production. Part IV discusses the Healthy Forests Restoration Act's substantive provisions and their effects on judicial review and the operation of NEPA. The Comment concludes that the Healthy Forests Initiative is an irresponsible and ill-considered exercise in land management, arising from political and economic considerations and unsupported by sound scientific and legal principles.
II. BACKGROUND ON THE CURRENT FOREST HEALTH CONTROVERSY
Understanding the current forest health controversy requires some familiarity with its historical and policy context. This Part describes the forest management policies that led to the heightened wildland fire danger on federal lands. It then traces the evolution of management policy responses to this heightened danger, which in turn led to the Initiative.
A. The Source of the Problem: Exclusionary Fire Management
Early 20th century wisdom held the domestic supply of timber to be inexhaustible, and the Forest Service during this period functioned primarily as a timber reserve to supplement private timber supplies. (30) Under Gifford Pinchot's model of sustainable forestry, and in response to catastrophic fires in 1910, (31) Forest Service policy came to view forest fire as anathema to efficient federal timber production. A policy of vigorous fire suppression followed, of which the "10 a.m. policy" was a significant component. (32) At the turn of the century, most western forests were open and rather park-like, due to a history of relatively frequent fire which cleared underbrush and forest litter. (33) Precisely because fires had historically controlled forest fuel loads, the Forest Service enjoyed successful fire suppression. (34) By the 1960s, however, the costs of suppression began to grow without reducing fire danger. (35)
The Forest Service began to reconsider the effectiveness and wisdom of fire exclusion, and its wildland fire policy slowly changed from fire exclusion to more comprehensive fire management, using a combination of prescribed fire to reduce fuels, selective suppression of certain fires, and traditional suppression for others. (36) But in 1979, an upward trend in annual fire acreage began, caused by the buildup of combustible forest fuels over 75 years of vigorous fire suppression. (37) In the 1970s, increasing numbers of recreational forest users and residents of the growing "wildland-urban interface" (38) demanded greater fire suppression. (39) These two events diverted Forest Service resources from comprehensive fire reduction back into suppression. (40) But the buildup of forest fuels since the turn of the century had become so acute that annual fire acreage continued to climb despite the renewed suppression efforts. (41)
B. Development and Ascendancy of "Comprehensive" Fire Management
Partly in response to widespread scrutiny after the devastating fires in Yellowstone National Park in 1988 and the 1994 fire season in which 34 individuals died, (42) federal agencies developed a new wildland fire policy--the 1995 Federal Fire Policy. (43) Its two major innovations were the recognition of wildland fire as "an essential ecological process and natural change agent," and its collaborative approach to fire management. (44) Despite the new ecological direction of the 1995 Federal Fire Policy, management authorities struggled with the concurrent tasks of treating the millions of forest acres overstocked with forest fuels and protecting people and resources from the severe fare seasons that continued through the decade. (45) Then, in 1999, a report by the General Accounting Office criticized the Forest Service for lacking an aggressive fuels reduction strategy and for tying its fuels reduction budget to timber receipts. (46) Finally, after the severe fares of summer 2000, President Clinton directed the Secretaries of Agriculture and the Interior to prepare a report recommending how best to reduce fire threats to life and property and ensure adequate resources for future firefighting efforts. (47) The result was the National Fire Plan, which strongly emphasized the importance of fire prevention and fuels reduction. (48)
In October 2000, Congress directed the Departments of Agriculture and the Interior to develop a ten-year strategy for implementing the National Fire Plan, and to do so in collaboration with the states most affected by fire. (49) The agencies engaged the Western Governors' Association, (50) which quickly developed the 10-Year Comprehensive Strategy (51) and the 10-Year Comprehensive Strategy Implementation Plan. The 10-Year Comprehensive Strategy established several guiding principles: Fire management planning was to be a collaborative effort between agencies at all levels of government and interested stakeholders, (52) with primary decisionmaking authority at the local level. (53) The strategy focused strongly on mechanical means of fuels reduction (54) and emphasized that economic benefits accrue to local communities from fuels reduction, through marketing programs for by-products of thinning projects, commercial logging, and direct funding to help private landowners reduce the risk of fire to their properties. (55)
Thus, by May 2002, a detailed forest and fire management plan developed by collaboration among the western states, local interests, and the federal agencies was in place. That summer, fires scorched roughly seven million acres of forest land, (56) creating an atmosphere politically receptive to an even more aggressive approach to wildfire management. (57) On August 22, 2002, after touring areas of the Biscuit Fire in southern Oregon, (58) President Bush unveiled his Healthy Forests Initiative, which directly incorporated the 10-Year Comprehensive Strategy. (59) The Initiative's central premise was that excessive environmental analysis, burdensome administrative appeals, and unpredictable judicial review of forest management delay scientifically sound fuels reduction projects, leaving forest, resources, and communities at risk. (60) Founded on these premises, the Initiative set out to ease the administrative and legal barriers to timely and aggressive public forest management. The following Part discusses the Initiative's regulatory relief.
III. THE INITIATIVE'S REGULATORY CHANGES
The Initiative's regulatory package eased Forest Service and BLM rules providing for public notice, comment, and appeal of forest management projects, and issued regulations allowing new categorical exclusions from NEPA analysis. It also issued new streamlined Endangered Species Act consultation requirements for forest management projects. Lastly, the Initiative eased or removed the primary species-conservation measures of the Northwest Forest Plan. This Part discusses each in turn.
A. Streamlining Forest Service Notice, Comment, and Appeal Regulations
Commentators, including members of Congress, have described Forest Service decisions as unduly influenced by political concerns (61) and biased in favor of timber harvest (62) to the detriment of the Service's receptiveness to larger public involvement. (63) Public participation in administrative decision making contributes valuable information to the process, lending legitimacy to agencies' actions and serving as an "early warning system" to agencies by alerting them to new management issues as they arise. (64) Administrative appeals are also likely to apply a more substantive standard of review than would be the case in judicial review, thus making administrative appeals potentially satisfying to even a losing appellant. (65) Both NEPA and NFMA contain provisions embodying the notion that agency planning benefits from meaningful public participation. (66) Yet, despite the Initiative's claims to embrace collaborative planning, it immediately targeted public participation as a fundamental barrier to effective forest management. (67)
Projects implementing forest management plans (68)--including the mechanical fuels treatments, salvage operations, and timber sales advocated by the Initiative--are subject to a notice, comment, and administrative appeals process required by a 1992 amendment to NFMA known as the Appeals Reform Act (ARA) (69) Congress passed the ARA to safeguard public involvement in Forest Service decision making after the agency proposed regulations which would have eliminated administrative appeals of project decisions altogether. (70) The Forest Service issued regulations implementing the ARA in 1993. (71) As part of the Healthy Forests Initiative, the Forest Service revised the ARA's impelementing regulations and arguably increased the agency's ability to circumvent administrative appeals. (72) The following sections discuss these changes.
1. Avoiding Administrative Appeals by Authorizing Direct Final Agency Action
The new regulations added a provision declaring, "Decisions of the Secretary of Agriculture or Under Secretary, Natural Resources and Environment[,] are not subject to the notice, comment, and appeal procedures set forth in this part. A decision by the Secretary or Under Secretary constitutes the final administrative determination of the Department of Agriculture." (73) That is, if the Secretary or Under Secretary, instead of the local decision-making officer, authorizes the project, that decision is immediately final agency action (and not subject to notice, comment, and appeal). All comments regarding this provision opposed it. (74) Undeterred, the agency noted that decisions by the Secretary and Under Secretary have never been subject to administrative appeal. (75)
According to the Montana district court in Wilderness Society v. Rey, (76) this provision may violate the ARA. (77) In Rey, Under Secretary of Agriculture Mark Rey had approved a Forest Service salvage sale instead of the Chief of the Forest Service approving it. The Forest Service then denied any post-decisional comment or appeal, maintaining that because the ARA's guarantee of an administrative appeal applied only to Forest Service decisions, and a non-Forest Service employee (Rey) had authorized the project, it was not Forest Service action for purposes of the ARA. (78) The court, concluding that the project was still Forest Service action, rejected this "novel approach to the law" as "mystical legal prestidigitation." (79) The court, therefore, held that Rey had violated the ARA by refusing to allow administrative appeal, and enjoined the sale pending Forest Service compliance with the ARA. (80) The court observed that Congress envisioned the ARA as creating two tiers of public participation: pre-decisional notice and comment and post-decisional appeals. (81) Thus, the Initiative's new regulation, by purporting to allow the Secretary or Under Secretary to make a decision immediately final and therefore exempt from the ARA-mandated appeals process, appears to be an attempt to authorize by regulation the exact agency action the Rey court held to be forbidden by statute. (82) It is therefore vulnerable to invalidation on the same grounds.
2. Restricting Who May Appeal
The Forest Service also issued regulations changing appeal eligibility. The ARA affords a right of appeal to "a person who was involved in the public comment process ... through submission of written or oral comment or by otherwise notifying the Forest Service of their interest in the proposed action." (83) The new regulations condition appeal eligibility on timely submission of "substantive written or oral comments," (84) which the Forest Service justified as encouraging "early and meaningful public participation when it is most useful..., during planning." (85) The old regulations also had encouraged early participation, but had conditioned appeals eligibility only on the appellant's expression of interest in the proposed action. (86) The new regulations instead seem to impose a more demanding, yet uncertain substantiveness requirement, highly dependent on the decision maker and underlying project, giving the Forest Service a technical ground on which to dismiss potentially meritorious appeals. (87)
New appeals-content requirements impose much more detailed explanations of the grounds for appeal. (88) The new regulations also eliminate "administrative intervention," which essentially allowed an interested intervenor to brief a position in another party's appeal, despite not having submitted predecisional comment, a procedure which allowed the agency to consider a broader cross section of public opinion. (89) While the new appeals regulations do not change any underlying substantive standards, they increase the burdens on appellants and expand procedural grounds for dismissal. In doing so, they do not seem to express receptiveness to early public participation, contrary to what the Forest Service professes, but instead a hostility to participation in the appeals process or even consideration of a larger cross section of public opinion.
3. Expanding the Definition and Effects of Emergency Situations
Another important change the Initiative has made in the regulatory landscape of forest management concerns "emergency" determinations. (90) Under the new regulations, an emergency determination made by the Forest Service Chief or a Regional Forester is now sufficient to justify immediate implementation of the project, even if an appeal of that project is pending. (91) In contrast, non-emergency projects cannot begin within 60 days of being authorized. (92) The regulations then redefine "emergency" to include impending "substantial loss of economic value to the Federal Government," a change clearly aimed at bringing salvage operations within the definition of emergency. (93) This definition may encourage the Forest Service to create artificial "emergencies" by casting project decisions in economic terms to take advantage of this new definition. Because the project may go forward even while an appeal is pending, the Forest Service may be able to moot even successful administrative appeals, rendering the ARA's right to an appeal largely devoid of meaning. Particularly after Wilderness Society v. Rey, in which the district court puzzled over the Forest Service's reluctance to use its emergency authority, the addition of this economic "hook" to the definition of emergency should significantly reduce its reluctance, while increasing the politicization of such decisions. (94)
B. Streamlining Department of the Interior Regulations
Several changes to BLM regulations appear designed to accelerate project implementation and weaken public participation. (95) First, the regulations now impose judicial standing requirements for appellants of BLM land management decisions, requiring appellants to show injury to a legally cognizable interest. (96) This seems likely to narrow the group of potential appellants, although the agency disagrees. (97) Second, BLM may now make "wildfire management" decisions effective immediately when the agency determines that lands are at immediate risk of damage from wildfire. (98) The effect of such a determination is to exempt BLM from its own regulations--regulations designed to prevent a land management decision from taking effect during the appeals period. (99) Next, BLM refused, despite public urging, to adopt a diameter limit for trees removed in timber sales "incidental" to fuels reduction projects. (100) Finally, BLM refused, again over public urging, to confine its new emergency discretion to fuels reduction projects in the wildland-urban interface. (101) Thus, like the new Forest Service regulations, BLM's new regulations may insulate its decision making from public participation and appeal, despite preexisting authority to issue emergency determinations to allow truly imperative projects to go forward. (102) The breadth of the agencies' new discretion suggests the regulations are intended not only to safeguard against wildfire emergencies, but also to maximize agency discretion to avoid administrative appeals.
