Vermont Journal of Environmental Law

Wildfire and Forest Restoration: A Case Study of the Biscuit Fire and the Healthy Forests Restoration Act of 2003

By Daniel R. Reesor

April 26, 2006

INTRODUCTION

In the small town of Central-Point, Oregon, with the largest wildfire of Oregon's recent history still burning in the nearby Siskiyou National Forest, President George W. Bush announced his new initiative to restore forest health and prevent wildfires on the public wildlands. The President's new strategy, entitled the "Healthy Forest Initiative," sought to expedite the preparation and implementation of "hazardous fuels reduction projects." The "Healthy Forest Initiative" later became known as the Healthy Forest Restoration Act of 2003 (HFRA), enacted by Congress in late 2003.

Congress created the HFRA in response to two of the worst wildfire seasons in over half a century. During 2000 and 2002, more than seven million acres burned each season, double the historic average. The western states of Oregon, New Mexico, Colorado, and Arizona "registered their worst wildfires" in modern history.[1] These unprecedented wildfires were in large part the result of high fuel buildup from a century of wildfire suppression. Areas which once experienced frequent, low-intensity ground burns were now subject to high-intensity stand- replacement fires.

This article illustrates that current forest policies, which promote cutting of large trees in replacement of fire's natural role in the ecosystem, do not restore the health of forests; rather they further destroy ecosystems damaged from over a century of total fire suppression policy. More specifically, this article examines whether the HFRA policy of "streamlining the restoration process" succeeds in creating "healthy forests;" or whether the Act subverts environmental regulations in order to expedite logging on public lands. Part I discusses the current scientific understanding of fire's role in forest ecosystems. Part II applies this science to recent, as well as current wildfire forest policy. Part III provides a case study of the Biscuit Fire Recovery Project in southern Oregon and northern California, and compares it to the provisions under the HFRA. Finally, Part IV concludes by providing alternatives to the HFRA and proposes a new direction for future U.S. forest policy.

I. CURRENT SCIENTIFIC UNDERSTANDING OF FIRE AND THE FOREST ECOSYSTEM

The fact that fire is not the death of the forest ecosystem, rather a different stage of the forest's life cycle, is difficult for many people to understand.[2] One possible reason for this misunderstanding is that the life cycle of forests "transcend the scale of human experience."[3] While the average human life span in the United States is approximately seventy five years, what we commonly conceive as an old-growth forest can take up to three hundred years to reach maturity. In fact, a forest is a living biological community that requires disturbances such as fire, for renewal; rather than an unchanging, fragile element.[4] Low, moderate, and occasional stand- replacement fires are a natural part of the ecosystem and, as scientific studies have found, are essential to healthy forests and the survival of numerous species.

A. Fire and Recovery in Forest Ecosystems

Nonhuman ignitions of wildfires occur from lightning strikes, volcanic eruptions, and other natural occurrences. These ignition sources, over millions of years, have led to ecosystem dependency on fire. Scientific data shows that a wildfire is a "vital disturbance process[ ] in forests" with many species depending upon it for their survival.[5] For instance, Ceanothus seeds have been found to wait up to 200 years for fire to enable them to sprout.[6] Another example is closed cones of the Lodgepole pine, which depend on high-intensity fire to sprout seeds. The cones open as a result of the heat and "release seeds into the newly burned seedbed, often at the rate of thousands of seedlings per acre."[7] Other plants, such as the magenta-flower, also known as fireweed, only grow on specific burned areas for a few years.[8]

Many tree species have evolved to tolerate, and even depend on, certain types of fire and actually decline in abundance during long periods without fire.[9] The most prevalent of these fire-dependent tree species in the western United States is the ponderosa pine.[10] The ponderosa pine benefits from frequent, low-intensity fires, and actually contributes to these types of fires by shedding large volumes of highly flammable needles each year.[11]

Many broadleaf trees depend upon fire in the western forests as well, including the quaking aspen and western oak species.[12] For aspen, "large burns over 1,000 acres are needed to perpetuate the species because high populations of elk can consume and kill most of the seedlings or sprouts in small burned areas."[13] Large, high-intensity fires, such as the 1988 Yellowstone burn, allowed prolific regeneration of aspen from its minute windborne seeds.[14] Various species of oak also depend on fire to open areas within a forest and destroy competing conifer trees.[15]

Ecosystems throughout the United States are dependant on fire to sustain their life-cycles. Numerous tree species, both conifer and broadleaf, cannot survive, and decrease in numbers during extended periods without fire. Thus, as a result of over a century of total fire exclusion policy in the forests of the United States, many trees species have depleted in number, and forest ecosystem health has suffered.

B. Species' Survival and Regeneration after Wildfires

Over the years, many tree species evolved to survive low-to-moderate fires within the forest. These defense mechanisms allowed certain trees to live for hundreds, sometimes thousands, of years. A primary example of such a species in the western United States is the ponderosa pine. In order to guard against fire damage from these low-intensity fires, "ponderosa pines produce abundant pitch, which allows them to seal off fire wounds."[16] This enables them to survive numerous fires, "occasionally living beyond 800 years."[17] Other conifer trees, such as the western larch, Douglas-fir, coastal redwood, and giant sequoia, also produce thick bark to protect themselves from fire.[18] As these trees mature, they shed their lower branches in order to guard from fire reaching the tree canopies.[19]

Many broadleaf species also have defense mechanisms which provide protection against low-to-moderate fire. Oak species, such as the Oregon white oak, have moderately thick bark enabling them to survive low intensity fires.[20] This was illustrated by the Wilkes exploration party in 1841, when they noted that extensive fires "destroyed all vegetation, except the oak trees, which appear to be uninjured."[21]

While many tree species have defense mechanisms enabling them to survive wildfires, other tree and plant species do not survive fire. Nonetheless, a study of the 1984 Rosie Creek Fire in Alaska found "all species present before a fire start growing within five years" after the disturbance.[22] Even so, forest recovery rates vary depending on altitude, slope, attitude, and other characteristics. For example, recovery of higher elevation forests generally takes longer than lower elevations.[23] Botanists have provided general examples of stages of succession,[24] which will be addressed below.

