There are places in Arizona where dangerously overgrown stands of trees cannot be thinned because an endangered Mexican spotted owl may be nesting nearby.
There are days when controlled fires aimed at safely burning fuels off the forest floor cannot be set, because they might draw complaints about the smoke.
There are plans to reduce the risk of catastrophic wildfires that have to be scrapped after months of heated public debate because a notice was not properly posted, or a form was not filled out correctly.
That is the law.
But catastrophes like the Rodeo-Chediski fire that erupted in eastern Arizona last year destroy every good intention of the law. It wiped out an estimated 40 areas that Mexican spotted owls used for hunting and nesting. It spewed as much pollution into the air as is generated in a day by every car in America. It sterilized the soil and poisoned the water.
The season of wildfires that ravaged the West last year generated bold talk of reform in Congress and from President Bush. But as time passed and embers cooled, those calls for action muted into a quiet chatter, much as they have in the past. So again, with conditions today right for a new wave of firestorms, there is little optimism being expressed for sweeping change that will get things done on the ground.
Federal land managers blame the bureaucracy.
Environmentalists blame the timber industry.
Republicans blame the environmentalists, and Democrats blame the Republicans. Those living in the fire-scarred areas tend to blame them all.
“The fire was inevitable,” said Dave Hovis, a professional woodworker who has lived in Heber for 12 years. “The fire is inevitable again. The blame comes down to Eastern politics. We have allowed politics to rule our natural resources, and now we are losing all of our natural resources.”
Talk of reform in forest management is not new. Neither is the politics that follow.
In 1995, a federal task force created to study the procedural breakdown in forest management found that the layers of laws, regulations and evolving court interpretations had created a system that was cumbersome, time-consuming and unpredictable.
The task force, headed by Jack Ward Thomas, chief of the U.S. Forest Service at the time, concluded there is no inherent conflict in the underlying goals of the nearly 200 laws on the books. But in practice, there is too much regulation, too many procedures and too much opportunity for one group or another to challenge agency decisions in court.
Once in that forum, the laws give judges little direction in weighing their competing objectives, according to the Thomas task force. Ready availability of the courtroom, and the prospect that groups challenging agency decisions will have their legal fees paid in the end, create a disincentive for meaningful public involvement at the front end of the planning process, the Thomas report concluded.
Fearful that the findings in the Thomas report would open the door for Republicans to try to rewrite the underlying environmental laws, the administration of President Bill Clinton shelved the report, according to congressional documents. The report was finally released in 2001, a year after wildfires destroyed about 8.4 million acres in the worst fire season in recent history.
After that devastation was repeated last year, the Forest Service issued a new report, the "Process Predicament." That report, released in June 2002, generally concurred with the original Thomas findings. It also laid much of the blame for the catastrophic wildfires on the cumbersome planning procedures and time-consuming legal proceedings that have become a staple in forest management.
“Unfortunately, the Forest Service operates within a statutory, regulatory and administrative framework that has kept the agency from effectively addressing rapid declines in forest health,” the 2002 study concludes. “Too frequently, paralysis results in catastrophe.”
President Bush followed up on that report in August when he proposed his Healthy Forest Initiative, a plan to streamline the planning process and to expedite appeals and lawsuits for projects aimed at reducing wildfire risks. Key components of the president's proposal include:
• Improving consultation with the U.S. Fish and Wildlife Service so that projects to reduce fire hazards can be checked more quickly to ensure they do not jeopardize threatened or endangered wildlife.
• Creating a more streamlined environmental assessment process so that thinning projects can be planned more quickly. Environmental studies typically take a year or more under current rules.
• Putting a provision in the law that requires judges to weigh the long-term risk of wildfire against potential short-term environmental impacts that might result from fuel treatment projects.
• Expanding the use of “categorical exclusions,” which exempt forest thinning projects from appeals. Under the president's plan, treatments targeting forest thinning on areas deemed at high risk of wildfire could be planned and implemented with an abbreviated environmental study. A separate category under the procedure would be allowed for rehabilitation work needed after a wildfire.