C. Categorically Excluding Forest Management Decisions from NEPA Analysis
The Initiative also weakened the implementing regulations of NEPA. These regulations define a "categorical exclusion" (CE) as "a category of actions which do not individually or cumulatively have a significant effect on the human environment and ... for which, therefore, neither an environmental assessment nor an environmental impact statement is required." (103) Agencies wishing to avoid NEPA's time-consuming analysis, (104) documentation, (105) and public disclosure requirements (106) may fred CEs a tempting option. (107) Succumbing to this temptation, the Initiative promulgated two groups of new categorical exclusions, one for fire management activities (108) and the other for limited timber harvest. (109) Although their titles imply that they serve different purposes, their significant overlap was surely not accidental, as the agencies have acknowledged. (110)
1. Categorical Exclusions for Fire Management Activities
The Forest Service issued two new CEs for fire-related projects. The first excuses both BLM and the Forest Service from preparing environmental assessments (EAR) or environmental impact statements (EISs) for certain hazardous fuels reduction projects using prescribed fire and mechanical thinning,m This applies to hazardous fuels reduction projects under 4,500 acres which use prescribed fire, and projects under 1,000 acres which use mechanical methods such as brush removal, noncommercial thinning, and commercial logging. (112) The sale of vegetative material produced by projects authorized under this CE is permissible so long as fuels reduction is the project's primary purpose. (113) With the Initiative's proposal that commercial logging itself be used as a means of fuels reduction, these CEs could potentially categorically exclude from EA or EIS preparation any timber sale under 1,000 acres. (114) Again, science does not support the Initiative, as the effectiveness of commercial logging as a fuels reduction technique has never been studied empirically, and anecdotal evidence suggests it exacerbates fire severity. (115)
The second fire-related CE is important for salvage operations. It applies to "[p]ost-fire rehabilitation activities, not to exceed 4,200 acres ... to repair or improve lands unlikely to recover to a management-approved condition from wildland fire damage." (116) While scientists and the agencies disagree over the wisdom of salvage operations, (117) this CE is another authority the agencies did not need: Each agency had several other categorical exclusions at its disposal, (118) which the agencies had put to good use historically, exempting from NEPA analysis 43 percent of forest projects to which the new CEs will apply. (119) Moreover, it seems quite doubtful that 1,000-acre timber sales and 4,200-acre rehabilitation projects could never "individually or cumulatively have a significant effect on the human environment," the regulatory requirement for categorical exclusion. (120)
2. Categorical Exclusions for Timber Harvests
The second group of CEs exempts the Forest Service from preparing an EA or EIS for 1) timber harvest of live trees up to 70 acres, (121) 2) salvage of dead, dying, or fire-damaged trees up to 250 acres, (122) and 3) up to 250 acres of commercial "sanitation" harvest to control insects or disease and prevent infestation or infection of adjacent healthy forests. (123) However, the magnitude of the timber harvest authorized by these CEs without environmental analysis may be unlawful according to Heartwood v. United States Forest Service. (124) In Heartwood, the district court invalidated Categorical Exclusion 4 (CE 4), (125) which had authorized harvest of live trees up to 250,000 board feet or salvage harvest up to 1,000,000 board feet without preparing an EA or EIS. (126) Before promulgating CE 4 in 1992, the Forest Service had used an interim CE for logging, thinning, and salvage harvest up to 100,000 board feet. (127) Thus, CE 4 represented a two-and-a-half-fold increase in the limit for live trees and a ten-fold increase for salvage. These increases were arbitrary and capricious given the Forest Service's bare assertion that they would have no significant effect on the environment, so the court imposed a nationwide injunction on the use of CE 4. (128)
The new CEs are likely meant to fill the gap left by the invalidation of CE 4, and the Forest Service has acknowledged as much. (129) The agency emphasized that the new CEs are "much more limited in scope" than CE 4, (130) but this does not seem credible: CEs 12 and 13 define their size limits in terms of acreage as compared with CE 4's volume limits. After converting acreage to volume, CEs 12 and 13 would permit equal or greater timber harvests than CE 4, and thus are also susceptible to being invalidated under Heartwood, since the Forest Service justified them with bare assertions much like those rejected in Heartwood. (131)
3. Redefining Extraordinary Circumstances
NEPA regulations require that agencies, when developing CEs, set forth "extraordinary circumstances" in which normally categorically excludable actions may have significant environmental effects. (132) Old Forest Service guidance stated that examples of extraordinary circumstances included the presence of listed species, municipal watersheds, wilderness or wilderness study areas, inventoried roadless areas, American Indian religious or cultural sites, and archeological sites. (133) New guidance states that these same factors are now merely "resource conditions that should be considered" to determine whether extraordinary circumstances exist, and thus whether using the CE is appropriate. (134) The Forest Service then made explicit that the "mere presence of one or more of these resource conditions does not preclude use of categorical exclusion." (135) Whether these resource conditions in fact constitute an extraordinary circumstance has become yet another important determination firmly within the discretion of the Forest Service. (136)
D. Streamlining Endangered Species Act Consultation Requirements
The next accomplishment of the Initiative was the introduction of an optional alternative to consultation under section 7 of the Endangered Species Act for projects designed to reduce the risk of catastrophic wildland fires. (137) Section 7(a)(2) of the ESA requires federal agencies, before undertaking any action, to consult with the United States Fish and Wildlife Service (FWS) or the National Oceanographic and Atmospheric Administration Fisheries (NOAA Fisheries) to ensure that the action is "not likely to jeopardize the continued existence" of any listed species or adverse modification of critical habitat. (138) The ESA's implementing regulations allow an optional informal consultation process by which, after written concurrence by either FWS or NOAA Fisheries with the action agency's determination that the action is not likely to adversely affect a listed species, an action agency may avoid formal consultation while satisfying the requirements of section 7. (139)
The new Bush Administration regulations create an alternative to informal consultation for projects designed to reduce wildland tire danger, eliminating the need for the consultation agency's written concurrence with FWS's or NOAA Fisheries' not-likely-to-adversely-affect determinations. (140) To avail themselves of this alternative process, the management agencies must enter Alternative Consultation Agreements (ACAs) with FWS or NOAA Fisheries. (141) The regulations impose minimum training requirements for management agency personnel who will make the not-likely-to-adversely-affect determinations, (142) establish oversight requirements by FWS or NOAA Fisheries, (143) and allow for termination of the ACA for management agency noncompliance. (144) As of this writing, BLM and the Forest Service have each executed ACAs with FWS and NOAA Fisheries. (145)
One can only speculate what effects these regulations will have. The preamble to the regulations says that the beleaguered consultation agencies will be able to return their focus to federal actions likely to adversely affect listed species, to the species' ultimate benefit. While the consultation agencies must employ "best scientific or commercial data," (146) action agencies generally operate under no such requirement, which raises the possibility that expedited not-likely-to-adversely-affect determinations will be based on less-than-best data. On the other hand, the ACAs explicitly require the agencies to use these higher standards. (147) It is unmistakable, however, that by removing the concurrence of FWS and NOAA Fisheries--the agencies most knowledgeable and devoted to species conservation--the discretion of the management agencies is greater, true to form for the Initiative as a whole. (148) These consultation agreements may run afoul of the plain command of section 7(a)(2) that the management agencies consult with FWS and NOAA Fisheries to insure that federal actions do not jeopardize species. The agencies respond that the new regulations do not change the statutory requirement for formal consultation when agency actions are likely to have adverse effects. (149) This response--that the consultation agencies simply determine when adverse effects are likely, and the action agencies may determine when adverse effects are not likely--is a splintered and unsupportable interpretation of the ESA's consultation requirement. (150) The consultation requirement itself is recognition that the action agency and consultation agencies, despite the training of their staffs, often have divergent perspectives on the impact of a proposed action on endangered species; through the consultation requirement, Congress stated its judgment that the convergence of their opinions was procedurally the most reliable means of avoiding jeopardy. (151) In that sense, the new joint counterpart regulations discard this judgment of Congress, thus rejecting the collective expertise of two federal agencies whose statutory missions are to protect species.
E. Overhauling the Northwest Forest Plan to Increase Timber Harvest
The last administrative piece of the Healthy Forests Initiative was entitled, "Fulfilling the Promise of the 1994 Northwest Forest Plan"--the "promise" being the Plan's projected timber sale quantities. (152) The fact that the Initiative seeks to achieve the Plan's timber harvest projections as a complement to fuels reduction is a salient indication that timber harvest and fuels reduction may in fact be coequal objectives of the Initiative.
The Plan arose out of events of the late 1980s and early 1990s, when court injunctions crippled commercial logging on Northwest federal forests. Courts held that the Forest Service and BLM failed to adequately consider the effects of timber sales on species associated with old growth forests, most famously the northern spotted owl. (153) The Forest Service and BLM created the Northwest Forest Plan in April 1994 to restart timber sales by providing a framework to ensure compliance with NEPA, NFMA, and the ESA. (154) Covering 24.4 million acres of Northwest forests, the Plan created old growth reserves where logging was prohibited. (155) Logging was permitted elsewhere, so long as the agencies performed specified mitigation measures. (156) Timber sales proceeded under the Plan, but at levels well beneath its timber targets, (157) primarily due to Forest Service and BLM failures to comply with the species conservation measures. (158) Thus, the Northwest Forest Plan's unfulfilled promise, as the Initiative mischaracterized it, was really the failure of federal agencies to comply with the Plan. (159)
Nonetheless, the Initiative optimistically noted that four lawsuits had been filed against the Forest Service and BLM for failing to achieve the Plan's timber goals and that "the Administration [was] working with interested elected officials, and community leaders ... to resolve the pending litigation." (160) In fact, the Administration resolved the litigation the following summer, settling all four lawsuits on very favorable terms to the timber industry plaintiffs. (161) Pursuant to the settlement agreements, the Forest Service and BLM rescinded the Plan's survey and manage requirements, (162) and severely weakened the aquatic conservation strategy. (163) Thus, to allow greater timber harvest, the Initiative has essentially rescinded the hallmark ecosystem management approach of the Northwest Forest Plan, (164) an approach the reviewing court noted was central to the Plan's compliance with the ESA, NEPA, and NFMA. (165)
IV. THE HEALTHY FORESTS RESTORATION ACT OF 2003
On December 3, 2003, President George W. Bush signed into law the Healthy Forests Restoration Act (HFRA or Act), (166) the final piece of the Healthy Forest Initiative. Probably the most significant forest management legislation since the National Forest Management Act of 1976, the HFRA was the culmination of years of effort to pass comprehensive forest health legislation to reduce wildland fires and their economic and human costs. (167) For the first time, the Act imposes a specific statutory duty on forest managers to conduct fuels reduction projects, the planning and implementation of which are the focus of Title I of the Act and the focus of great controversy. (168) This Part examines the Act, its legislative history, and its anticipated effects. Analysis of the Act reveals that, while its changes are less serious than originally proposed, it still sweeps more broadly than necessary to improve forest health and protect rural communities from fire. This is another indication that increased timber production from federal forests was a high priority of the Initiative.
Immediately following the unveiling of the Initiative, the House of Representatives introduced two bills aimed at improving federal agencies' capacities to deter wildfire. (169) Coming on the heels of the severe fire season of 2002, each contained alarmist language about the risk of catastrophic wildfire. (170) Despite the rhetoric, the 107th Congress passed neither bill, although each contained provisions similar to those currently appearing in the HFRA. (171)
The next spring, Representative McInnis (R-Colo.) introduced House Bill 1904,172 essentially the Bush Administration's proposal, which would eventually become the Healthy Forests Restoration Act. This bill was on the whole more aggressive in its fuels treatment, gave more discretion to the Forest Service and BLM, and made greater changes to environmental laws and judicial review than any of its predecessor bills. The bill passed quickly in the House, (173) but stalled in the Senate over fears of a filibuster by Senate Democrats. (174) The bill did not seem destined to reach the Senate floor until mid-October 2003, when deadly fires broke out in the southern California foothills. (175) These fires, which scorched 750,000 acres and 3,640 homes and took 23 lives, increased the political pressure to reach a compromise. (176) With this impetus, a group of ten senators, mostly from the West, brokered a compromise, settling the divisive issues of fuels project funding, proposed old growth protections, and provisions about judicial review, public participation, and NEPA alternatives analysis. (177) President Bush signed the Healthy Forests Restoration Act into law only a month later.
A. Planning, Prioritizing, and Funding Hazardous Fuels Treatments
The purpose of the Act is "to reduce wildfire risk to communities, municipal water supplies, and other at-risk federal land through a collaborative process." (178) To accomplish this goal, the Act directs the Secretaries of Agriculture and the Interior to conduct "authorized hazardous fuels reduction projects" as soon as practicable, (179) Notably, the Act authorizes funding for projects on both federal and nonfederal lands, although it explains little about its applicability to fuels reduction on nonfederal lands. (180) Fuels reduction projects on federal lands must comply with current land and resource management plans (LRMPs), as well as with any pertinent species conservation and recovery plans under the section 4 of the Endangered Species Act, and may not be carried out in Wilderness or Wilderness Study Areas. (181) The Act authorizes treatment of no more than 20 minion acres of public lands, though no size limit exists for individual projects. (182)
The HFRA requires the Forest Service to develop an annual program of fuels reduction projects, giving priority to at-risk communities that have developed wildfire protection plans.183 This should serve the valuable function of providing federal funding incentives to communities to examine where they are most fire-prone, and plan accordingly. For projects on federal land, at least 50 percent of appropriations for fuels reduction projects must go to projects in the wildland-urban interface (WUI). (184) Because it constrains the discretion of agency planning, this funding priority is an improvement over House Bill 1904, which contained no comparable planning constraints, (185) Nonetheless, the Forest Service and BLM still retain much discretion in prioritizing because they may allocate funds differently within individual management units, so long as WUI treatments receive 50 percent of funding nationally. Further, the Act contains no specific allocation of project funding between federal and nonfederal lands, allowing the Forest Service and BLM much latitude in how and where to conduct projects. (186)
The Act also authorizes up to $760 million in annual appropriations for hazardous fuels reduction, yet another improvement over House Bill 1904, which contained no dedicated funding. (187) This authorization indicates a congressional intent to insulate the agencies from the financial pressure of harvesting more timber as a way of getting more bang for their fuels reduction buck, something which Congress has criticized the Forest Service for doing. (188) Congress would be wise to provide the full amount of $760 million to encourage the agencies to focus on the WUI and other areas with high fuel densities, where costs of treatment--and risks of life and property loss--are higher.
The HFRA requires projects to "fully maintain, or contribute toward restoration of, the structure and composition of old growth stands according to the ... forest type." (189) Further, projects must focus "largely on small diameter trees, thinning, strategic fuel breaks, and prescribed fire to modify fire behavior" and maximize the "retention of large trees, as appropriate for the forest type, to the extent that the trees promote fire-resilient stands." (190) This affirmative directive to the agencies regarding project design is a significant improvement over House Bill 1904, which allowed "the Secretary concerned, in [his] sole discretion, ... [to] plan and conduct an authorized fuels reduction project so as to maintain species composition, size class distribution, and density of trees." (191) This "sole discretion" language, particularly in the context of a statutory scheme deferential to agency determinations, may have precluded judicial review of agency project design. (192) Fortunately, the Senate deleted this provision, suggesting an intent that projects maintain large and old growth trees in reference to forest ecology, and that project planning be judicially reviewable. (193) Thus, the Act appreciably improves planning over House Bill 1904 by quantifying a priority for the WUI, attempting to protect old growth, and encouraging community planning.