After a stand-replacement fire, sun-dependant species, such as grasses and small woody brush, dominate the burned area.[25] These species subsequently provide shade and protection for young conifer-tree seedlings, which soon outgrow the grasses and brush. As the conifer-tree seedlings reach maturity, they shade out the early succession species that were dependent on the abundant sunlight for their growth. Finally, ground fires remove what remains of these grasses and hardwood brush, and result in what is traditionally known as an old-growth forest.[26]

Many ecological benefits can occur as a result of natural recovery. Nowhere is this more evident than in the natural recovery process after the Yellowstone wildfire of 1988. Scientists believed that it would take decades for vegetation to appear within the fire recovery zone.[27] However, grasses and wildflowers returned the following spring.[28] In fact, the natural recovery of both the land and rivers at Yellowstone has been described as "thriving."[29] Not only do many native plants within the region, such as aspen, benefit from fire; much of this native vegetation actually depends upon fire disturbance for its survival.[30]

In just a few years since the Biscuit fire in southern Oregon, the largest wildfire of the 2002 season, natural recovery is occurring as well. Pine trees are sprouting under the shaded protection of the torched timber stand, and wetland plants are thriving without the competition for moisture produced by the previous forests.[31] At a fundamental level, these natural recoveries show that natural forest disturbances produce "biological legacies" upon which future life depends.[32] These "biological legacies" include snags and downed logs, which have been described as "life boats" for numerous plant, animal, and fungal species.[33]

C. Fire Suppression Effects on Forest Ecosystems

Over a century of policies mandating total fire suppression has changed the forest ecosystems of the United States, especially in western regions where frequent intervals of fire occurred. Due to both fire suppression and logging, the structure of many western forests has now been altered enough to change the fire regime. Although fires are still ignited, "only the most intense fires escape suppression and cover large areas."[34] As a result, "it is now widely accepted that many . . . forest[s] . . . are overstocked and vulnerable to catastrophic crown fires."[35]

The frequency of high-intensity, stand-replacement fires has substantially increased, while the low-intensity ground burns have all but vanished. The high-intensity, stand-replacement fires are due in large part to heavy fuel build up from the removal of ground burns that used to frequent the dry forests of the West. Ponderosa pine forests are especially affected by suppression of ground burns, and now burn severely in wildfires.[36] Furthermore, riparian areas, which are highly sensitive ecological regions, lose their ability to serve as fuel breaks.[37] Recently, extreme erosion has occurred along streams and rivers because "many dense conifer stands lining stream beds burned in high-intensity fires."[38]

Most fire-dependent tree species declined due to total fire suppression policy.[39] Nowhere is this more evident than in the pine forests of the West. Prior to the twentieth century, much of the West was comprised of old-growth pine forests. The under-story was sparse due to frequent ground burns. "Travelers often rode horseback or pulled wagons for miles through these forests without needing to clear trails."[40] In 1857, Lt. Edward Beale wrote of northern Arizona:

It is the most beautiful region I ever remember to have seen in any part of the world. A vast forest of gigantic pines, intersected frequently with open glades, sprinkled all over the mountains, meadows, and wide savannahs, and covered with the richest grasses, was traversed by our party for many days.[41]

Today, these pines are less likely to live as long or develop to such a large size. Pine forests are now commonly in dense stands, exposing trees to competitive stress that result in poor vigor and increased mortality. "The fertilizing effect of frequent burning is lost, and a buildup of fuels, especially ladder fuels, makes severe fires more likely."[42]

Broadleaf trees are also dramatically affected by fire suppression in the West. Groves of oak trees mixed with grassy fields were once common throughout the West. Today, these areas are transforming into woodlands, with woody shrubs and conifers replacing the Oak trees and prairie grasses."[43]

When looking at historical descriptions of forests in the West, we can see how fire suppression over the past century reshaped the landscape we now call our National Forests. Furthermore, by understanding the scientific relationship between fire and ecosystems, we can better appreciate the important role fire has in ecosystem health and sustainability. This evidence can aid in shaping our future forest policy to meet the goal of healthy forests. However, in order to develop future forest policies that actually sustain healthy forests, it is important to analyze current fire policy with available science, and then determine the direction needed for future legislation and environmental regulations.

II. WILDFIRE POLICY, RESTORATION, AND ITS RELATION TO SCIENCE

In North America, Native American tribes often used fire for hunting and gathering purposes, as well as agricultural needs. In the West, tribes often burned meadows within the forests to attract deer for hunting.[44] Furthermore, fire was used by tribes for ceremonial purposes, cultivation of important food plants, and as a weapon of warfare.[45]

As Europeans began to settle in North America, the practice of setting wildlands ablaze became even more prevalent. Settlers used fire to help clear forest to build homesteads and clear fields to grazing.[46] In the West, prospectors burned mountain forests to expose mineral deposits.[47] Unintentional wildfires were ignited by new railroads and poor logging practices.[48] The unregulated logging industry left large accumulations of dead, dry limbs surrounding new communities, often leading to disaster. As a result of practices such as these, fires burned millions of acres throughout the West in 1889.[49]

As the European-American population grew in the West, wildfires were increasingly viewed as harmful to the new towns and mining camps.[50] Fires once seen as a tool for societies to cultivate land and clear forests for building were now seen as a threat. Concerns of towns burning to the ground led to a major policy shift in regard to wildfire and forest management. Even though forests had evolved to tolerate and depend on fire, ecological importance took a back seat to the demands of civilization and industrialization. The twentieth century would see a policy of total fire removal from forest ecosystems of the United States.

Prior to 1900, there was no widespread fire protection in the United States. [51] Essentially, "fire ran free in the forest."[52] However, while there were occasional stand-replacement fires, most western regions were regularly subject to low-intensity ground fires. Even so, forest managers saw all wildfire as a threat to the ever-growing population of the West, and began to shape policy to deal with this danger. One of the primary objectives of the newly created U.S. Forest Service (USFS) after 1900 was the elimination of fire throughout western forests. This policy is illustrated by Chief Forester Henry Graves' comment in 1913, "the necessity of preventing losses from forest fires requires no discussion. It is the fundamental obligation of the Forest Service and takes precedence over all other duties and activities."[53] This policy, in conjunction with developing technology, increased manpower, and successful fire prevention messages such as Smokey Bear, reduced wildfires to historic low levels by the 1950s.[54]

While forest fires were successfully prevented during the first half of the twentieth century, fuel build-ups had increased to dangerous levels, essentially creating a "time bomb" waiting to explode.[55] During the second half of the twentieth century, stand-replacement fires began to occur with alarming frequency throughout the West. Even though technology and funding improved, wildfires continued to increase in size and severity. Low-intensity ground burns that once removed small trees and brush, essentially "thinning" the forest, were removed, resulting in ever-increasing stand-replacement fires.