That expedited process is being implemented through administrative actions rather than changes in the law. But it ran into a roadblock in Arizona. While categorical exclusions shield projects from appeals, they can still be challenged in court. Efforts to use a categorical exclusion to proceed with a salvage timber sale for trees killed by the Rodeo-Chediski fire were blocked in January when a New Mexico environmentalist group filed a lawsuit. That case is pending.
NO “SILVER BULLET”
The president's plan does not propose major changes in the underlying laws that govern public land management agencies, said Mark Rey, undersecretary of the U.S. Department of Agriculture, the parent agency of the Forest Service.
In an interview with the Tribune, Rey said the focus is on removing procedural impediments that are preventing those laws from being carried out as intended.
“It's not a silver bullet that cuts through all the confusion that these conflicting laws sometimes generate,” Rey said. “But I don't think that we are in an era where silver bullets are available. What we've got to do here is parse out the areas where the greatest impediments to progress are and address those individually.”
One example is setting guidelines for judges to consider when weighing long-term fire risks against potential short-term damage that might be alleged in a lawsuit, Rey said.
When a thinning project is challenged in court, the judge typically treats it like a traditional logging project, meaning there is little reason not to issue an injunction while the case is in litigation, Rey said. The proposal the president is pushing would create a provision in law that makes the potential risk of future fires a specific element the judge would consider.
“What we've asked the Congress to do is tell the courts that they need to be mindful of the fact that just as you can't uncut a tree, so can't you unburn a forest,” Rey said. “They need to evaluate which is the greater harm in deciding whether an injunction should be issued.”
Environmentalists are generally against the president's plan. They say that nothing in current law prevents a judge from considering long-term fire risks when deciding whether to issue an injunction. They decry the president's proposal as an effort to limit or exclude public involvement in the management of public land.
If the president succeeds, forest management will return to the era when the Forest Service based its decisions on the demands of the timber and cattle industries, and paid little attention to public involvement or protecting the environment, said John Horning, executive director of the New Mexico-based Forest Guardians.
Forest Guardians is among the three most active environmental groups in bringing lawsuits and appeals in Arizona. It was the lead plaintiff in a case filed in 1996, in which the 9th U.S. Circuit Court of Appeals issued an injunction against cutting in Southwestern forests that lasted six months.
“I don't think it's the laws that are the problem,” Horning said. “The problem is that you've got an agency that completely lacks leadership and responds to economic interests at the expense of land management. If the agency were to make ecologically grounded decisions that weren't driven by economic imperatives, they would have far fewer concerns from us.”
As for court injunctions, Horning said, “If the Forest Service was doing a better job, they wouldn't be facing train-wreck mandates.”
FOLLOW THE LAW
Others in the environmental movement agree the Bush administration has failed to make its case that legal and procedural reforms are needed. Taylor McKinnon of the Grand Canyon Trust, a Flagstaff group with a long record of working with the Forest Service on thinning projects, said the agency is frequently challenged because it is inept at following the law.
Rather than rewrite the law, the Forest Service needs to bring in specialists on the legal requirements and changing court edicts when thinning projects are planned, McKinnon said. That would prevent the mistakes in documentation or procedures that typically derail agency plans, he said.
“What's slowing these projects down is an understaffed Forest Service that is committing errors in the planning process, errors that are creating a legitimate basis for appeals and litigation,” McKinnon said. "Once the Forest Service is following the law, then maybe let's have a discussion. We need to start getting the process right, then let's look at it and see how it can be improved.”
Harv Forsgren, Southwestern regional forester for the agency, said there is “a lot of truth” in McKinnon's criticism. In this region, the agency is putting more emphasis on technical and legal planning at the beginning of projects, rather than waiting until the end and trying to defend plans that contain procedural mistakes, he said.