B. Streamlining NEPA Environmental Analysis
The HFRA is the first permanent amendment to NEPA (194) and gives the Forest Service and BLM a streamlined alternatives analysis procedure. (195) For each fuels project authorized by the HFRA, the relevant Secretary must prepare an EA or EIS, with alternatives analysis limited to a maximum of three alternatives: the proposed action, a no-action alternative, and an additional action alternative. (196) The additional action alternative need be studied only if it "meets the purpose and need of the project," (197) and is proposed early in the planning process. (198) The agencies seem to have broad discretion in declaring when a given alternative satisfies this "purpose and need" provision. (199) The Act provides two variations to the three-alternative baseline: Where the proposed project is in the WUI, the Secretary need only study the proposed alternative and the additional action alternative, without studying a no-action alternative. (200) For projects that are both within the WUI and within one and a half miles of the community at risk from wildfire, no alternatives analysis is required at all. (201) This exception may prove quite significant, for only rarely will the WUI ever extend beyond one and a half miles of an at-risk community boundary, and therefore nearly any project within the WUI would be exempt from alternatives analysis. (202)
The Act's NEPA provisions are troubling. First, their invitation to the agencies to make decisions informed only by a limited analysis of the problem is unwise given the limited extent of our knowledge of fire adapted ecosystems. (203) Moreover, they represent a symbolic repudiation of the values of NEPA. NEPA regulations have described alternatives analysis as the "heart" of NEPA, (204) because it requires careful examination of courses of action using an interdisciplinary approach, (205) public input and disclosure, (206) and interagency review (207) to help agencies make the best possible choices. Despite the administrative burden, there is little doubt that requiring alternatives analysis and subjecting this analysis to judicial review have improved the wisdom of agency actions. (208)
NEPA regulations make clear that the statute's purpose "is not to generate paperwork--even excellent paperwork--but to foster excellent action." (209) Recently, the Forest Service has complained that NEPA analysis is merely costly, burdensome paperwork, more useful for surviving subsequent judicial review than for producing wise decisions. (210) This suggests that the agency labors under the very misconception of NEPA that the statute's implementing regulations so clearly reject, and is trying to produce "excellent paperwork" to insulate pre-determined decisions from judicial review. By relieving agencies of some of their NEPA analysis obligations, Congress has to some degree adopted the Forest Service's position. The Act sends a message that agencies weary of NEPA analysis have a sympathetic ear in Congress, which may grant NEPA 'relief if the agency complains loudly enough. This may set a dangerous precedent, one that agencies and Congress may find difficult to resist. (211)
C. Public Involvement and the "Special Administrative Review Process"
The Act exempts fuels reduction projects from the right to administrative appeal otherwise provided by the Appeals Reform Act, (212) and substitutes an abbreviated "predecisional administrative review process" to be established by regulation. (213) The predecisional review period starts with the completion of the project's EA or EIS, and ends at the date of the final decision. (214) To participate in this review process, an appellant must have submitted "specific written comments that relate to the proposed action" during scoping or the public comment period for the project. (215) Participation in this administrative review process is a part of an appellant's exhaustion requirements for judicial review, (216) and judicial review is available only for issues raised during the administrative review process. (217) The overall effect, therefore, is to link federal court standing to the specificity of an appellant's participation in planning stages of the project.
These provisions emphasize the value of early participation in the decision-making process by establishing severe consequences for failing to participate in it--forfeiture of both administrative appeal and judicial review. But this forfeiture may damage the agencies' public legitimacy by making their decision-making processes appear rigid, predetermined, and unreceptive to public participation. The practical effect, in turn, may be that parties feel obligated to present all possible objections during the review process, and to the pro forma administrative appeals in order to preserve their rights to judicial review while a project's legality becomes clearer. These protective filings may cost the agencies all the efficiency they had sought.
D. Judicial Review
1. Limiting Venue and the Statute of Limitations for Appeals of Fuels Projects
The HFRA contains a special venue provision limiting judicial review to the district court in which the federal land to be treated under the project is located. (218) This provision keeps judicial review out of the District of Columbia District and Circuit courts, where judges may be less deferential to agency decisions, perhaps due to their being less sympathetic to local economic concerns. (219) Fortunately, the Act imposes no statute of limitations provisions for judicial review, an improvement over House Bill 1904's strict 15-calendar-day statute of limitations, which both the agency or reviewing courts would have been forbidden to waive. (220) Perhaps acknowledging what a formidable barrier to judicial review this provision could have been, Congress removed it from the Act.
2. Expedited Review and the Standard for Injunctive Relief
The Act implores judges to expedite judicial review of fuels projects, but does not establish a deadline for determination on the merits. (221) Courts may issue preliminary injunctions of fuels projects for up to 60 days (222) and may renew them. (223) The Act contains a standard of preliminary relief for district courts and courts of appeals: "The court reviewing the project shall balance the impact to the ecosystem likely affected by the project of--(A) the short- and long-term effects of undertaking the agency action; against (B) the short- and long-term effects of not undertaking the agency action." (224) This standard seems susceptible to at least two different interpretations. On the one hand, Congress deleted a provision of House Bill 1904 explicitly requiring deference to the agency's determination of the equities, implying that Congress intended to limit reviewing courts' deference to agency discretion. (225)
On the other hand, this standard still seems more deferential than the traditional standard for injunctive relief: a showing of "either a combination of probable success on the merits and the possibility of irreparable injury or that serious questions are raised and the balance of the hardships tips in [the plaintiff's] favor." (226) The HFRA's balancing provision omits any reference to probable success on the merits, or indeed any legal question at all. By ignoring underlying substantive legal issues, the provision could be read to require courts to overlook probable statutory violations if the project is considered sufficiently important. (227) This interpretation of the Act is consistent with the global scheme of the Healthy Forests Initiative--loosening constraints on management agencies' discretion.
The regulatory and legislative branches of the Healthy Forests Initiative rest on fundamentally unsound premises. The Initiative begins by simply asserting that empirical and scientific data support a policy change. (228) In fact, rigorous scientific studies undermine the Initiative's narrow focus on mechanical fuels reduction, (229) particularly the Initiative's unfounded notion that commercial timber harvest and salvage will improve forest and fire conditions. (230) Second, the Initiative stems from the Forest Service's complaints that administrative and judicial review of agency decisions significantly delays valuable projects. (231) Again, the facts are otherwise. (232) Further, and contrary to a perhaps widely held public belief, environmental interests do not appear to comprise an overwhelming majority of appellants. (233) And, because the Forest Service has been reluctant to provide the data on which the Initiative policy decisions have been based, (234) and historically has analyzed data selectively to support its ultimate decisions, (235) the public has little reason to be confident in the underlying factual premise of the Initiative.
Proceeding from the dubious--if not false--premise that the data support policy changes, the Initiative then makes unsound choices. The first is that public participation is of limited value. While the value of something is, of course, subjective, a wide cross section of the public participates in the appeals process, and these appeals are surprisingly effective at changing outcomes. (236) Reduced public participation in agency decision making may in fact exacerbate the problem of politics and budgets producing agency decisions unresponsive to the public. (237) The assumption that meaningful public involvement produces more administrative costs than public benefits is the fundamental premise beneath the Initiative's restrictions on public notice, comment, and appeal, (238) and its expansive redefinition of "emergency" circumstances. (239) The HFRA further reflects this judgment by exempting planning for fuels reduction projects from the Federal Advisory Committee Act. (240)
A similar underlying conclusion is that NEPA is an undue burden on agency decision making and an enemy of forest health and public safety. (241) Concededly, the efficacy of NEPA is a widely debated question with strong arguments on each side. However, prudence would seem to counsel against removing such an important procedural safeguard before clear and well-supported reasons demand it. Legislatively, the Initiative has truncated NEPA analysis for fuels reduction projects, (242) a broad and vaguely defined set of activities in which the agencies include timber harvest, and whose efficacy in reducing fires has little empirical support. (243) By categorically excluding these projects from NEPA analysis, the Initiative has administratively exempted these projects from public comment and administrative appeal. (244)
The Initiative also overlooks the agencies' ample preexisting authority to handle forest management crises. Again, prudence would suggest that such a drastic expansion of the executive branch's discretion should not be necessary to achieve its goals. Yet, the agencies have long had special emergency authorities. (245) Before the Initiative, the Forest Service was intensively using categorical exclusions to carry out projects. (246) Thus, the Initiative hands the agencies a great deal of arguably unnecessary discretion while removing opportunities for constructive involvement by other agencies, scientists, and the public. In the context of forest and fire management, where the nature and magnitude of humankind's disruption of natural fire cycles is poorly understood, (247) does it not seem wiser to embrace the expertise of the public and other agencies than to reject it?
The Forest Service and BLM will face great challenges in using their new authorities responsibly. (248) The agencies would be wise to remember the old adage, "When all you have is a hammer, every problem looks like a nail." The Initiative has significantly enhanced the agencies' fire-management hammers; only time will tell if the Forest Service and BLM can avoid seeing every problem in house of forest management as a wildfire nail. Either way, public participation and judicial review are now less able to help the agencies select the proper tools.
Commentators have suggested that administrative actions be measured by the three criteria of wisdom, efficiency, and legitimacy. (249) An agency's wisdom is a function of its technical correctness and the desirability of the outcomes it produces. (250) Administrative legitimacy is, at least in part, an assurance to affected parties that participation in the decision-making process is worth the effort. (251) Efficiency focuses on maximizing the cost-effectiveness and timeliness of administrative action. (252) While no perfect balance may exist among these values, the Healthy Forests Initiative has clearly staked the health of America's forests on efficiency. By proceeding without the benefit of a sound factual or scientific anchor, the wisdom of the Initiative is highly questionable. The Initiative's emphasis on streamlining procedures will likely damage the public's ability to affect outcomes and, in turn, damage the legitimacy of the Initiative and its implementing agencies. (253) Ironically, the Initiative's focus on efficiency may be all for naught, for unexpected and unwelcome outcomes, agency illegitimacy, and public distrust may prove to be greater impediments to efficient forest management than environmental laws ever were.
(1) THE WHITE HOUSE, HEALTHY FORESTS: AN INITIATIVE FOR WILDFIRE PREVENTION AND STRONGER COMMUNITIES (2002) [hereinafter HEALTHY FORESTS INITIATIVE], http://www.whitehouse.gov/infocus/healthyforests/Healthy_Forests_v2.pdf.
(2) See Hutch Brown, U.S. Forest Serv., Reducing Fire Danger: Is Current Policy on Course?, FIRE MGMT. TODAY, Fall 2001, at 18, 23 (stating that 71 million acres of national forest are at elevated risk from wildland fires that could compromise ecosystems and human safety), http://www.fs.fed.us/fire/fmt/fmt_pdfs/fmt61-4.pdf.
(4) STEPHEN F. ARNO & STEVEN ALLISON-BUNNELL, FLAMES IN OUR FOREST: DISASTER OR RENEWAL? 20 (2002).
(5) Id.; Paul Trachtman, Fire Fight, SMITHSONIAN, Aug. 2003, at 2, available at http://www.smithsonianmag.com/smithsonian/issues03/aug03/pdf/ smithsonian_august_2003_fire_fight.pdf.
(6) See Brown, supra note 2, at 23 (stating that past uses of forestry for fire control greatly exacerbated historical fire regimes and has troubling implications for the future). According to Brown, approximately 71 million acres of national forest are at elevated risk of damage from wildland fire. Id. According to the Healthy Forests Initiative, 190 million acres of public lands are at risk. U.S. DEP'T OF AGRICULTURE & U.S. DEP'T OF THE INTERIOR, FACT SHEET: PROGRESS REPORTED ON IMPLEMENTING PRESIDENT BUSH'S HEALTHY FORESTS INITIATIVE 1 (2004) [hereinafter FACT SHEET], www.usda.gov/Newsroom/fs0044.04.pdf.
(7) ARNO & ALLISON-BUNNELL, supra note 4, at 21 fig.2.1, 22-23. In the late 1970s fire suppression costs had increased 8% annually since World War II. Id. at 23.
(8) U.S. DEP'T. OF AGRICULTURE & U.S. DEP'T. OF THE INTERIOR, FEDERAL WILDLAND FIRE MANAGEMENT POLICY AND PROGRAM REVIEW (1995) [hereinafter 1995 FEDERAL FIRE POLICY], http://www.fs.fed.us/land/wdfirex.htm.
(9) HEALTHY FORESTS INITIATIVE, supra note 1, at 8-9.
(10) Id. The nature of these by-products, of course, determines the description of the project. The Initiative acknowledged that by-products may range from shrubs to younger trees to large, commercially valuable timber. Id.
(11) Id. at 13. In taking this position, the Initiative echoed a Forest Service publication which stated that its operative regulatory and statutory framework places it in a decision-making "quagmire." U.S. FOREST SERV., THE PROCESS PREDICAMENT: HOW STATUTORY, REGULATORY, AND ADMINISTRATIVE FACTORS AFFECT NATIONAL FOREST MANAGEMENT 5 (2002) [hereinafter THE PROCESS PREDICAMENT]. The Initiative paid little heed, however, to several significant internal factors, including significant deterioration of its employee skills base, poor agency planning, and burdensome workloads, which the agency concedes are also responsible for the quagmire. Id. at 31-34.
(12) See U.S. GENERAL ACCOUNTING OFFICE, REPORT NO. 03-689R, FOREST SERVICE: INFORMATION ON DECISIONS INVOLVING FUELS REDUCTION ACTIVITIES 3-4 (2003) (concluding that 79% of fuels reduction project appeals to the agency were processed within 90 days, and that only 3% of projects were litigated) [hereinafter GAO, DECISIONS INVOLVING FUELS REDUCTION ACTIVITIES], available at http://www.gao.gov/new.items/d03689r.pdf.
(13) HEALTHY FORESTS INITIATIVE, supra note 1, at 14.
(14) See Notice, Comment, and Appeal Procedures for National Forest System Projects and Activities, 68 Fed. Reg. 33,582, 33,595-33,603 (June 4, 2003) (to be codified at 36 C.F.R. pt. 215).
(15) National Forest Management Act of 1976, 16 U.S.C. [subsection] 472a, 521b, 1600, 1611-1614 (2000) (amending Forest and Rangeland Renewable Resources Planning Act of 1974, Pub. L. No. 93-378, 88 Stat. 476).
(16) See Special Rules Applicable to Public Land Hearings and Appeals; Grazing Administrations--Exclusive of Alaska, Administrative Remedies; Grazing Administration--Effect of Wildfire Management Decisions; Administration of Forest Management Decisions, 68 Fed. Reg. 33,794 (June 5, 2003) (to be codified at 43 C.F.R. pt. 4).
(17) National Environmental Policy Act of 1969, 42 U.S.C. [subsection] 4321-4370f (2000).
(18) See infra Part III.C (discussing categorical exclusions from NEPA analysis).
(19) THE PROCESS PREDICAMENT, supra note 11, at 16.
(20) See National Environmental Policy Act Determination Needed for Fire Management Activities; Categorical Exclusions, 68 Fed. Reg. 33,814, 33,824 (June 5, 2003).
(21) See National Environmental Policy Act Documentation Needed for Limited Timber Harvest, 68 Fed. Reg. 44,598, 44,607-08 (July 29, 2003).
(22) Endangered Species Act of 1973, 16 U.S.C. [subsection] 1531-1543 (2000). Section 7 of the ESA is codified at id. [section] 1536.