A. The 1995 Salvage Logging Rider

As wildfire size and severity reached record levels, the United States Congress responded in 1995 with the Emergency Salvage Timber Sale Program, commonly known as the "1995 Salvage Logging Rider." The rider "effectively suspend[ed] all environmental laws in order for the Forest Service to expedite Ôsalvage' timber sales on national forests during the emergency period which ended September 30, 1997.[56] The definition of "salvage timber sale" included Ôthe removal of disease or insect-infested trees, dead, damaged, or down trees, or trees affected by fire or imminently susceptible to fire or insect attack.[57] This term also included the removal of associated trees."[58] Thus, "salvage was defined very broadly, and could possibly . . . include almost any timber sale."[59] While the 1995 Salvage Logging Rider stated a goal of reducing wildfires by thinning over-stocked trees, it in essence was a green light to the timber industry, making timber sales exempt from environmental protections.[60]

The 1995 Salvage Logging Rider ran counter to many scientific studies showing the benefits of natural recovery, and the damages of salvage logging operations on fragile, fire-damaged ecosystems. In fact, scientific research shows that post-fire salvage logging can actually harm fire-damaged forests. A recent study of seven of the world's leading forest ecologists concluded that "salvage logging can impair ecosystem recovery."[61] The study noted that salvage logging "undermines" long-term benefits such as biological diversity."[62] Scientific evidence shows that removal of trees, in conjunction with soil exposure and compaction from salvage logging, often compounds the ecological stress left in the wake of wildfire.[63] In fact, logging itself has been attributed to wildfires, igniting fires from chainsaw and machinery use. In addition, "slash piles" are often left after logging, serving as dry fuel for future wildfires.

Even though scientific studies illustrate the harmful effects of salvage logging, it remains a primary tool of post-fire rehabilitation policy of the USFS and the Bureau of Land Management (BLM). A common assumption is that immediate actions are needed to rehabilitate or restore the fire-damaged landscape.[64] However, as illustrated above, the effects of salvage logging are often times harmful to recovering forest ecosystems.

B. The National Fire Plan

In the ensuing years after the massive timber harvests of the 1995 Salvage Timber Rider, the National Forests, damaged from over a century of fire suppression, continued to burn. During the summers of 2000 and 2002, this "time bomb" essentially exploded, with two of the worst wildfire seasons in the history of the United States. In response to the 2000 wildfire season, the Departments of the Interior and Agriculture developed a report entitled "Managing the Impact of Wildfires on Communities and the Environment," later known as the National Fire Plan (NFP).[65]

The NFP was designed to reduce wildfires "through rehabilitation, restoration and maintenance of fire-adapted ecosystems, and by the reduction of accumulated fuels or highly combustible fuels on forests, woodlands, grasslands, and rangelands."[66] In order to fulfill this purpose, the NFP outlined five key points: (1) Firefighting, (2) Rehabilitation, (3) Hazardous Fuels Reduction, (4) Community Assistance, and (5) Accountability.[67] Points two and three are most applicable to forest ecosystem health and restoration, and will be addressed in this article.

In regard to point two, "rehabilitation," the NFP prioritized conducting emergency stabilization and rehabilitation activities on landscapes and communities affected by wildland fire. This emergency rehabilitation is aimed at "protecting lives and properties downstream of burned areas."[68] The projects are being implemented over several years, and include "reforestation, road and trail rehabilitation, fence replacement, fish and wildlife habitat restoration, invasive plant treatments, and replanting and reseeding with native or other desirable vegetation."[69]

As to point three, "hazardous fuels reduction," the stated goal is "reduce[ing] the risks of catastrophic wildland fire to people, communities, and natural resources, while restoring forest and rangeland ecosystems to closely match their historical structure, function, diversity, and dynamics."[70] This applies to both pre and post-fire treatments, and includes use of prescribed burning and mechanical thinning, among other treatments.[71] This was an important shift in national forest policy, acknowledging the benefit of reintroducing fire into the ecosystem.

Scientific studies show that pre-fire thinning can reduce the threat of catastrophic wildfires, especially when done in conjunction with prescribed burns on forest lands. The three essential components of fire are fuel, oxygen, and heat.[72] If any one of these is absent, then combustion cannot occur.[73] Thus, at a fundamental level, by reducing fuels in the forest through selective thinning and prescribed burns, the essential component of fuels is reduced and wildfires are prevented. Furthermore, by reintroducing fire into the ecosystem using prescribed burns, the essential benefits of fire are returned to the ecosystem, upon which numerous species depend.

However, the benefits of pre-fire thinning can be outweighed by adverse effects if not properly exercised. It is critical that the appropriate trees are thinned, in most instances smaller diameter trees and shrubs, in areas and conditions where soil compaction and erosion can be minimized. Disregard for these adverse effects can severely damage forest ecosystems, rather than aid in forest recovery.

C. The Healthy Forest Restoration Act of 2003

As the NFP was still being implemented, the nation witnessed an even more devastating fire season than in 2000. The 2002 season saw nearly seven million acres of forests burn, proving to be the worst fire season in modern United States history. The Federal Government again responded, enacting legislation in an effort to curtail wildfires. In the small town of Central-Point, Oregon, with the Biscuit Fire still burning in the mountains of the Rouge-River-Siskiyou National Forest, President George W. Bush announced his new initiative entitled the "Health Forests Initiative" (HFI). The HFI had a goal of "accelerating implementation of the fuels reduction and ecosystem restoration goals of the NFP in order to minimize the damage caused by catastrophic wildfires by reducing unnecessary regulatory obstacles."[74] The HFI later became known as the Healthy Forests Restoration Act of 2003 (HFRA).

In essence, the HFRA focuses on point three of the NFP—"hazardous fuels reduction." The Act is used as a catalyst for "hazardous fuels reduction," containing a variety of provisions aimed at expediting the preparation and implementation of these projects under the NFP.[75]

In an effort to expedite the hazardous fuels reduction projects, it is vital to ask whether important environmental safeguards are being set aside by the HFRA. This question can be answered by comparing the HFRA to the environmental laws and regulations used in the Biscuit Fire restoration effort.