In Congress, bills to reform the planning and appeals process involving forest thinning projects have moved slowly in committees. Among the most ambitious proposals are measures sponsored by Rep. John Shadegg, R-Ariz. He has introduced two separate bills that would exempt thinning projects deemed necessary to prevent extreme wildfires from legal actions that might delay treatments.
Other Republicans in the state's delegation have proposed more targeted bills. Rep. Jeff Flake, R-Ariz., seeks to provide a temporary legal exception for tree cutting on areas declared national disasters.
That could mean quicker action on areas burned by wildfires, such as the Apache-Sitgreaves National Forests, as well as forests destroyed by insects or drought, he said.
Sen. Jon Kyl and Rep. J.D. Hayworth, both R-Ariz., have introduced separate proposals to fund research centers on forest health.
Shadegg acknowledged that the proposals in Congress amount to “nibbling around the edges.” Eventually there will have to be a push to rewrite some of the underlying environmental laws, including the Endangered Species Act, Shadegg said, calling that legislation “the biggest obstacle to rational environmentalism in this nation.”
But for now, political reality dictates less ambitious reform, he said.
Components of the various reform proposals have been combined into a single bill that will be introduced by Rep. Scott McInnis, R-Colo., chairman of the House Resources subcommittee on forest health, Shadegg said.
McInnis' bill would authorize a shortened analysis procedure on up to 20 million acres deemed at high risk of catastrophic wildfire, insect infestation or disease, according to an outline released Friday. The bill, which has not yet been introduced, also force judges to consider fire danger in deciding whether to issue an injunction blocking thinning treatments, and to re-examine injunctions that block treatments every 45 days.
While some Western Democrats have sided with Republicans in seeking changes in the law that will allow forest thinning projects to move ahead more quickly, many Northeastern Republicans oppose them, Flake said. With virtually no federal land in many states in the Northeast, some Republicans from that region, fearful their voters will consider them unfriendly to the environment, are reluctant to back changes in laws governing forest management, Flake said.
“They worry about the League of Conservation Voters or the Sierra Club score cards that come out,” Flake said. “There's no downside and a lot of upside because they have a more balanced score card going into an election.”
While Shadegg said reform measures such as the McInnis bill might have a good chance of passing the House, Kyl said the prospects in the Senate are not good. Only one Democratic senator, Sen. Dianne Feinstein, D-Calif., has consistently supported reform efforts in the Senate aimed at hastening the process to get thinning projects done on the ground, Kyl said. The rest of the Democratic caucus, and several Republicans from Northeastern states, have buckled to environmental lobbyists out of fear of being painted as anti-environment, Kyl said.
“I'm supposed to be upbeat and optimistic,” Kyl said. “But the reality is that the politics here are so dominant. It's just a very politically driven proposition, and I don't know how you break through it and get anything done.”
One model for reform might be found just south of the Apache-Sitgreaves, on the Fort Apache Indian Reservation where the Rodeo-Chediski fire began, said Dallas Massey, chairman of the White Mountain Apache Tribe.
The tribe has been more successful at planning and implementing thinning projects on the reservation than the Forest Service has to the north, he said. Areas that have been thinned generally survived the Rodeo-Chediski fire with little damage, while those that had not been treated were decimated, he said.
The tribe must follow all of the same environmental laws as the Forest Service when planning a thinning project. However, its decisions can be appealed only by tribal members, not environmental groups or other outsiders, he said.
That means tribal members take an active role in planning forest treatments, but because they are typically not blocked by lawsuits and appeals, work can actually get done on the ground, he said.
Since the Rodeo-Chediski fire, salvage timber cutting to remove dead trees has proceeded on the reservation while it has been blocked on the adjacent Apache-Sitgreaves National Forests because of a lawsuit.
“The bottom line is, are you going to be protecting these small trees by filing lawsuits?” Massey said. “After that, everything will burn down. There's going to be nothing left. Wildlife, those habitats, everything you are fighting for is not going to be there, forever.”