(23) RECORD OF DECISION FOR AMENDMENTS TO FOREST SERVICE AND BUREAU OF LAND MANAGEMENT PLANNING DOCUMENTS WITHIN THE RANGE OF THE NORTHERN SPOTTED OWL (1994) [hereinafter NORTHWEST FOREST PLAN ROD], http://www.or.blm.gov/ForestPlan/ newroda.pdf.
(24) Id. at 33.
(25) Id. at 11.
(26) See To Remove or Modify the Survey and Manage Mitigation Measure Standards and Guidelines, 69 Fed. Reg. 3316 (Jan. 23, 2004) (removing the survey and manage requirements); Notice of Availability (NOA) of Final Supplemental Environmental Impact Statement (FSEIS) for the Clarification of Language in the 1994 Record of Decision for the Northwest Forest Plan, 68 Fed. Reg. 62,050 (Oct. 31, 2003) (weakening the aquatic conservation strategy). The FSEIS is available at http://www.reo.gov/acs/(last visited Nov. 13, 2004).
(27) See, e.g., Memorandum from Mike Anderson, Wilderness Society, Categorical Exclusions for Hazardous Fuels Reduction Projects 2 (June 5, 2003) (discussing the cumulative effects of the regulatory changes), http://wilderness.org/Library/Documents/upload/ Analysis-of-new-Categorical-Exclusion-regulations.pdf.
(28) Healthy Forests Restoration Act of 2003, 16 U.S.C.A. [subsection] 6501-6591 (West Supp. 2004).
(29) See infra Part IV (discussing the Act's provisions). President Bush also asked for legislation authorizing agencies to enter into long-term stewardship contracts with the private sector to allow "the private sector, non-profit organizations, and local communities ... to keep wood products in exchange for the service of thinning trees and brush and removing dead wood." HEALTHY FORESTS INITIATIVE, supra note 1, at 3. The Initiative claimed stewardship would decrease management costs to agencies, id. at 13, and encouraged private investment in fuels reduction equipment and technology to make use of the forest biomass removed during fuels reduction projects, id. at 3. But stewardship may also bring a loss of agency management authority, discretion, and accountability. See, e.g., FS and BLM Issue Stewardship Guidance: Enviros Object, PUB. LANDS NEWS, July 11, 2003, at 9 (discussing the possibility of timber companies "paying" themselves for perhaps overzealous forest management by harvesting larger, more commercially valuable trees, all with little agency oversight). Congress quickly responded via an appropriations rider, authorizing stewardship authority to the Forest Service and BLM until 2013. Consolidated Appropriations Resolution, 2003, Pub. L. No. 108-7, [section] 323, 117 Stat. 11,275 (2003).
(30) JOHN FEDKIW, U.S. FOREST SERV., MANAGING MULTIPLE USES ON NATIONAL FORESTS, 1905-1995: A 90 YEAR LEARNING EXPERIENCE AND IT ISN'T FINISHED YET 14 (1995). Fedkiw quoted the Forest Service's 1905 Use Book as defining the objective of the forest reserves as "preserving a perpetual supply of timber for home industries, preventing the destruction of forest cover which regulates the flow of streams." See id The demand on the public forests for timber production was not acute until after World War II; before that, private timber lands provided 98% of the nation's timber. Id. at 15.
(31) Farmed by hurricane force winds, fires in northern Idaho and northwestern Montana destroyed nearly three million acres of forest in just two days, taking 85 lives and destroying several towns. ARNO & ALLISON-BUNNELL, supra note 4, at 17-18. The events of August 20-21, 1910, became known as the Big Blowup. Id.
(32) See id. at 19-20 (describing the 10 a.m. policy as a "paramilitary campaign" against wildfire).
(33) See Brown, supra note 2, at 26-27.
(34) ARNO & ALLISON-BUNNELL, supra note 4, at 20. While strict fire exclusion was the dominant western management policy, some managers continued to advocate for use of prescribed fires to reduce catastrophic fire danger in certain areas. Particularly in the forests of the Southeast, where several commercially valuable species depended on fire for seed generation and protection from blight, fire gained recognition as a natural presence, even a useful tool in timber management. Despite continuing advocacy for extending this practice to western forests, the Forest Service staunchly resisted. Id. at 20-21.
(35) Brown, supra note 2, at 22.
(36) ARNO & ALLISON-BUNNELL, supra note 4, at 23. In 1967, the Forest Service reduced its vigilance in attacking early- and late-season fires, and the National Park Service began treating naturally ignited fires as "prescribed natural fires." Brown, supra note 2, at 22. ARNO & ALLISON-BUNNELL, supra note 4, at 24. In 1977, the Forest Service replaced the 10 a.m. policy and its cousin, the "10-acre policy," which had required immediate suppression of fires exceeding 10 acres in size, with a more flexible fire management contemplating the use of prescribed fire. Id
(37) ARNO & ALLISON-BUNNELL, supra note 4, at 21 fig.2.1. Total annual acreage--on both private and public lands--burned by wildfire declined starting in about 1920 until World War II, when it stabilized below one million acres, as the fire exclusion policy took root. It remained under one million acres until 1979, and has since been on the rise. Id.
(38) The wildland-urban interface, or WUI, is "[t]he line, area, or zone where structures and other human development meet or intermingle with undeveloped wildland or vegetative fuels." WESTERN GOVERNORS' ASS'N, A COLLABORATIVE APPROACH FOR REDUCING WILDLAND FIRE RISKS TO COMMUNITIES AND THE ENVIRONMENT: 10-YEAR COMPREHENSIVE STRATEGY 16 (2001) [hereinafter 10-YEAR COMPREHENSIVE STRATEGY], http://www.westgov.org/wga/initiatives/fire/final_fire_rpt.pdf.
(39) ARNO & ALLISON-BUNNELL, supra note 4, at 23.
(40) Id. Further, drought and climate change are probably significant contributors to the increasing frequency of modern severe fire. The late 1980s and most of the 1990s were characterized by below normal precipitation in the West, and the decade of the 1990s was the hottest in recorded history. GREGORY H. APLET & BO WILMER, THE WILDERNESS SOCIETY, THE WILDLAND FIRE CHALLENGE: FOCUS OF RELIABLE DATA, COMMUNITY PROTECTION, AND ECOLOGICAL RESTORATION 4 (2003), available at http://www.wilderness.org/Library/Documents/upload/Wildland-Fire -Challenge-report-withoutcovers.pdf.
(41) Id. at 21.
(42) Brown, supra note 2, at 22-23.
(43) 1995 FEDERAL FIRE POLICY, supra note 8, at 1.
(44) Id. at 8. Policy makers anticipated that several benefits would flow from these two innovations. The collaborative approach was meant to improve coordination of federal agencies to increase efficiency and reel in management costs. Another hoped for but unrealized benefit was standardization of federal policy. Policy makers encouraged intergovernmental cooperation between federal, state, county, local and tribal authorities, and participation of the private sector and the general public, in the hopes of increasing public safety, reducing property losses, gaining wider acceptance of fire as a public land management tool, and rehabilitating the overall legitimacy of federal fire policy. Id.
(45) Brown, supra note 2, at 22-23.
(46) U.S. GENERAL ACCOUNTING OFFICE, REPORT NO. RCED-99-65, WESTERN NATIONAL FORESTS: A COHESIVE STRATEGY IS NEEDED TO ADDRESS CATASTROPHIC WILDFIRE THREATS 7-8 (1999) [hereinafter GAO, A COHESIVE STRATEGY], http://www.gao.gov/archive/1999/ rc99065.pdf.
(47) Protecting People and Sustaining Resources in Fire-Adapted Ecosystems--A Cohesive Strategy, 65 Fed. Reg. 67,480, 67,480 (Nov. 9, 2000).
(48) The National Fire Plan consists of a collection of policy and planning documents: 1) the responsive reports of the Secretaries to the President, U.S. FOREST SERV., MANAGING THE IMPACTS OF WILDFIRES ON COMMUNITIES AND THE ENVIRONMENT: A REPORT TO THE PRESIDENT IN RESPONSE TO THE WILDFIRES OF 2000, at 1-2, (2000) [hereinafter WILDFIRE REPORT TO THE PRESIDENT], http://fire-ecology.org/policy/natl_fire_plan_exec_summary.pdf; 2) Congressional budget appropriations and the accompanying planning and spending direction, FY 2001 Department of the Interior and Related Agencies Appropriations Act, Pub. L. No. 106-291, 114 Stat. 922 (2001); and 3) the planning documentation requested by Congress, U.S. FOREST SERV., PROTECTING PEOPLE AND SUSTAINING RESOURCES IN FIRE-ADAPTED ECOSYSTEMS--A COHESIVE STRATEGY (2000), http://www.fs.fed.us/publications/2000/cohesive_strategy 10132000.pdf; U.S. DEP'T OF THE INTERIOR, INTEGRATING FIRE AND NATURAL RESOURCE MANAGEMENT--A COHESIVE STRATEGY FOR PROTECTING PEOPLE BY RESTORING LAND HEALTH (2001).
(49) See Tit. IV, 114 Stat. at 1010 (requesting the agencies to prepare a strategic plan detailing their plans to use the nearly $1 billion appropriated to address wildland fire danger, and to investigate the possibility of expedited NEPA compliance procedures). This was the first indication that Congress would be willing to consider relieving agencies from the burdens of compliance with bedrock environmental laws to facilitate wildland firefighting.
(50) The Western Governors' Association is a group of 21 Governors of western states devoted to protecting western regional interests, particularly in the areas of forestry, water, and energy policy. See WESTERN GOVERNORS' ASS'N, 2004 ANNUAL REPORT: A STRONG WESTERN VOICE (2004) (discussing these policies in detail), http://www.westgov.org/ annrpt04.pdf.
(51) The 10-Year Comprehensive Strategy declared itself to be a "broad cross-section of governmental and nongovernmental stakeholders." 10-YEAR COMPREHENSIVE STRATEGY, supra note 38, at 1. In its Implementation Plan, however, the 10-Year Comprehensive Strategy described itself as the product of an agreement between the Secretaries of Agriculture and the Interior, the Western Governors' Association, the National Association of State Foresters, the National Association of Counties, and the Intertribal Timber Council, groups primarily interested in timber receipts. WESTERN GOVERNORS' ASS'N, A COLLABORATIVE APPROACH FOR REDUCING WILDLAND FIRE RISKS TO COMMUNITIES AND THE ENVIRONMENT: 10-YEAR COMPREHENSIVE STRATEGY IMPLEMENTATION PLAN 4 (2002) [hereinafter 10-YEAR IMPLEMENTATION PLAN], http://www.westgov.org/wga/initiatives/fire/implem_plan.pdf.
(52) 10-YEAR COMPREHENSIVE STRATEGY, supra note 38, at 7.
(53) 10-YEAR IMPLEMENTATION PLAN, supra note 51, at 9.
(54) 10-YEAR COMPREHENSIVE STRATEGY, supra note 38, at 9.
(55) Id. at 11. The 10-Year Implementation Plan, and therefore the Healthy Forests Initiative which adopted it, explicitly recognized that these by-products will include a variety of materials, from shrubs and undergrowth to younger trees, to large, commercially valuable timber depending on what is needed to "simultaneously meet long-term ecological, economic, and community objectives." 10-YEAR IMPLEMENTATION PLAN, supra note 51, at 6 (emphasis added).
(56) HEALTHY FORESTS INITIATIVE, supra note 1 (citing the need for "common-sense forest legislation").
(57) See Westerners Attack Enviros on Fire Suits; House Okays Money, PUB. LANDS NEWS, July 19, 2002, at 3 (quoting Colorado Congressman McInnis, the sponsor of the Healthy Forests Restoration Act: "The American people can expect a decades long cycle of destructive wildfires if," referring to environmental appeals of fire management projects, "this crusade against forest management continues.").
(58) The Biscuit Fire was one of the largest fires in Oregon history, burning nearly 500,000 acres in the Kalmiopsis Wilderness near the state's southern coastline. See BISCUIT FIRE RECOVERY 2003, at http://www.biscuitfire.com (last visited Nov. 14, 2004) (providing background on the 2002 Biscuit Fire).
(59) HEALTHY FORESTS INITIATIVE, supra note 1, at 1.
(60) Id. at 13-16. The Initiative described several instances in which federal agencies had documented an area's need for fuels treatment at great length and expense; subsequently, while administrative or legal appeals delayed treatment, the areas were consumed by wildfire. Id. at 15.
(61) Stark Ackerman, Observations on the Transformation of the Forest Service: The Effects of the National Environmental Policy Act on U.S. Forest Service Decision Making, 20 ENVTL. L. 703, 721 (1990) (observing that "forest plan decisions represent political decisions being made under the cloak of technical expertise") (capitalization omitted).
(62) See Michael Goodman, Comment, Forest Service Appeals Reform: Searching for Meaningful Review, 3 N.Y.U. ENVTL. L.J. 117, 154-55 (1994) (discussing the Forest Service's use of the public participation process in order to develop a record that favors timber interests).
(63) See OFFICE OF TECHNOLOGY ASSESSMENT, U.S. CONGRESS, REPORT NO. OTA-F-505, FOREST SERVICE PLANNING: ACCOMMODATING USES, PRODUCING OUTPUTS, AND SUSTAINING ECOSYSTEMS 7 (1992) (finding "most national forest managers still ... believ[e] public participation is primarily an exercise in gathering information" rather than an integral part of the decisionmaking process) [hereinafter OTA, FOREST SERVICE PLANNING], http://www.wws.princeton.edu/cgi-bin/byteserv.prl/~ota/disk1/1992/9216/ 9216.PDF.
(65) See Bradley C. Bobertz & Robert L. Fischman, Administrative Appeal Reform: The Case of the Forest Service, 64 U. COLO. L. REV. 371, 409-10 (1993) (noting that administrative review often provides "more sophisticated oversight by applying a more substantive standard of review" than the APA's "arbitrary and capricious" standard usually applied by courts to forest project decisions).
(66) See, e.g., 16 U.S.C. [section] 1604(d) (2000) (requiring public participation in Forest planning).
(67) HEALTHY FORESTS INITIATIVE, supra note 1, at 14.
(68) NFMA requires development of land and resource management plans (LRMPs) for each forest, which are binding on the Forest Service. 16 U.S.C. [section] 1604 (2000).
(69) Pub. L. No. 102-381, tit. III, [section] 322, 106 Stat. 1374, 1419 (1992).