III. THE SOUTHERN OREGON BISCUIT FIRE RECOVERY AND THE HEALTHY FOREST RESTORATION ACT OF 2003

In August of 2002, George W. President Bush used the Biscuit Fire as an illustration of why his Healthy Forest Initiative (HFI) was so urgently needed to restore the forests of the West. During the President's speech promoting the HFI, he criticized current environmental regulations as ineffective.[76] According to President Bush, "[t]he forest policy of our government is misguided policy . . . [i]t doesn't work." [77] While speaking in Central Point, Oregon, near the raging Biscuit Fire, the President went on to assert, "we need to understand, if you let kindling build up and there's a lightning strike, you're going to get yourself a big fire."[78]

In fact, the Biscuit Fire was the largest wildfire in Oregon's recorded history, with nearly 500,000 acres burned.[79] Primarily within the Siskiyou National Forest, the fire encompassed most of the Kalmiopsis Wilderness, nearly 165,000 acres of late-successional reserves (LSRs), over 3,400 acres in Wild and Scenic River Corridors, and almost 200,000 of inventoried roadless areas (IRAs).[80] The region is renowned for the diversity of its plant life, including the Kalmiopsis Wilderness Area, which is home to a repository of rare plant species.[81] Furthermore, the forest is home to numerous threatened species listed under the Endangered Species Act (ESA), including the Northern Spotted Owl, the Bald Eagle, and the Marbled Murrelet.[82] While at first glance, the fire appears to have devastated the Siskiyou Forest ecosystem, debate rages over whether the fire did more harm or good to the region. Even more contentious of an issue is whether salvage logging should be used in an effort to restore the forest damaged by the fire. In essence, the issue is one that is seen throughout the West—in attempting to prevent wildfires and restore forests, should we "log it or leave it?"

A. Fire-dependant Ecology of the Siskiyou National Forests

Scientific and historical evidence show that "[f]ire has always been an integral part of the forest ecosystem in southwestern Oregon, and the Siskiyou National Forest."[83] According to local Native American tribes, "fire was used extensively for the last 10,000 years."[84] After the establishment of the Siskiyou National Forest in 1907, major fires consumed 179,000 acres in 1917 and 152,000 acres in 1918.[85] Scientific data from six sites near the Biscuit Fire Recovery Area show that "for the time period of 1700 to 1900 . . . the average composite fire return interval was 12 years, with a range of 9 to 19 years."[86] In the warm, dry summer, the forests of the Siskiyou Mountains are easily subject to wildfire due to the "Mediterranean" climate.[87] Thus, the last century's "recent reduction of fire is new to the ecosystem."[88]

While the forests of southern Oregon were subject to frequent fires, most of these fires were low-intensity, ground fires rather than the high intensity, stand-replacement fire seen on portions of the Biscuit Fire. In fact, wide-spread fire suppression throughout the West has led to reduction in low-intensity fire,[89] which results in heavy fuel buildups. This reduction of surface fires has led to inevitable overcrowding of the Siskiyou forest, as described in the Biscuit Fire EIS: "[t]rees now grow closer together with intertwined canopies and the density of shrubs is much greater. This increase in vegetation, or fuel, makes it extremely difficult, and in some situations impossible, to control forest fires once they start."[90] This was evident in the Biscuit Fire, in which millions of trees burned during a 120-day period, requiring deployment of 7,000 firefighters and support people during the peak of the blaze.[91]

B. "Red-Tape" and "Endless Litigation"

When promoting his "Healthy Forests" Initiative in Central Point, Oregon, President Bush spoke of the need to thin forests such as the Siskiyou National Forest:

We need to thin, we need to make our forests healthy by using some common sense . . . . [I]t makes sense to encourage people to make sure that the forests not only are healthy from disease, but are healthy from fire . . . [T]here's just too many lawsuits, just endless litigation. . . . [T]here's a fine line between people expressing their selves and their opinions and using litigation to keep the United States of America from enacting common sense forest policy.[92]

Just how accurate is this statement? United States Congresswoman Elizabeth Furse of Oregon noted during Congressional Hearings in 1995 that the harvesting of "only three percent of [the timber] volume has been delayed by lawsuits."[93] More specifically, on the Biscuit project, of the twelve separate timber sales currently offered by the USFS, the Ninth Circuit has enjoined six old-growth sales.[94] However, these six old-growth timber sales represent only twelve percent of the total logging proposed by the USFS preferred alternative under the FEIS.[95] By most standards, twelve percent of the largest salvage logging sales in United States history being temporarily enjoined from proceeding is far from "endless litigation."

On the Biscuit project, following the National Environmental Policy Act (NEPA) guidelines, the USFS issued a draft environmental impact statement (DEIS), which triggered more than 23,000 comments during the public comment period.[96] The Rouge-River-Siskiyou National Forest Ranger District then proceeded to issue a two-volume, Final EIS (FEIS) approximately 1,000 pages in length, which included consideration of seven alternatives, including a no-response.[97] Whether or not this may be considered as "needless red tape" is disputable. A closer look is needed at NEPA, including what purposes and procedures it sets forth and its ultimate effect on the decision making of the Rough-River-Siskiyou National Forest managers pertaining to the Biscuit Fire Recovery Project.

C. The National Environmental Policy Act of 1969 (NEPA)

NEPA has been called the "foundation of modern American environmental protection."[98] Essentially, NEPA is a mandate by Congress requiring federal agencies to gather and analyze environmental data, prior to undertaking any "major Federal actions significantly affecting the quality of the human environment."[99] "Whether there is a Ômajor federal action significantly affecting' [the quality of the human environment]' is a threshold question to be answered by the agency in an environmental assessment (EA)."[100] "If the EA determines that the [threshold] test has been met, then the agency does an EIS. If the EA determines there is no Ômajor federal action significantly [affecting the quality of the human environment],' then the agency issues a Ôfinding of no significant impact' (FONSI), and no EIS is done."[101]

The Act serves two vital roles in environmental policy: (1) it promotes informed decision-making by federal officials, and (2) provides public input into federal agency decisions.[102] First, NEPA mandates a detailed environmental impact statement (EIS) be completed prior to any decision of the major federal action.[103] Second, prior to issuing its final environmental impact statement (FEIS), federal agencies must allow public comment of the draft environmental impact statement (DEIS).[104] In fact, courts have consistently stated the dual goals of NEPA are "informed decision-making and informed public comment."[105]

This "informed decision-making and public comment" was evident in the Biscuit Fire Recovery Project, in which the U.S. Forest Service received over 23,000 comments.[106] Many of these public comments requested more refined information from the Forest Service, resulting in "several situations [where] reduced acres [were] considered for potential salvage harvest. . . ."[107] This was because the Forest Service found "[many] stands originally determined to be available for salvage actually did not meet . . . the criteria that would allow salvage . . . ."[108] The criteria included resource protections of "Archaeological Sites, Sensitive Plant sites . . . and active landside areas."[109] Had the Forest Service not been required, under NEPA, to consider public comments and make an "informed decision," many of the trees which did not meet criteria for salvage logging would have been cut.