(70) See Review of and Comment on National Forest Plans and Project Decisions, 57 Fed. Reg. 10,444, 10,445 (proposed Mar. 26, 1992) (to be codified at 36 C.F.R. pt. 217) (proposing to limit appeals strictly to the land planning process because the "onerous, confrontational, and costly" project appeals system was a "significant generator of paperwork"); see also 138 CONG. REC. S15,848 (dally ed. Sept. 30, 1992) (statement of Sen. Leahy) ("[W]e have now preserved an appeals process that gives the citizens of this country an opportunity to participate in the management of their National Forests.").
(71) Notice, Comment, and Appeal Procedures for National Forest System Projects and Activities, 58 Fed. Reg. 58,904 (Nov. 4, 1993) (formerly codified at 36 C.F.R. pt. 215).
(72) Notice, Comment, and Appeal Procedures for National Forest System Projects and Activities, 68 Fed. Reg. 33,582 (June 4, 2003) (to be codified at 36 C.F.R. pt. 215).
(73) 36 C.F.R. [section] 215.20(b) (2003).
(74) 68 Fed. Reg. at 33,594.
(76) 180 F. Supp. 2d 1141 (D. Mont. 2002).
(77) Id. at 1148.
(78) Id. at 1147. The Forest Service had authority to make an emergency determination, by which it could prevent a project from being stayed pending appeal, but it elected not to use it in Rey. Thus, if not unlawful, the new C.F.R. section 215.20(b) is unnecessary. That the Forest Service elected not to use this authority suggests it would rather avoid appeal altogether, even if it has authority to implement the project without delay. Emergency determination discretion, significantly expanded under the Initiative, is discussed infra notes 90-94 and accompanying text.
(79) Rey, 180 F. Supp. 2d at 1145, 1148.
(80) Id. at 1150.
(81) Id. at 1147.
(82) The regulations may also violate NFMA. See 16 U.S.C. [section] 1612(a) (requiring public notice and opportunity to comment on "standards, criteria, and guidelines applicable to Forest Service programs"). Furthermore, insulating decisions from public participation and scientific analysis makes them more susceptible to fickle political and budget concerns and less responsive to their public charter. See OTA, FOREST SERVICE PLANNING, supra note 63, at 97 (noting many appeals are described as "harassment" or nuisances). While the Healthy Forests Initiative purports to address forest health and wildfire danger, the new C.F.R. section 215.20(b) applies beyond fuels reduction projects. The Forest Service could invoke this provision to shield from appeal any project within the purview of the regulations, including timber sales. Another concern, which goes to the heart of the Initiative, is that while this provision may reduce administrative appeals, it might make litigation a matter of first resort for many parties, tying up federal courts with complex appeals of forestry decisions and delaying important projects. Lastly, because the Healthy Forests Restoration Act now exempts fuels reduction projects from appeal under the ARA, the agency is most likely to use the new regulations only to expedite timber sales and salvage projects, not fuels reduction. See infra notes 212-13 and accompanying text (discussing exemption for fuels reduction projects from public appeal provision of ARA).
(83) Pub. L. No. 102-381, tit. III, [section] 322, 106 Stat. 1374, 1419 (1992).
(84) 36 C.F.R. [section] 215.13(a) (2003). "Substantive comments,"--a term of art--are "[c]omments that are within the scope of proposed action, are specific to the proposed action, have a direct relationship to the proposed action and include the supporting reasons for the Responsible Official to consider." Id. [section] 215.2.
(85) Notice, Comment, and Appeal Procedures for National Forest System Projects and Activities, 68 Fed. Reg. 33,582, 33,590 (June 4, 2003) (to be codified at 36 C.F.R. pt. 215). The Forest Service has complained of "disincentives for predecisional dialogue [between the public and the Forest Service] because citizens have opportunities for administrative appeals and judicial review." THE PROCESS PREDICAMENT, supra note 11, at 13. The Initiative responded directly to this complaint by making appeal eligibility contingent on "predecisional dialog." 68 Fed. Reg. at 33,590. Note further that the use of a NEPA categorical exclusion requires the agency only to provide public notice of the categorically excluded project, but relieves the agency of taking public comment and appeals on it. 36 C.F.R. [subsection] 215.4, 215.12 (2003).
(86) See36 C.F.R. [section] 215.11(a)(1)-(2) (2002) (superseded) (reflecting the language of the ARA, and giving appeal eligibility to any person who timely submitted written comment regarding a DEIS, or commented or otherwise expressed interest in a particular proposed action).
(87) For example, an interested and otherwise eligible landowner would be excluded from appeal (and subsequent judicial review) if the Responsible Official were to conclude that the appeal is insufficiently specific in: 1) its argument as to how the appellant believes the decision violates either statute or regulation, 36 C.F.R. [section] 215.14(b)(9) (2003); 2) its claim as to how the agency failed to consider appellants substantive comments, id. [section] 215.14(b)(6); or 3) its description of exactly how the appellant would change the project and appellant's rationale for that change, id. [section] 215.14(b)(8). Considerable forestry and legal expertise would seem to be necessary to satisfy these demands, likely much beyond that of the average citizen.
(88) Id. [section] 215.14. Appellants may need a lawyer to draft appeals satisfying the new content standards, thereby further limiting the number of appeals.
(89) See 36 C.F.R. [section] 215.11(b) (2002) (repealed 2003). The Forest Service remarked in removing this provision that "the [Agriculture] Department does not believe the provision fulfills the intent of the ARA." 68 Fed. Reg. at 33,590. This statement seems inconsistent with the intent of the ARA as a guarantee of public participation both before and after agency decisions, as construed by the court in Rey, 180 F. Supp. 2d 1141, 1147 (D. Mont. 2002). See also ,supra notes 76-81 and accompanying text.
(90) Under the old regulations, an emergency was defined as an unexpected event, or a serious occurrence requiring urgent action, examples of which included vegetation loss threatening mudslide or landslide, threat of loss to water quality or fish or wildlife habitat, hazardous or unsafe conditions, and sudden outbreaks of forest pests and diseases. 36 C.F.R. [section] 215.10(d) (2002) (repealed 2003). The new regulations retain these examples, and add an economic dimension. 36 C.F.R. [section] 215.2 (2003). See infra note 93 and accompanying text (discussing this economic dimension).
(91) 36 C.F.R. [section] 215.10(c)(2) (2003).
(92) Id. [section] 215.9(b).
(93) Id. [section] 215.2. Thus, an economic emergency might exist after a forest experiences a fire and its timber is left unharvested. Similarly, the loss of economic value of timber in forests damaged by insect infestation or blight could also be an emergency. Such a definition seems squarely at odds with studies indicating that salvage operations may be harmful to forest health. See ROBERT L. BESCHTA ET AL., OREGON STATE UNIVERSITY, WILDFIRE AND SALVAGE LOGGING RECOMMENDATIONS FOR ECOLOGICALLY SOUND POST-FIRE SALVAGE MANAGEMENT AND OTHER POSTFIRE TREATMENTS ON FEDERAL LANDS IN THE WEST 6-7 (finding that salvage operations may accelerate erosion and soil compaction). It also casts doubt on the Initiative's own proclamation that "[u]nder normal conditions of forest and rangeland health, fires play a vital role in removing excess fuels and maintaining normal plant composition and density." HEALTHY FORESTS INITIATIVE, supra note 1, at 4.
(94) See Roy, 180 F. Supp. 2d at 1148-49, discussed supra notes 76-82 and accompanying text. As has been noted previously, forest project decisions are notoriously political. See supra note 61 and accompanying text (discussing the scientific "cloak" of politically driven decisions). Clearly, giving an economic dimension to "emergency" project decisions can only increase the susceptibility of such decisions to both national political and local business influences, and decrease their overall pulic responsiveness.
(95) Special Rules Applicable to Public Land Hearings and Appeals, 68 Fed. Reg. 33,794, 33,794 (June 5, 2003) (to be codified at 43 C.F.R. pts. 4, 4100, 5000).
(96) 43 C.F.R. [section] 4.410(b) (2003). It is important to note that, like the changes to the Forest Service appeals process, these changes apply to all public land appeals within the Department of the Interior, not simply those related to fire activities.
(97) 68 Fed. Reg. at 33,794. The Department of the Interior comments that these changes simply codified existing precedents in Interior Board of Land Appeals decisions without changing who may appeal. Id.
(98) 43 C.F.R. [section] 4190.1(a) (2003). BLM defines "wildfire management" to include mechanical fuels reduction, prescribed fire, and "biological thinning," referring to removal of grasses by grazing. Id. [section] 4190.1(a)(1). Many studies, some by the federal government, show that removal of surface grasses aid growth of ladder fuels, which allow surface fires to reach the more combustible crowns of large trees, one of the hallmarks of severe wildfire. See, e.g., Protecting People and Sustaining Resources in Fire-Adapted Ecosystems--A Cohesive Strategy, 65 Fed. Reg. 67,480, 67,485 (Nov. 9, 2000) (describing process whereby livestock grazing leads to the growth of dense, combustible stands of trees called "dog-hair" thickets).
(99) 43 C.F.R. [section] 4.21(a)(1) (2003). That BLM needed this new provision is doubtful, because the Office of Hearings and Appeals (OHA) and the Interior Board of Land Appeals (IBLA), the Interior Department's adjudicative bodies, already had authority to make fire-related management decisions immediately effective upon a finding that public necessity requires it. Id. [section] 4.21(a)(2). Thus, the new regulations simply relieve BLM from persuading OHA or IBLA that public necessity requires it. BLM justified this on the grounds that it "eliminates a bureaucratic step," that it "views its ability to carry out fire management practices as a matter of great urgency," and that its "fire management practices ... [are] scientifically justified," without offering scientific justification. 68 Fed. Reg. at 33,796.
(100) 68 Fed. Reg. at 33,798. So long as its "primary objective ... is fuels hazard reduction," BLM may put a thinning project into immediate effect, without size limitations on the "thinned" trees. Id. This refusal to impose size limitations on thinned trees rejects near-unanimity of scientific opinion that large trees provide valuable species habitat and do not add to fire danger, while removing large trees eliminates species habitat and allows buildup of low brushy fuel that help normal ground fires become devastating crown fires. See PHILIP N. OMI & ERIK J. MARTINSON, WESTERN FOREST FIRE RESEARCH CENTER, EFFECT OF FUELS TREATMENT ON WILDFIRE SEVERITY 3 (2002) (providing the most comprehensive and controlled study of prescribed burning and mechanical thinning as fire prevention and control methods), available at http://www.cnr.colostate.edu/frws/research/westfire/FinalReport.pdf.
(101) 68 Fed. Reg. at 33,798. It is undisputed that fuels reduction in the wildland-urban interface best reduces life and property loss. See THE WILDERNESS SOCIETY, SCIENCE, HOMEOWNERS, AND THE MEDIA AGREE: WILDFIRE EFFORTS MUST FOCUS ON PROTECTING HOMES AND COMMUNITIES, at http://wilderness.org/Library/Documents/ExpertsAgree.cfm (last visited Nov. 14, 2004) (noting that the Forest Service, Western Governors' Association, and the Federal Emergency Management Agency have each published reports indicating that fuels reduction near residences have the greatest impact ill reducing fire danger).
(102) See supra notes 78, 83-89 and accompanying text (discussing Forest service regulations).
(103) 40 C.F.R. [section] 1508.4 (2003).
(104) See 42 U.S.C. [section] 4332(E) (2000) (requiring agencies to "study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources").
(105) See id. [section] 4332(C) (requiring a detailed statement, the now familiar environmental impact statement, describing the environmental consequences, alternatives analysis, and irretrievable commitments of resources for all federal actions "significantly affecting the quality of the human environment").
(106) See id. [section] 4332(G) (requiring agencies to "make available to States, counties, municipalities, institutions, and individuals, advice and information useful in restoring, maintaining, and enhancing the quality of the environment").
(107) Agencies may implement new CEs by developing "[s]pecific criteria for and identification of" such categories of action not significantly affecting the human environment. 40 C.F.R. [section] 1507.3(b)(2) (2003).
(108) National Environmental Policy Act Documentation Needed for Fire Management Activities; Categorical Exclusions, 68 Fed. Reg. 33,814, 33814 (June 5, 2003). These CEs are available to both the Forest Service and BLM.
(109) National Environmental Policy Act Documentation Needed for Limited Timber Harvest, 68 Fed. Reg. 44,598, 44,598 (July 29, 2003). These CEs are available only to the Forest Service.
(110) National Environmental Policy Act Documentation Needed for Limited Timber Harvest, 68 Fed. Reg. 1026, 1028 (Jan. 8, 2003) (noting that "some small fuel reduction projects may fit the proposed categorical exclusions" for timber harvest).
(111) The Forest Service Handbook describes the CEs for fife-related projects and limited timber harvest as "Categories of Actions for Which a Project or Case File and Decision Memo Are Required." U.S. FOREST SERV., FOREST SERVICE HANDBOOK [section] 1909.15, ch. 31.2 (2003). The decision memo consists of, among other things, a description of the categorically excluded project, the reasons for invoking the CE, a finding that no extraordinary circumstances exist, and a description of the public involvement in the particular project. Id. [section] 1909.15, ch. 32.3. This is the extent of the NEPA analysis required.
(112) The Forest Service and Interior Department devised the size limitations for the new CEs by analyzing the size-distribution of previous fuels reduction projects using prescribed fire and mechanical methods. They then chose areas representing the 95th percentile of the size of each type of project. That is, the new CEs would have applied to approximately 95% of all mechanical fuels reduction and prescribed fire projects. See DAVE SIRE & WILLIE TAYLOR, EFFECTS OF HAZARDOUS FUELS REDUCTION AND REHABILITATION ACTIVITIES 13-14 (2003) (indicating that 95% of project acreages for mechanical hazardous fuels reduction activities are approximately 1,000 acres or less), available st http://www.fs.fed.us/emc/hfi/rationale.pdf.
(113) U.S. FOREST SERV., FOREST SERVICE HANDBOOK [section] 1909.15, ch. 31.2(10)(e) (2003).
(114) See HEALTHY FORESTS INITIATIVE, supra note 1, at 13 (discussing "[t]imber sales to achieve fuels reduction and forest health objectives").
(115) See HENRY CAREY & MARTHA SCHUMANN, NATIONAL COMMUNITY FORESTRY CENTER, MODIFYING WILDFIRE BEHAVIOR--THE EFFECTIVENESS OF FUEL TREATMENTS: THE STATUS OF OUR KNOWLEDGE 11-12 (2003) (finding increased fire severity in areas of slash remaining after logging); see also OMI & MARTINSON, supra note 100, at 22 (finding that the large trees most likely to be cut in commercial harvests are also those most resistant to fire).
(116) U.S. FOREST SERV., FOREST SERVICE HANDBOOK [section] 1909.15, ch. 31.2(11) (2003). Yet again, the agencies retained substantial discretion by providing little indication of what "management approved" conditions are in applying this CE.
(117) Compare BESCHTA, supra note 93, at 6-7 (blaming salvage logging for increased soil compaction and erosion, and suggesting that post-fire management activities such as reseeding do not facilitate faster-than-natural rates of recovery), with National Environmental Policy Act Documentation Needed for Limited Timber Harvest, 68 Fed. Reg. 44,598, 44,603 (July 29, 2003) (asserting the "agency has an extensive array of guidelines and procedures to prevent and mitigate negative environmental impacts" from the operations).
(118) See, e.g., U.S. FOREST SERV., FOREST SERVICE HANDBOOK [section] 1909.15, ch. 31.2(5), (6) (2003) (describing CEs 5 and 6, which apply to mechanical thinning and prescribed burning for rehabilitation activities and "[t]imber stand and/or wildlife habitat improvement activities").
(119) SIRE & TAYLOR, supra note 112, at 5. Further supporting the point that the new CEs are unneeded authority, neither CE 5 nor 6 had any acreage limitations, U.S. FOREST SERV., FOREST SERVICE HANDBOOK [section] 1909.15, ch. 31.2(5), (6) (2003), and only 1% of projects not qualifying for categorical exclusion required an EIS in any event. SIRE & TAYLOR, supra note 112, at 5.
(120) 40 C.F.R. [section] 1508.4 (2003).
(121) U.S. FOREST SERV., FOREST SERVICE HANDBOOK [section] 1909.15, ch. 31.2(12) (2003) (CE 12). It may not be used for even-aged harvest (generally clearcutting), but may be used for removal of individual trees and commercial thinning. The Forest Service had proposed a size limit of 50 acres; responding to public comment that it was too conservative, the agency increased the limit to 70 acres. Id.
(122) Id. [section] 1909.15, ch. 31.2(13) (2003) (CE 13).
(123) Id. [section] 1909.15, ch. 31.2(14) (CE 14). This CE also allows removal of adjacent live "uninfested/infected trees as determined necessary." Id. Again, the "as determined necessary" standard does little to constrain the Forest Service's discretion.
(124) 73 F. Supp. 2d 962 (S.D. Ill. 1999), aff'd, 230 F.3d 947 (7th Cir. 2000).
(125) U.S. FOREST SERV., FOREST SERVICE HANDBOOK [section] 1909.15, ch. 31.2(4) (2003).
(126) 73 F. Supp. 2d at 980; see also National Environmental Policy Act; Revised Policy and Procedures, 57 Fed. Reg. 43,180 (Sept. 18, 1992) (establishing CE 4). Even the now-invalidated CE 4 had required that projects authorized pursuant to it be subject to notice, comment, and appeal. U.S. FOREST SERV., FOREST SERVICE HANDBOOK [section] 1909.15, ch. 31.2(4) (2003). Claiming that timber sales under CE 4 were "not as controversial as originally contemplated," the Forest Service decided that projects under the new timber harvest CEs would not be subject to notice, comment, or appeal. National Environmental Policy Act Documentation Needed for Limited Timber Harvest, 68 Fed. Reg. 1026, 1028 (Jan. 8, 2003). To the contrary, the Heartwood decision suggests that considerable controversy attended the use of CE 4.
(127) National Environmental Policy Act; Revised Policy and Procedures, 54 Fed. Reg. 9073, 9074 (Mar. 3, 1989).
(128) Heartwood, 73 F. Supp. 2d at 980.
(129) See, e.g., Final CEs for Timber Harvest, 68 Fed Reg. 44598, 44,600 (July 29, 2003) ("The loss of [CE 4] has resulted in small timber harvests, without the potential for significant impacts, requiring preparation of at least an environmental assessment in order to proceed.").
(130) 68 Fed. Reg. 1026, 1027.
(131) CE 4 measured the scope of the timber harvest by timber volume. The new CEs use acreage, which the Forest Service "now believes ... is a more useful measure of project magnitude than timber volume," but which also may obscure their magnitude. Id. A single acre of Douglas fir would contain approximately 20,000 board feet if well-stocked, and 5,000 if poorly stocked. FORESTRY EXTENSION, UTAH STATE UNIV., FORESTRY MANAGEMENT, TIMBER VOLUME MEASUREMENT, at http://extension.usu.edu/forestry/Management/Timber_Measure Volume.htm (last visited Nov. 14, 2004). Thus, a well-stocked 70-acre stand--now categorically excluded from environmental analysis by the Initiative--would contain approximately 1.4 million board feet. CE 12 does not permit clear-cutting, so it would not authorize harvesting this whole amount. Nonetheless, harvesting 250,000 board feet, the amount invalidated in Heartwood 73 F. Supp. 2d at 977, would be just 18% of the stand. Similarly, a salvage harvest of one million board feet, which Heartwood also invalidated, id., could be obtained from CE 13's 250 acre limit by salvaging only 4,000 board feet per acre. Thus the new timber harvest CEs are vulnerable to invalidation, since they may in fact authorize harvest levels at least on par with CE 4.
(132) 40 C.F.R. [section] 1508.4 (2003).
(133) U.S. FOREST SERV., FOREST SERVICE HANDBOOK [section] 1909.15, ch. 30.3(2) (1992).
(134) U.S. FOREST SERV., FOREST SERVICE HANDBOOK [section] 1909.15, ch. 30.3(2) (2004).
(135) Id. Although the Forest Service initially proposed this "clarification" as interim guidance, and continues to entitle the proposal as interim guidance in its Federal Register notices and in the Forest Service Handbook, it subsequently stated that the change was a permanent revision. Clarification of Extraordinary Circumstances for Categories of Actions Excluded From Documentation in an Environmental Assessment or an Environmental Impact Statement, 67 Fed. Reg. 54,622, 54,627 (Aug. 23, 2002).
(136) Under the old formulation of extraordinary circumstances, courts split over whether the simple presence of an extraordinary circumstance was sufficient to preclude the use of a categorical exclusion, which was essentially a question of whether the Forest Service was bound by the Handbook. The timber-rich 9th Circuit concluded that the agency was not bound. Compare Southwest Ctr. for Biological Diversity v. United States Forest Serv., 100 F.3d 1443, 1450 (9th Cir. 1996) (upholding Forest Service's use of a CE despite the presence of extraordinary circumstances, on the ground that the Forest Service Handbook was nonbinding internal guidance), with Rhodes v. Johnson, 153 F.3d 785, 790 (7th Cir. 1998) (concluding that the Forest Service Handbook was binding, and therefore that "the presence of an extraordinary circumstance requires the Forest Service to prepare an environmental assessment").
(137) Joint Counterpart Endangered Species Act Section 7 Consultation Regulations, 68 Fed. Reg. 68,254 (Dec. 8, 2003) (to be codified at 50 C.F.R. pt. 402). "Joint counterpart" regulations, developed jointly between the action agency and both FWS and NOAA Fisheries, may supplement or supersede any relevant consultation regulations. 50 C.F.R. [section] 402.04 (2003).
(138) 16 U.S.C. [section] 1536(a)(2) (2000). The Initiative has also issued internal guidance to FWS and NOAA Fisheries in formal and informal consultation with action agencies regarding fuels reduction projects:
[T]he Services should evaluate and balance the long term benefits of fuels treatment projects, including the benefits of restoring natural fire regimes and native vegetation, as well as the long term risks of catastrophic wildfire, against any short or long term adverse effects. The section 7 effects analysis for fuels treatment projects should reflect this balance. Projects with expected net benefits that significantly outweigh short term adverse effects should be expedited in the interest of the conservation or restoration of native ecosystems and ... to ensure that the projects are completed in a timely manner.
Memorandum from Steve Williams, U.S. Fish & Wildlife Service, & William T. Hogarth, National Oceanographic and Atmospheric Administration Fisheries, Regarding Evaluating the Net Benefit of Hazardous Fuels Treatment Projects 1-3 (Dec. 10, 2002), http://www.doi.gov/hfi/HFI/home/admin/ESA/ESA%20Net%20Benefit%20Guidance% 2010Dec02.p df. Thus, the Initiative has also changed the application of the ESA to hazardous fuels projects where there is a finding of likely significant adverse effects.
(139) 50 C.F.R. [section] 402.13(a) (2004).
(140) Id. [section] 402.31. BLM, the National Park Service, the Bureau of Indian Affairs, and the Forest Service are the management agencies affected by the new regulations. 68 Fed. Reg. at 68,254. This alternative process is limited to projects implementing the National Fire Plan, which comprises all planning and direction subsequent to WILDFIRE REPORT TO THE PRESIDENT, supra note 48. Therefore, this would include projects pursuant to the Healthy Forests Initiative, including prescribed fires, mechanical fuels reduction projects, and rehabilitation activities. 68 Fed. Reg. at 68,255.
(141) 50 C.F.R. [section] 402.33 (2004).
(142) Id. [section] 402.33(a)(3).
(143) Id. [section] 402.34.
(144) Id.. [section] 402.34(c).
(145) BUREAU OF LAND MGMT., NATIONAL MARINE FISHERIES SERV., & U.S. FISH & WILDLIFE SERV., ALTERNATIVE CONSULTATION AGREEMENT TO IMPLEMENT SECTION 7 COUNTERPART REGULATIONS (2004), http://endangered.fws.gov/consultations/BLM_ACA.pdf; USDA FOREST SERV., NATIONAL MARINE FISHERIES SERV., & U.S. FISH & WILDLIFE SERV., ALTERNATIVE CONSULTATION AGREEMENT TO IMPLEMENT SECTION 7 COUNTERPART REGULATIONS (2004) [hereinafter FOREST SERVICE ACA], http://endangered.fws.gov/consultations/ACA.pdf.
(146) 16 U.S.C. [section] 1536(a)(2) (2000).
(147) FOREST SERVICE ACA, supra note 145, at 3.
(148) The action agencies dismissed this concern, stating that their professionally and scientifically trained staffs were capable of making proper determinations. Joint Counterpart Endangered Species Act Section 7 Consultation Regulations, 68 Fed. Reg. 68,254, 68,260 (Dec. 8, 2003) (to be codified at 50 C.F.R. pt. 402). This response, of course, does nothing to assuage the suspicion that, for political reasons, the agencies will be less than completely receptive to the professional determinations of their well-trained staffs.
(150) The agencies have also proposed new joint counterpart ESA consultation regulations for land management actions under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. [subsection] 136-136y (2000). Joint Counterpart Endangered Species Act Section 7 Consultation Regulations, 69 Fed. Reg. 4465 (proposed Jan. 30, 2004) (to be codified at 50 C.F.R. pt. 402). These regulations would offer the Department of Agriculture, Environmental Protection Agency, and the consultation agencies two new consultation alternatives to informal consultation for projects regulated by FIFRA. Id at 4465-66.
(151) For more detailed discussion of the consultation requirement, see John W. Steiger, The Consultation Provision of Section 7(a)(2) of the Endangered Species Act and Its Application to Delegable Federal Programs, 21 ECOLOGY L.Q. 243, 256-60 (1994) (also noting that the consultation agencies are less susceptible to "capture" by prodevelopment interests than are action agencies).
(152) HEALTHY FOREST INITIATIVE, supra note 1, at 21. The Initiative repeatedly uses the word "promise" to describe the Plan's timber projections: "Although the Plan has successfully protected old growth trees, it has failed to deliver on its promise of a sustainable forest economy." Id The Plan, however, contained merely timber projections. The "estimated annual probable sale quantity" under the Plan was 1.1 billion board feet per year. NORTHWEST FOREST PLAN ROD, supra note 23, at 24. The Initiative stated that because of procedural and judicial delays, the agencies had offered less than 40% of this amount Plan. Id In fact, the "judicial delays" were injunctions imposed after the Forest Service and BLM offered timber sales without complying with the Plan. See infra note 153 (citing cases).
(153) See, e.g., Seattle Audubon Soc'y v. Evans, 771 F. Supp. 1081, 1096 (W.D. Wash. 1991) (holding that the Forest Service violated NFMA by falling to meet regulatory viability requirements for northern spotted owl), aff'd, 952 F.2d 297 (9th Cir. 1991); Portland Audubon Soc'y v. Lujan, 795 F. Supp. 1489, 1502 (D. Or. 1992) (holding that BLM violated NEPA by falling to supplement an EIS based on stale information), aff'd, 998 F.2d 705 (9th Cir. 1993). For helpful background information on the Plan, see Lauren M. Rule, Note, Enforcing Ecosystem Management Under the Northwest Forest Plan: The Judicial Role, 12 FORDHAM ENVTL. L.J. 211 (2000) (examining the effects of two cases on land management practices in the Pacific Northwest).
(154) NORTHWEST FOREST PLAN ROD, supra note 23, at 40-48, 50-51.
(155) Id. at 8.
(156) Among these mitigation measures were the "aquatic conservation strategy," a series of measures designed to protect watersheds and riparian corridors, and the "survey and manage" requirements, which required the agency to survey all forest areas for the presence of rare and relatively immobile forest species, and assess the degree to which proposed timber sales may harm these species. Id at 9, 11.
(157) See HEALTHY FORESTS INITIATIVE, supra note 1, at 21 (noting that from a maximum of 889 million board feet offered for sale in 1997, volume fell to just 308 million in 2001). The agencies reduced the Plan's probable sale quantity to 811 million board feet in 1996, and again to 760 million board feet in 2000. U.S. FOREST SERV. & BUREAU OF LAND MGMT., 1 FINAL SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT FOR AMENDMENT TO THE SURVEY & MANAGE, PROTECTION BUFFER, AND OTHER MITIGATION MEASURES STANDARDS AND GUIDELINES, at iii (2000), available at www.or.blm.gov/nwfpnepa/fseis-2000/fseis-vol-1.pdf.