The HFRA greatly restricts this "informed decision-making and informed public comment" under NEPA. Specifically, Section 104(c) and (d) provide the Secretary discretionary authority to limit the analysis ordinarily required under NEPA—meaning the agencies would not be required to analyze and describe "a number of different alternatives" within the EIS, which ordinarily is required under NEPA. The limited analysis under Section 104(c) and (d), require only the analysis of: (1) the proposed action, (2) a no action alternative, and (3) an additional action alternative (only if one is proposed during scoping or the collaborative process that meets the purpose and need of the project). "If more than one additional alternative is proposed, the Secretary shall select (at her sole discretion and not subject to judicial review) which additional alternative to consider . . . ."[110] Thus, instead of the seven alternatives considered under the Biscuit fire EIS, only two or three would be required under the HFRA. This is troubling, given the fact that consideration of alternatives is described as the "heart of the environmental impact statement."[111] Thus, the HFRA in essence gives the Secretary the authority to take away the very core of NEPA itself, the information on which an agency official can make an "informed decision."

Furthermore, in areas designated as a Wildland Urban Interface (WUI) or areas within one and a half miles of an "at-risk community,"[112] federal agencies are not required to analyze any alternative other than the proposed action. Thus, public input and informed decision making is all but eliminated. It is important to note, however, that "HFRA does not prevent the federal agency from analyzing additional alternatives," rather it does not require the agency to do so.[113]

The gathering of information prior to making a decision on issues such as salvage logging or pre-fire thinning is critical to success. As mentioned previously, these areas are especially vulnerable to erosion and soil compaction, and the general effects of logging. The wrong decision could have consequences for years to come. An ancient proverb states that, "haste often leads to waste." It is vital that agency decision makers take the time to analyze science and listen to public comments prior to making their decisions on the ground.

Therefore, in regard to the "needless red tape" that President Bush referred to in his speech promoting his HFI, the information and public comment is not "needless," but rather is of vital importance to the decision making process of the USFS. Without the environmental safeguards of NEPA, over 23,000 public comments would not be heard; including the U.S. Environmental Protection Agency's comments on the DEIS, urging the Forest Service to severely limit it original logging plans on the Siskiyou National Forest.[114]

As a result of NEPA, the Rogue River-Siskiyou National Forest District made a final determination to cut approximately 370 million board feet of timber,[115] rather than its initial choice of logging 518 million board feet.[116] Thus, NEPA's mandate of public comments and consideration of several alternatives played an important role in the outcome of the Biscuit Fire Recovery Project, and would have been dramatically different under the HFRA, a difference of 148 million board feet of cut timber to be exact.

D. Administrative Appeals and Judicial Review under the HFRA

Further efforts to expedite "hazardous fuel reduction projects" have been implemented by Congress under the HFRA, including the areas of administrative appeals and judicial review. The HFRA sets forth certain restrictions to federal courts under Sections 105 and 106 of the Act. Section 105 gives strict guidelines for administrative appeals, while Section 106 gives certain requirements and guidelines for judicial review.

Specifically, Section 105 provides that a person may challenge an authorized hazardous fuel reduction project only after exhausting the administrative review process.[117] Of even greater significance, Section 105 limits issues that may be considered by the courts to those that were raised during the administrative process.[118] However, an exception to this rule applies if the court determines either: (1) the issue would have been "futile" to argue, or (2) there was insufficient information provided by the agency enabling the person to raise the issue in a timely manner.[119]

Guidelines for judicial review are included under Sections 106(a) and (b) of the Act, which include: (1) limiting lawsuits which can be brought to the federal district court where the project is located; and (2)"encouraging" courts to expedite review of these projects "to the maximum extent practicable."[120] Finally, Section 106(c) sets limits for judges granting preliminary injunction by: (1) setting a 60 day limit on preliminary injunctions, and (2) requiring the court to weigh the "short and long term consequences of proceeding with the project against the short and long term consequences of not proceeding."[121] However, the weighing of "short and long term consequences" is of little significance, since this is what courts ordinarily do anyway.[122]

Thus, the judicial review provision of the HFRA creates additional requirements for persons seeking to challenge "hazardous fuel reduction projects," requiring citizens to be "particularly vigilant during the administrative review process."[123] However, it still allows judicial review of administrative decisions, such as in the Biscuit project, if the requirements are met.

E. "Hazardous Fuel Reduction"—HFRA Policy and the Salvage Logging of the Biscuit Fire Recovery Project

While it is nearly undisputed that there is a problem of fuel build-up on National Forests, causing increasing catastrophic fires, the question of what to do about it is fiercely debated. Most agree that some thinning is needed in strategic areas, such as fuel breaks and Wildland-Urban Interface areas (WUI),[124] along with reintroduction of fire by using prescribed burns. However, the debate intensifies on what trees to cut, how many, and where—essentially, what should be included under "hazardous fuel reductions." Under the HFRA, "up to 20 million acres of federal land" are subject to expedited measures for hazardous fuels treatments,[125] making this issue all the more critical to determine.

Hazardous fuel treatment projects are defined under Title I, Section 102(a) of the HFRA. Under the Act, any land designated as a hazardous fuel reduction project is eligible for "expedited review procedures under HFRA."[126] These generally include: (1) wildland-urban interface areas; (2) most condition class 2 and 3 lands;[127] (3) windthrow, blowdown, or areas of epidemic disease or insects;[128] or areas of threatened and endangered species habitat.[129] Thus, the definition is very broad, and can include most forest land outside of wilderness areas.