(158) In 1999, two courts held the survey and manage measures and aquatic conservation strategy were judicially enforceable elements of the plan. See Oregon Natural Res. Council Action v. United States Forest Serv., 59 F. Supp. 2d 1085, 1094, (W.D. Wash. 1999) (enjoining the Forest Service and BLM from proceeding with timber sales until they complied with the survey and manage requirements); Pacific Coast Fed'n of Fisherman's Ass'n v. National Marine Fisheries Serv., 71 F. Supp. 2d 1063, 1069 (W.D. Wash. 1999) (holding that NMFS violated the Plan's aquatic conservation strategy by analyzing effects of timber sales only on the watershed level, rather than on a site-specific level, because this had the effect of ignoring cumulative impacts), aff'd in part, vacated in part; 253 F.3d 1137 (9th Cir. 2001), amended and superseded by 265 F.3d 1028 (9th Cir. 2001).
(159) See JACK WARD THOMAS, SUSTAINABILITY OF THE NORTHWEST FOREST PLAN: DYNAMIC VS. STATIC MANAGEMENT 5 (2003), at http://www.fs.fed.us/r5/nwfp/plans/sus.shtml (last visited Nov. 14, 2004) (quoting a former Forest Service Chief: "The [Plan] was then, simply, not faithfully followed.').
(160) HEALTHY FORESTS INITIATIVE, supra note 1, at 21.
(161) The colorful story of these "friendly" lawsuits and settlements is beyond the scope of this paper, but is discussed in Michael C. Blumm, The Bush Administration's Sweetheart Settlement Policjz" A Trojan Horse Strategy for Advancing Commodity Production on Public Lands, 35 Envtl. L. Rep. (Envtl. L. Inst.) 10,397 (2004). The story includes a joint motion by the timber industry and BLM to reopen American Forest Resource Council v. Shea 172 F. Supp. 2d 24, 34 (D.D.C. 2001), in which BLM had won a final judgment, to allow settlement. Blumm, supra, at 10,414. The story also discusses a Freedom of Information Act lawsuit by Earthjustice uncovering confidential communications between the timber industry and the Justice Department, in winch the industry suggested the agencies settle the suits, agree to the industry's terms, and undertake the widespread regulatory revision winch has subsequently occurred. Id. at 10,412. One of these suggested revisions was the streamlining of ESA section 7 consultation requirements. Id. The timber industry suggested this as a means of expediting timber sales, Id., yet when the agencies proceeded to adopt a streamlined section 7 process in December 2003, they justified it not as promoting increased timber production, as the industry had done, but as reducing the risk of "catastrophic wildland fire." Joint Counterpart Endangered Species Act Section 7 Consultation Regulations, 68 Fed. Reg. 68,254, 68,255 (Dec. 8, 2003) (to be codified at 50 C.F.R. pt. 402).
(162) To Remove or Modify the Survey and Manage Mitigation Measure Standards and Guidelines, 69 Fed. Reg. 3316 (Jan. 23, 2004) (noting that because the Secretaries of Agriculture and the Interior approved the rescission, it was not subject to administrative appeal).
(163) Notice of Availability (NOA) of Final Supplemental Environmental Impact Statement (FSEIS) for the Clarification of Language in the 1994 Record of Decision for the Northwest Forest Plan, 68 Fed. Reg. 62,050 (Oct. 31, 2003) (describing the proposed change in the wording of the aquatic conservation strategy to require the agencies to analyze projects only at the watershed level scale, greatly easing compliance).
(164) See Rule, supra note 153, at 222-27 (discussing the Plan's "holistic" ecosystem management perspective).
(165) Seattle Audubon Soc'y v. Lyons, 871 F. Supp. 1291, 1322 (W.D. Wash. 1994), aff'd, 80 F.3d 1401 (9th Cir. 1996) (upholding the legality of the Plan, but noting that "[i]f the plan as implemented is to remain lawful[,] the monitoring, watershed analysis, and mitigating steps called for by the ROD will have to be faithfully carried out.").
(166) Healthy Forests Restoration Act of 2003, Pub. L. No. 108-148, 117 Stat. 188, 16 U.S.C.A. [subsection] 6501-6591 (West Supp. 2004).
(167) Several failed bills predate the Healthy Forests Initiative. See, e.g., H.R. 5098, 106th Cong. (2000) (addressing fire danger in Colorado forests).
(168) Title I of the Healthy Forests Restoration Act may be found at 16 U.S.C.A. [subsection] 6511-6518 (West Supp. 2004).
(169) H.R. 5319, 107th Cong. (2002); H.R. 5376, 107th Cong. (2002).
(170) See, e.g., H.R. 5319 [section] 2(a)(3) ("The impending specter of large-scale catastrophic wildfire on these Federal lands presents a clear and present threat to the health and safety of scores of communities, [and] millions of Americans.").
(171) Each repealed the Appeals Reform Act and substituted streamlined appeals processes. H.R. 5319 [subsection] 201, 207; H.R. 5376 [subsection] 1(e)(1), (3). House Bill 5319 would have reduced NEPA analysis to either one or zero alternatives. H.R. 5319. Both had judicial review provisions, and House Bill 5319 imposed an arduous 15-day statute of limitations for appealing fuels projects, and requiring deference to the agencies when considering injunctive relief. H.R. 5319 [section] 104; H.R. 5376 [subsection] 1(f), 4.
(172) H.R. 1904, 108th Cong. (2003). Reflecting the partisanship of the early debates about H.R. 1904, its sponsor remarked, "Extreme environmentalists have successfully exploited public opinion and moved management from the field to Washington, D.C. We're trying to move it back a little the other way." House Committee Approves Fire Treatment Bill, Again, PUB. LANDS NEWS, May 2, 2003, at 1-2.
(173) 149 CONG. REC. H4324 (dally ed. May 20, 2003) (passing by a 256-170 vote).
(174) Damon Chappie & Emily Pierce, Senate Disclosure Faces Scrutiny; Group Urges Chamber to End Paper Campaign Finance Reports, ROLL CALL, Oct. 28, 2003, 2003 WL 7692445.
(175) Helen Dewar, Senators Reach Pact On Forest Thinning. WASH. POST, Oct. 30, 2003, at A06, available at 2003 WL 62227228.
(176) Richard Simon, Southern California Fires; Fires Spur Bush's Long-Stalled 'Healthy Forests' Legislation, L.A. TIMES, Nov. 2, 2003, at A29, available at 2003 WL 2445625; see also Dewar, supra note 175, at A06 (noting that the consent of Senate Republicans not to try to limit amendments to the bill cleared the way for the bill to reach the Senate floor).
(177) 149 CONG. REC. $15,376-79 (daily ed. Nov. 21, 2003) (statement of Sen. Wyden, one of the brokers of the compromise).
(178) 16 U.S.C.A. [section] 6501(1) (West Supp. 2004). The collaborative process referred to is the process detailed in the 10-Year Implementation Plan. 10-YEAR IMPLEMENTATION PLAN supra note 51, at 8. Emphasis on local collaboration was a major goal of the Healthy Forests Initiative, bringing control of forest management back to the rural communities near federal forest lands.
(179) 16 U.S.C.A. [section] 6502(a) (West Supp. 2004) ("fuels projects" or "projects").
(180) Id. [section] 6513(d). The Act directs merely that, in providing financial assistance for fuels projects on nonfederal land, the Secretary give priority to communities with developed wildfire protection plans and that the Secretary must consider recommendations in those plans. Id [section] 6513(d)(2). However, other titles of the Act more clearly provide financial assistance to private forest landowners, in one title for improving watershed health, in another for creating a Healthy Forests Reserve Program. For example, Title III of the HFRA amends the Cooperative Forestry Assistance Act of 1978, id [section] 2103a, and authorizes financial assistance to encourage private landowners to manage their lands to protect watershed health. Title V of the HFRA, id. [subsection] 6571-6578, creates the Healthy Forests Reserve Program, by which the federal government provides financial and technical assistance to forest landowners willing to manage their lands primarily to promote recovery of threatened and endangered species, improve biodiversity, and enhance carbon sequestration.
(181) Id [section] 6512(a)-(d). Because fuels reduction projects must be consistent with LRMPs, implementation of a project on Forest Service lands would ordinarily trigger the protection of the Appeals Reform Act (ARA). However, the HFRA makes the ARA inapplicable to fuels reduction projects, voiding the ARA's guarantees of notice, comment, and administrative appeal. Id. [section] 6515(a)(1).
(182) Id [section] 6512(c). Estimates of federal land acreage at high risk of wildfire vary, but in proposing the Healthy Forests Initiative, President Bush submitted that at least 190 million acres (the entire National Forest System land area) were at risk. HEALTHY FORESTS INITIATIVE, supra note 1, at 1. Thus, even at its inception, the Act authorized treatment of only 10.5% of this area, suggesting Congress wished to oversee the agencies' use of their significant new discretion. At the federal government's 2004 rate of fuels treatment--3.7 million acres per year--the 20 million acre treatment limitation in the HFRA will require reauthorization or modification of the Act in about five years. FACT SHEET, supra note 6, at 3.
(183) 16 U.S.C.A. [section] 6513(a),(b). "Community wildfire protection plans," continuing on the theme of local involvement, are collaborative agreements between federal, state, and local agencies, which identify and prioritize fire-prone lands and structures. Id. [section] 6511(3). Because the HFRA authorizes appropriations of up to $760 million annually for fuels reduction projects, id. [section] 6518, which may include lucrative thinning or timber contracts, fire-prone communities serve themselves well by developing these protection plans to access the funds. Notably, the Act exempts federal involvement in planning for community wildfire protection plans from both NEPA and the Federal Advisory Committee Act (FACA). Id. [section] 6513(b)(c). FACA requires public notice of the date, place, and subject matter of meetings which advise agency action, that the meetings be open to the public, and that the membership of the meeting be fairly balanced in viewpoint. 5 U.S.C. app. 2 [subsection] 9-12 (2000). Presumably, the exemption from FACA is designed to simplify the required federal, state, and local collaboration. Yet the very purpose of FACA is to ensure that agency planning be open and accessible to the public, a goal the HFRA purports to embrace, so the exemption seems unnecessary. Again, it will be within the discretion of the agency to conduct HFRA planning in whatever manner it finds accessible, balanced, and responsible.
(184) 16 U.S.C.A. [section] 6513(d)(1)(A) (West Supp. 2004).
(185) Id. [section] 6513(d)(1)(B). Initial versions of House Bill 1904, as reported in both the House and Senate, required no funding priority for the WUI, despite Senate testimony and calls from Senator Leahy for specific funding requirements. S. REP. No. 108-121, at 20, 27 (2003).
(186) Wildland-urban interface areas make up 11.4 million acres in the United States, 85% of which is nonfederal land. Thus, the Act contemplates considerable financial expenditures in treating nonfederal lands. Over half of all WUI acreage is in southeastern states, while only a third is in western states. The prioritization provisions could thus allow heavy treatment of communities in southeastern WUIs, which are at relatively minor actual risk of damage from fire, while neglecting to treat vulnerable western WUIs in favor of extensive treatment of western forest lands, where valuable timber can be harvested ancillary to, or under the guise of, fuels reduction protects. See APLET & WILMER, supra note 40, at 14, 18-19 (using a U.S. Geological Survey database to determine WUI acreages noting that the information issued by the Forest Service regarding WUI acreage was unreliable, and suggesting that this unreliability was a product of some states exaggerating the exposure of their communities to wildfire in an effort to obtain federal funding).
(187) 16 U.S.C.A. [section] 6518 (West Supp. 2004). Note however, that hazardous fuels reduction has not been funded to the levels authorized by the HFRA, with FY 2004 appropriations of only $417 million, well below the $760 million limit. U.S. DEP'T OF AGRICULTURE & U.S. DEP'T OF THE INTERIOR, FACT SHEET: THE HEALTHY FORESTS INITIATIVE (2003), http://www.fs.fed.us/projects/hfi/2003/august/documents/ hfi-fact-sheet.pdf.
(188) See GAO, A COHESIVE STRATEGY, supra note 46, at 41-42 (discussing the agency's lack of a strategy to accomplish fuels reduction goals). GAO noted two funding problems. First, because the Forest Service has been increasing its reliance on timber production to fund fire prevention programs, it may "treat" forests by harvesting larger, more commercially valuable trees, which are generally at less risk of catastrophic fire than areas with smaller, less valuable trees. Second, because funding to field offices for fuels reduction has been linked exclusively to acreage treated, field staff may focus on treating areas out of the wildland-urban interface, in which limitations on prescribed fires significantly increase per-acre treatment costs.
(189) 16 U.S.C.A. [section] 6512(e)(2) (West Supp. 2004). Sen. Ron Wyden (D-OR), one of the brokers of the agreement that allowed the HFRA to pass, declared that the HFRA was the first law in American history to contain a provision containing explicit incentives to protect old growth forests. 149 CONG. REC. S13,452 (daily ed. Oct. 29, 2003) (statement of Sen. Wyden).
(190) 16 U.S.C.A. [section] 6512(f)(1)(A)-(B) (West Supp. 2004).
(191) H.R. 1904, 108th Cong. [section] 102(d) (2003).
(192) See Webster v. Doe, 486 U.S. 592 (1988) (using the statutory language and structure of the underlying substantive statute to determine whether an administrative action is "committed to agency discretion by law" within the meaning of the Administrative Procedure Act, 5 U.S.C. [section] 701(a)(2) (2000)). House Bill 1904's scheme of broad deference to the agencies would have been a powerful factor in a court's review of determination of the reviewability of project design, and particularly inappropriate given the Initiative's agenda to increase timber harvests.
(193) 149 Cong. Rec. S15,377 (daily ed. Nov. 21, 2003) (statement of Sen. Wyden) (noting that the Conference Committee "expressly rejected the House bill's language giving special deference to agency determinations").
(194) S. REP. NO. 108-121, at 28 (2003) (expressing the minority views of Sen. Leahy).
(195) 16 U.S.C.A. [section] 6514(a) (West Supp. 2004).
(196) Id. [section] 6514(b)-(c). The Act's mandatory language indicates that the Secretary may not consider more alternatives than this, irrespective of complex population, species, and topographical conditions. Id. [section] 6514(c)(1). Should the agency propose more than one additional action alternative, the Secretary has "sole discretion" to select which additional action alternative to consider. Id. [section] 6514(c)(2)(A).
(197) Id. [section] 6514(c)(1)(C)(ii).
(198) Id [section] 6514(c)(1)(C)(i). For the purposes of this provision, "early" means during scoping or the collaborative process described in the 10-Year Implementation Plan. Id.
(199) Consistency with the purpose and need of a project is to be determined in accordance with CEQ regulations. Id [section] 6514(c)(1)(C)(ii). As of this writing, while the agencies are busy proposing and authorizing projects under the authority of the HFRA, CEQ has not issued the "purpose and need" regulations.