For example, if timber sales on the Biscuit project were designated under the HFRA, they would be open to "expedited environmental analysis," restricting or exempting them from regulations under NEPA. The agency official would not have to include a list of alternatives under the EIS, restricting public comment and access to courts. Therefore, under the HFRA, the USFS's timber sales on the IRAs, LRSs, old-growth reserves, and roadless areas, would be put on the fast-track for logging by timber companies, with limited public comment and judicial review.

This is especially troubling given the dynamics of the Siskiyou region. The Kalmiopsis Wilderness-Siskiyou National Forest region is home to the largest mass of roadless areas along the Pacific Ocean, from the Olympics down to Baja.[130] The USFS acknowledges that salvage logging would disqualify nearly 60,000 acres from roadless designation.[131] In essence, the present roadless areas would be sectioned off and dismantled. Furthermore, the salvage efforts would mark the first time, in the lower 48 states, that cutting would occur in roadless areas designated under the Clinton administration's Roadless Rule.[132] "Two large roadless areas north and south of the Kalmiopsis Wilderness would shrink, and two smaller roadless areas would lose their roadless distinction altogether."[133] Other areas, including the LSRs and the Wild and Scenic River Corridors, have special logging restrictions which would not be applicable in a salvage timber sale.

As it currently stands, the Biscuit Fire Recovery Project is one of the largest proposed timber sales in the history of the USFS, with planned harvesting of 370 million board feet of timber covering some 20,000 acres. The salvage of dead trees is being completed under the NFP and rules established by the Northwest Forest Plan (NWFP),[134] which lists "general guidelines . . . intended to prevent negative effects . . . while permitting removal of some volume of commercially viable wood."[135]

Under the EIS for the Biscuit project, the USFS justifies the proposed logging by stating that without salvage logging and restoration planting, "[b]rush and hardwoods will aggressively occupy . . . burned areas. Increased brush and hardwood dominance will reduce the effectiveness of existing fuel breaks and fire lines."[136] The USFS goes on to note, "[t]he potential for large wildland fires will increase over time within remote portions of the fire area as fire hazard increases with brush dominance and down wood accumulations."[137]

As illustrated above, for better or for worse salvage logging is progressing under the regulations of NEPA, NFP, and the NWFP. While twelve-percent of the timber sales are currently enjoined by the courts for review, it is a far cry from the "endless litigation" that the President elaborated to in his speech promoting the HFI. To classify regions such as the Biscuit Recovery Area under the HFRA and allow "expedited environmental analysis", would undercut NEPA and the traditional roles of courts.

IV. CONCLUSION

Wildfire is a vital disturbance process in forests, upon which many species have evolved to depend for their very survival. Many forest species, such as ponderosa pine, quaking aspen and the Oregon white oak, deplete in numbers with substantial periods without fire. This is evident throughout the West, where historically frequent surface fires have been suppressed for over a century. Low-intensity fires, which once thinned the forests and replenished nutrients into the soil, have now given way to large stand-replacement fires, devastating forests, and endangering human populations.

While most agree that the forests of the United States are unhealthy and in need of restoration, the question of how best to achieve this goal is bitterly disputed. Policies, such as the 1995 Salvage Rider Act, which promote cutting of large timber in fire recovery areas, have not worked. In fact, scientific studies show these practices can do more harm than good to a recovering ecosystem. Current policies, such as the HFRA do little more to help the forests. The HFRA policy of allowing timber companies to cut large old-growth trees in exchange for small fuel reduction projects is little more than a hand-out to timber companies, justified primarily by economic growth. Furthermore, by allowing fuel reduction projects to proceed without proper analysis under NEPA and the courts, HFRA has the potential of adversely effecting forest ecosystem health, with ramifications for years to come.

It is critical that future wildfire-forest policies focus on strategic areas, such as WUI areas, where human life and property are at risk, rather than cutting in remote roadless areas and old-growth reserves. In addition, while attempting to balance more time efficient restoration projects with environmental safeguards, there are other means to expedite restoration projects without usurping current environmental regulations such as NEPA. For example, on the Biscuit Fire Project the USFS issued three separate records of decision (RODs) covering timber sales in areas designated for: (1) timber harvest, (2) old-growth forest reserves, and (3) roadless areas. This allowed areas pre-designated as timber harvest zones under the NWFP to proceed, while courts reviewed agency decisions on old-growth forest reserves and roadless areas.

Finally, as we proceed into the 21st century, we must learn from our past mistakes and allow fire to be reintroduced into the ecosystem. Current policies, such as the NFP, have recognized this importance, and have moved in the right direction. Scientific studies have shown that by combining strategic pre-fire thinning with prescribed burns, heavy fuel loads can be reduced and forests can return to healthy levels. However, more legislation and funding is needed to allow land-use agencies to proceed with the reintroduction of fire.

It is not too late to save our forests from disease and over-crowding due to over a century of fire exclusion. However, time is running out. It is time for the President and Congress to act with the interests of forest recovery in mind, rather than acting primarily on short-term economic and political benefit.

* J.D. expected May 2006, Vermont Law School; B.A. 1999, Southern Oregon University. Daniel Reesor worked as a firefighter for the United States Forest Service during the 2000 wildfire season in Oregon. The author would like to thank Marc Mihaly and Brian Mulry for their comments and editorial assistance in the completion of this article.

[1]. U.S. Forest Service, U.S. DEPT. of Agriculture, USDA Implementation of the Healthy Forests Initiative, available at: http://www. usda.gov/news/releases/2003/05/fs0165.htm.

[2]. MARGARET FULLER, FOREST FIRES: AN INTRODUCTION TO WILDLAND FIRE BEHAVIOR, MANAGEMENT, FIREFIGHTING, AND PREVENTION, 88 (1991).

[3]. STEPHEN F. ARNO & Steven Allison-Bunnell , FLAMES IN OUR FOREST: DISASTER OR RENEWAL? 52, 52 (2002).

[4]. Id.

[5]. Robert L. Beschta, Postfire Management on Forested Public Lands of the Western United States, 18 CONSERVATION BIOLOGY 957, 959 (August 2004).

[6]. FULLER, supra note 2, at 91.

[7]. ARNO & ALLISON-BUNNELL, supra note 3, at 56.

[8]. Id. at 59-60.

[9]. Id. at 52-53.

[10]. Id. at 53.

[11]. Id. at 53-54.

[12]. Id. at 57.

[13]. Id.

[14]. Id.

[15]. Id.

[16]. Id. at 55.

[17]. Id. at 56.

[18]. Id.

[19]. Id. at 58.

[20]. Id.

[21]. Id.

[22]. Fuller, supra note 2, at 91.

[23]. Id. at 86, 94.

[24]. See id. at 91.

[25]. Id.

[26]. This is the general model of regeneration of forests after a wildfire. Modern, stand-replacement fires, which burn at a much higher intensity than their historical counterparts, can actually "degrade forests by accelerating erosion, weed invasion, and loss of historical plant communities or dwindling wildlife habitat." Id. at 91-94.

[27]. William Fliges, Blackened Wilderness Green Again: '88 Yellowstone Wildfire shows Nature's Resiliency, DENVER POST, October 22, 2000, at B01.

[28]. Id.

[29]. Blaine Harden, Salvage Logging a Key Issue in Oregon: Bush Plan to Aid Forests after Wildfires Draws Criticism, WASHINGTON POST, October 15, 2004, at A04.

[30]. Id.

[31]. Id.

[32]. Dominick A. Dellasala, Beyond Smoke and Mirrors: a Synthesis of Fire Policy and Science, 18 CONSERVATION BIOLOGY 976, 983 (August 2004).

[33]. Id.

[34]. ARNO & ALLISON-BUNNELL, supra note 3, at 67.

[35]. David A. Perry, Forest Structure and Fire Susceptibility in Volcanic Landscapes of the Eastern High Cascades, Oregon, 18 CONSERVATION BIOLOGY 913, 914 (August 2004).

[36]. ARNO & ALLISON-BUNNELL, supra note 3, at 80.

[37]. Id, at 79.

[38]. Id. at 79-80.

[39]. Id. at 53.

[40]. Id. at 69.

[41]. Id. at 69.

[42]. Id. at 70.

[43]. Id. at 71.

[44]. Id. at 13.

[45]. STEPHEN J. PYNE, FIRE IN AMERICA: A CULTURAL HISTORY OF WILDLAND AND RURAL FIRE 71, 71 (1982).

[46]. ARNO & ALLISON-BUNNELL, supra note 3, at 13.

[47]. Id.

[48]. Id.

[49]. Id.

[50]. Id.

[51]. James K. Agee, Fire Management for the 21st Century, in Creating a Foresty for the 21st Century: The Science of Ecosystem Management 191,191 (Kathryn A. Kohm & Jerry F. Franklin eds., 1997).

[52]. Id.

[53]. Pyne, supra note 45, at 260.

[54]. Agee, supra note 52, at 192.

[55]. Id.

[56]. Trilby C.E. Dorn, Logging Without Laws: The 1995 Salvage Logging Rider Radically Changes Policy and the Rule of Law in the Forests, 9 TUL. ENVTL. L.J. 447, 465 (1996).

[57]. Id. at 466.

[58]. Id.

[59]. Id. at 448.

[60]. Id.

[61]. Harden, supra note 29.

[62]. Id.

[63]. Beschta, supra note 5.

[64]. See Harden, supra note 29.

[65]. Joint Counterpart Endangered Species Act Section 7 Consultant Regulations, 68 Fed. Reg. 68,254, 68,255 (Dec. 8, 2003).

[66]. Id.

[67]. See U.S. Forest Service, U.S. Dept. of Agriculture, National Fire Plan: What is the NFP?, http://www.fireplan.gov/overview/whatis.html (last visited Nov. 18, 2005).

[68]. Id.

[69]. Id.

[70]. Id.

[71]. Id.

[72]. George M. Byram, Some Principles of Combustion and Their Significance in Forest Fire Behavior, 64 FIRE MGMT. TODAY 37, 40 (Winter 2004).

[73]. Id.

[74]. U.S. Fish and Wildlife Service, Environmental Assessment for the Healthy forests Initiative Counterpart Regulations, at 2-3 (2003), available at: http://www.fws.gov/endangered/consultations/healthyforests_EA.pdf (last visited Nov. 18, 2005).

[75]. Doug MacCleery, Forest Service , U.S. Dept. of Agriculture, Healthy Forest Restoration Act of 2003: What does it do? 1 (December 11, 2003), available at: http://resourcescommittee.house.gov/issues/ffh/hfrasumdrft.pdf (last visited (Nov. 18, 2005).

[76]. CNN Archive, Bush Unveils "Healthy Forests" Plan: President Says Thinning Necessary to Reduce Fire Threat, Aug. 22, 2002, http://archives.cnn.com/2002/ALLPOLITICS/08/22/bush.timber/ (last visited Nov. 18, 2005)

[77]. Id.

[78]. Id.

[79]. Siskiyou Regional Education Project v. Goodman, 2004 WL 1737738 at 1 (D.Or.) (citing EIS 2).

[80]. Id.

[81]. Id. (citing EIS III-113)

[82]. U.S. Forest Service, U.S. DEPT. of Agriculture, Biscuit Fire Recovery Project Final Environmental Impact Statement, Appendix E at E-10 (2004), available at http://www.fs.fed.us/r6/rogue-siskiyou/biscuit-fire/feis/53-appendix-e-wildlife.pdf (last visited Nov. 18, 2005) [hereinafter Biscuit Fire FEIS].

[83]. U.S. Forest Service, U.S. DEPT. of Agriculture, Mid Illinois Watershed Analysis Fire Management 1 (2004), available at http://www.fs.fed.us/r6/siskiyou/fire.pdf (hereinafter Mid Illinois Fire Report).

[84]. Id.

[85]. Id. (quoting: Morris, William G. 1934. Forest Fires in Western Oregon and Western Washington. Oregon Historical Quarterly, 35(4): 313-339.)

[86]. Biscuit Fire FEIS, supra note 82, ch. III at 24, available at http://www.fs.fed.us/r6/rogue-siskiyou/biscuit-fire/feis/02-abstract.pdf (last visited Nov. 18, 2005)

[87]. Mid Illinois Fire Report, supra note 83, at 1.

[88]. Id.

[89]. Dellasala, supra note 32, at 977.

[90]. Biscuit Fire FEIS, supra note 82, at E10.

[91]. Goodman, 2004 WL 1737738 (D.Or.), at 1. (quoting EIS 2).

[92]. Brant Short, "Physicians of the Forest" A Rhetorical Critique of the Bush Healthy Forest Initiative, 19 ELEC. GREEN J. (Dec. 2003).