(200) Id. [section] 6514(d)(1).
(201) Id. [section] 6514(d)(2). Land management agencies have several times attempted to catalog all communities at risk for wildfire. See, e.g., Urban Wildland Interface Communities Within the Vicinity of Federal Lands That Are at High Risk From Wildfire, Part III, 66 Fed. Reg. 43,384 (Aug. 17, 2001).
(202) As the Act defines the WUI, except in the case of community evacuation routes, the WUI could never be more than one and a half miles from a community boundary, and the exception, allowing no alternatives analysis would apply. 16 U.S.C.A. [section] 6514(d)(2) (West Supp. 2004).
(203) See CAREY & SCHUMANN, supra note 115, at i-ii (noting that very little reliable empirical research regarding the effects of fuels treatments exists due to differing study methods and widespread reliance on "personal observation" as a study tool); see also U.S. GENERAL ACCOUNTING OFFICE, REPORT NO. 02-0259, SEVERE WILDLAND FIRES: LEADERSHIP AND ACCOUNTABILITY NEEDED TO REDUCE RISKS TO COMMUNITIES AND RESOURCES 21-23 (2002) (noting, before the unveiling of the Initiative, that the Forest Service lacked reliable data to determine whether regulatory changes to expedite projects are really necessary) [hereinafter GAO, SEVERE WILDLAND FIRES], http://www.gao.gov/new.items/d02259.pdf.
(204) 40 C.F.R. [section] 1502.14 (2003).
(205) 42 U.S.C. [section] 4332(2)(A) (2000).
(206) Id [section] 4332(2)(G).
(207) Id. [section] 4332(2)(C).
(208) Ackerman, supra note 61, at 708-10.
(209) 40 C.F.R. [section] 1500.1(c) (2003).
(210) See THE PROCESS PREDICAMENT, supra note 11, at 18 (noting that concerns among agency personnel that much of their time and analysis is spent addressing potential court interpretations).
(211) Congress has since proposed other bills with "streamlined" NEPA analysis provisions. See, e.g., H.R. 5455, 107th Cong. tit. I (2002) (transferring federal NEPA obligations to states implementing federal highway projects, and proposing a reduced NEPA analysis procedure).
(212) Pub. L. No. 102-381, tit. III,[section] 322, 106 Stat. 1374, 1419. See discussion, supra Part III.A (noting the curtailment of the appeals process under the Act).
(213) 16 U.S.C.A. [section] 6515(a)(1) (West Supp. 2004). The Forest Service quickly issued regulations establishing this process. Predecisional Administrative Review Process for Hazardous Fuel Reduction Projects Authorized Under the Healthy Forests Restoration Act of 2003, 69 Fed. Reg. 1529 (Jan. 9, 2004) (to be codified at 36 C.F.R. pts. 215, 218). These regulations were immediately effective. Id at 1529.
(214) 16 U.S.C.A. [section] 6515 (a)(2)(A)-(B) (West Supp. 2004).
(215) Id. [section] 6515(a)(3). The term "specific written comments" is not defined in the Act, and the implementing regulations unhelpfully parrot the usage of the term in the statute, providing another area of broad agency discretion. 69 Fed. Reg. at 1534. (216) 16 U.S.C.A. [section] 6515(c)(1) (West Supp. 2004).
(217) Id. [section] 6515(c)(2). Dismissing an appellant's predecisional review on the ground that her scoping comments were insufficiently specific would therefore preclude judicial review, according to the Act's exhaustion requirements.
(218) Id. [section] 6516(a).
(219) This issue was accentuated in the recent court decisions stemming from the Clinton Administration's rule phasing out snowmobiling in Yellowstone National Park, which the Park Service, under the Bush Administration, subsequently rescinded. In December 2003, D.C. District Court judge Emmett Sullivan enjoined the Bush Administration rule, and reinstated the phase-out. Fund for Animals v. Norton, 294 F. Supp. 2d 92, 108 (D.D.C. 2003), motion for relief from judgment granted by 323 F. Supp. 2d 7 (D.D.C. 2004), motion to amend denied by 326 F. Supp. 2d 124 (D.D.C. 2004). Then just two months later, Wyoming District Court Judge Clarence Brimmer enjoined the phase-out, stating, "A single Eastern district judge shouldn't have the unlimited power to impose the old [Clinton] rule on the public and the business community." International Snowmobile Mfrs. Ass'n v. Norton, 304 F. Supp. 2d 1278, 1289 (D. Wyo. 2004). The venue provision of the HFRA resolves the locals versus outsiders dispute decidedly for the locals.
(220) H.R. 1904, 108th Cong. [section] 106(a) (2003). The short statute of limitations might also have operated as an amendment to numerous environmental laws which require plaintiffs using their citizen suit provisions to provide notice to other parties. Such provisions appear in the Clean Water Act, 33 U.S.C. [section] 1365(b)(1) (2000), Clean Air Act, 42 U.S.C. [section] 7604(b) (2000), and the Endangered Species Act, 16 U.S.C. [section] 1540(g) (2000). For example, the citizen suit provision of the Clean Water Act requires a potential plaintiff to provide a minimum advance notice of 60 days to the Environmental Protection Agency, the state, and the defendant before filing suit. 33 U.S.C. [section] 1365(b)(1). Thus a plaintiff challenging a project authorized under the HFRA might have found her citizen suit barred by the HFRA's statute of limitations. Strong congressional opposition to this result may have led to the removal of this short statute. See H.R. REP. No. 108-96, pt. II, at 83 (2003) (presenting dissenting views).
(221) 16 U.S.C.A. [section] 6516(b) (West Supp. 2004). The statutory language, though urgent, is qualified: "Congress encourages a court of competent jurisdiction to expedite, to the maximum extent practicable, the proceedings ... with a goal of rendering a final determination ... as soon as practicable." Id. The Act removes the 100-day deadline the House initially proposed for final determinations after the judiciary and civil rights groups objected to the notion of fuels reduction cases taking priority over criminal, civil rights, and terrorism cases. See H.R. REP. No. 108-96, pt. II, at 83 (2003) (noting the opposition of the Judicial Conference of the United States, and ADA Watch, a civil rights coalition).
(222) 16 U.S.C.A. [section] 6516(c) (West Supp. 2004). This is also a compromise result. As introduced, House Bill 1904 limited preliminary relief to 45 days. H.R. 1904 [section] 106(b)(2).
(223) 16 U.S.C.A. [section] 6516(c)(2) (West Supp. 2004). Each renewal is contingent on the parties presenting the court with updated status reports about the project. Id. [section] 6516(c)(2)(B). The HFRA drops House Bill 1904's requirement that the agency is to report to Congress whenever a court issues an injunction. H.R. 1904, [section] 106(b)(3).
(224) 16 U.S.C.A. [section] 6516(c)(3) (West Supp. 2004).
(225) H.R. 1904 [section] 107. This provision, as introduced, required a court to "give deference to any agency finding, based upon information in the administrative record, that the balance of harm and the public interest in avoiding the short-term effects of the agency action is outweighed by the public interest in avoiding long-term harm to the ecosystem." Id. Further, this deference was not to be confined to fuels reduction projects, but would have applied to judicial review of all forest projects. Id. The removal of these provisions suggests some congressional intent to cabin deference to agencies.
(226) Idaho Sporting Cong., Inc. v. Alexander, 222 F.3d 562, 565 (9th Cir. 2000). The Supreme Court has noted that "[e]nvironmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable. If such injury is sufficiently likely, therefore, the balance of harms will usually favor the issuance of an injunction to protect the environment." Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 545 (1987).
(227) The agencies seem likely to frame the issue as a purely technical one, arguing that the Act essentially requires courts to review the agencies determination of the project's short- and long-term ecological soundness. Technical determinations are exactly the kinds of agency decisions to which courts are most likely to defer. See, e.g., Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 103 (1983) (noting that "a reviewing court must generally be at its most deferential" when examining complex scientific determinations of agencies).
(228) See Special Rules Applicable to Public Land Hearings and Appeals, 68 Fed. Reg. 33,794, 33,796 (June 5, 2003) (to be codified at 43 C.F.R. pt. 4) (asserting, in the preamble to BLM's new appeals regulations, simply that its "fire management practices ... [are] scientifically justified," and that it "views its ability to carry out fire management practices as a matter of great urgency").
(229) See OMI & MARTINSON, supra note 100, at 22 (finding that prescribed fire is most effective at preventing recurrence of severe wildfire, but is limited by concerns about air quality and by its political unpopularity, and noting that although anecdotal evidence abounds that mechanical methods were effective, no rigorous, controlled study of the efficacy had ever been performed); see also GAO, SEVERE WILDLAND FIRES, supra note 203, at 21-23 (noting the lack of reliable information about the efficacy of mechanical fuels reduction).
(230) CAREY & SCHUMANN, supranote 115, at 12.
(231) See THE PROCESS PREDICAMENT, supra note 11, at 10 (describing the purpose of the report as setting out how "[s]tatutory, regulatory, and administrative requirements impede the efficient, effective management of the National Forest System").
(232) See, e.g., GAO, DECISIONS INVOLVING FUELS REDUCTION ACTIVITIES, supra note 12, at 3-4 (showing less than 3% of the decisions involving fuels reduction activities (in FY 2001 and FY 2002) were litigated).
(233) Compare House Committee Approves Fire Treatment Bill, Again, PUB. LANDS NEWS, May 2, 2003, at 1-2 (quoting Rep. McInnis, sponsor of the Healthy Forests Restoration Act, "Extreme environmentalists have successfully exploited public opinion and moved management from the field to Washington, D.C. We're trying to move it back a little the other way."), with HANNA J. CORTNER ET. AL., ECOLOGICAL RESTORATION INSTITUTE, NORTHERN ARIZONA UNIVERSITY, ANALYZING USDA FOREST SERVICE APPEALS: PHASE I, THE DATABASE 51 (2003) (analyzing 3,635 administrative appeals of Forest Service decisions and noting that private citizens are more active appellants than environmental groups), http://www.eri.nau.edu/forms/ files/FS-appeals-database-web.pdf.
(234) See AMERICAN LANDS ALLIANCE, COMMENTS ON PROPOSED EXPANSION OF ACTIVITIES ALLOWED UNDER CATEGORICAL EXCLUSIONS (2003), at http://www.americanlands.org/archive.php?subsubNo=1086831612&article No=old_1092427503 (last visited Nov. 14, 2004) (noting that the Forest Service initially provided information to the public about only 25 of 3,500 projects analyzed in support of the new categorical exclusions, that none of the Forest Service data was collected before October 2000, and that only 16% came from formal monitoring while nearly 21% came from "unknown sources" and 48% from personal observation).
(235) See supra notes 61-63 and accompanying text (describing agency decisions as political and commodity-based decisions cloaked in science).
(236) CORTNER ET. AL., supra note 233, at 14-15 (finding that over 30% of all Forest Service appeals changed the outcome of the agency's action, either by winning the appeal in full or in part, by the Forest Service withdrawing or altering the appealed decision, or through informal dispute resolution); see also eTA, FOREST SERVICE PLANNING, supra note 63, at 97 (finding that most project appeals "appear to be justified").
(237) Goodman, supra note 62, at 154.
(238) See supra notes 83-89 and accompanying text (describing the restrictions on the comment process).
(239) See supra notes 90-94 and accompanying text (defining "emergency" and giving examples of situations which might constitute and emergency).
(240) 16 U.S.C.A. [section] 6513(b)(2) (West Supp. 2004).
(241) See THE PROCESS PREDICAMENT, supra note 11, at 18, 34 (claiming that the Forest Service is heavily burdened by its administrative, regulatory, and statutory framework, but also noting its significant internal problems).
(242) See discussion supra Part IV.B.
(243) See supra note 115 and accompanying text.
(244) 36 C.F.R. [section] 215.12(f) (2003).
(245) See sources cited supra note 78 and accompanying text (discussing the Forest Service's reluctance to use its emergency authority, and the likelihood that this will change with the adoption of its new permissive, economic formulation of emergency); see also Special Rules Applicable to Public Land Hearings and Appeals, 68 Fed. Reg. 33,794, 33,796-97 (June 5, 2003) (to be codified at 43 C.F.R. pt. 4) (justifying BLM's new regulations which allow it to put project decisions into effect immediately because they eliminate the "bureaucratic step" of convincing the IBLA or OHA that the public necessity requires it).
(246) See sources cited supra note 119 and accompanying text; see also supra note 183 (discussing the HFRA's exemption from FACA for community wildfire protection plans).
(247) See sources cited supra note 203.
(248) The accountability of the Forest Service is much-criticized. See, e.g., GAO, SEVERE WILDLAND FIRES, supra note 203, at 17-20 (criticizing the Forest Service for lacking financial accountability and consistent direction in funding and planning fuels reduction).
(249) See Bobertz & Fischman, supra note 65, at 439-40 (using these criteria as an analytic framework because they encompass a "broad spectrum of technocratic, democratic, and due process values").
(250) Id at 440.
(251) Id. at 441.
(252) Id. at 440-41.
(253) Quite aware of this phenomenon, the district court in Wilderness Society v. Rey, discussed supra notes 76-81 and accompanying text, observed,
In electing to disregard the express mandate of Congress the Forest Service is acting without authority. The agency is the creature of Congress and must follow the clear, express direction of Congress. The precipitous action here of electing to take the law into its own hands will cause the very difficulty the agency reasons it is trying to avoid. The action taken by the Forest Service here tends to cause the affected communities of interest to polarize, while the appeal process Congress requires is intended to harmonize to the extent possible the various interests in the decision-making process.
(180) F. Supp. 2d 1141, 1143 (D. Mont. 2002).
[c] Jesse B. Davis, 2004. Associate Editor, Environmental Law. J.D. expected May 2005, Lewis & Clark Law School; B.A. 1997, Reed College. Thanks to Professors Michael Blumm and Susan Jane Brown for their patient and thoughtful guidance. Thanks also to Shannon Burns for her generous support and inspiration.
|Printer friendly Cite/link Email Feedback|
|Title Annotation:||Public Lands Management at the Crossroads: Balancing Interests in the 21st Century|
|Author:||Davis, Jesse B.|
|Date:||Sep 22, 2004|
|Previous Article:||Traveling in opposite directions: roadless area management under the Clinton and Bush Administrations.|
|Next Article:||Frankenstein and pitbull? Transmogrifying the Endangered Species Act and "fixing" the San Juan-Chama Project after Rio Grande Silvery Minnow v. Keys.|