[93]. Hearings on Timber Salvage Before the House Salvage Timber and Forest Health Task Force, 104th Cong. (Dec. 19, 1995) (Statement of Rep. Elizabeth Furse, D. Or.), 1995 WL 752101 (F.D.C.H.)

[94]. Goodman, 2004 WL 1737738 (D. Or.) at 1.

[95]. Bush Administration Smokescreen Obscures Facts on the Biscuit Timber Sale: Congress Should Oppose Sen. Smith's Logging Rider, Sierra Club, http://oregon.sierraclub.org/conserve/biscuit/Bush_Smokescreen.pdf (last visited Nov. 18, 2005).

[96]. Goodman, 2004 WL1737738 (D. Or.) at 1.

[97]. Id.

[98]. Sharon Buccino, NEPA under Assault: Congressional and Administrative Proposals would Weaken Environmental Review and Public Participation, 12 N.Y.U. Envtl. L.J. 50, 50 (2003).

[99]. See 42 U.S.C. 4332(C).

[100]. FIRESTONE, DAVID B., ENVIRONMENTAL LAW FOR NON-LAWYERS, 44 (SoRo Press, 2004).

[101]. Id. (citing 40 C.F.R. § 1501.4).

[102]. Buccino, supra note 98, at 53.

[103]. See 42 U.S.C. 4332 (C).

[104]. See Id.

[105]. Buccino, supra note 98 at 53.

[106]. Goodman, 2004 WL1737738 (D. Or.) at 1.

[107]. Biscuit Fire FEIS, supra note 82, Executive Summary, at C-2.

[108]. Id.

[109]. Id. at C-3.

[110]. MacCleery, supra note 75, at 6 (emphasis added).

[111]. See, e.g., 40 C.F.R. § 1502.14.

[112]. HFRA defines an at-risk community as one:

(A) That is comprised of: (i) an interface community as defined in the notice entitled ÔWildland Urban Interface Communities Within the Vicinity of Federal Lands That Are at High Risk From Wildfire' . . . ; or (ii) a group of homes and other structures with basic infrastructure and services (such as utilities and collectively maintained transportation routes) within or adjacent to Federal land;

(B) In which conditions are conducive to a large-scale wildland fire disturbance event; and

[113]. MacCleery, supra note 75, at 6.

[114]. Forest Conservation Archives, Oregon: Biscuit Fire Logging Plan Sparks Lawsuits, July 15, 2004, http://forests.org/articles/reader.asp?linkid=33590 (last visited Nov. 18, 2005) or WLNR 17946187.

[115]. Associated Press, More Biscuit Fire Timber Parcels Auctioned Off, The Oregonian, August 3, 2004, available at: http://www.oregonlive.com. (hereinafter Biscuit Fire Auction Article).

[116]. Scott Maben, Biscuit Fire: Log It or Leave It? The Register-Guard, November 30, 2003.

[117]. See HFRA, 117 Stat 1887, § 105(c)(1)(A)-(B).

[118]. HFRA, 117 Stat 1887, § 105(c)(2).

[119]. The Healthy Forests Restoration Act: Hearing on H.R. 1904 Before the Senate Comm. On Agriculture and Natural Resources, (statement of Patrick Parenteau, Professor of Law, Vermont Law School, commenting on: HFRA, 117 Stat 1887, § 105(c)(3(A)-(B)).

[120]. Id. (commenting on: HFRA 117 Stat 1887, § 106(a)-(b)).

[121]. Id. (commenting on: HFRA 117 Stat 1887, § 106(c)).

[122]. Id (commenting on: HFRA 117 Stat 1887, § 106(a)-(c) & 106(c)(3).

[123]. Id. at 106(E)(2)(B)

[124]. The HFRA defines Wildland-Urban Interface as:

(A) an area within or adjacent to an at-risk community that is identified in recommendations to the Secretary in a community wildfire protection plan; or

(B) in the case of any area for which a community wildfire protection plan is not in effect—

(D) an area within 1 ½ miles of the boundary of an at-risk community, including land that: (I) has a sustained steep slope that creates the potential for wildfire behavior endangering the at-risk community; (II) has a geographic feature that aids in creating an effective fire break, such as a road or ridge top; or (III) is in condition class 3, as documented by the Secretary in the project-specific environmental analysis; and

(E) an area that is adjacent to an evacuation route for an at-risk community that the Secretary determines, in cooperation with the at-risk community, requires hazardous fuel reduction to provide safer evacuation from the at-risk community. HFRA 117 Stat 1887.

[125]. See HFRA, 117 Stat 1887, Title I § 102(c) and (d).

[126]. HFRA, 117 Stat 1887, § 102(a).

[127]. Class 2 lands must be within fire regimes I, II, or III, that are in such proximity to a municipal watershed or its feeder streams that a significant risk exists that a wildfire event will have adverse effects on the water quality of the municipal water supply or the maintenance of the system. HFRA, 117 Stat 1887, § 102(a)(2) and (3). (note: for a discussion of fire regimes and condition classes see: http://fire.org/frcc/FrccDefinitionsFinal.pdf

[128]. This subsection gives the provisions of HFRA national scope since it is applicable to areas not subject to wildfire risk. MacCleery, supra note 75.

[129]. See HFRA 117 Stat 1887 § 102(a)(1)-(5).

[130]. Maben, supra note 116.

[131]. Id.

[132]. Battle Lines Being Drawn around Biscuit Fire Salvage, The Oregonian, Michael Milstein, July 06, 2004. available at: http://www.oregonlive.com

[133]. Maben, supra note 116.

[134]. The NWFP was an effort to reconcile the requirements of the ESA with the needs of the timber industry. In 1993, President Clinton held a Forest Conference in Portland, Oregon, to deal with controversies over forest management and protection of species associated with old-growth forest in the Pacific Northwest and northern California. U.S. Forest Service, U.S. DEPT. of Agriculture, 2004 Biscuit Post-Fire Assessment, Biscuit Fire Recovery Project, Siskiyou National Forest, Grants Pass, Oregon.

[135]. Goodman, 2004 WL1737738 (D. Or.) at5

[136]. U.S. Forest Service, U.S. DEPT. of Agriculture, 2004 Biscuit Post-Fire Assessment, Biscuit Fire Recovery Project, Siskiyou National Forest, Grants Pass, Oregon, 81(2004).

[137]. Id.