Environmental Law Institute: NAFSR - HFRA Paper 29 Jan. 2004

HEALTHY FOREST RESTORATION ACT

Panel Discussion

For the Environmental Law Institute

1/29/04

Richard J. Pfilf

Executive Director

National Association of Forest Service Retirees

HEALTHY FOREST RESTORATION ACT

Thank you for inviting me to discuss the Healthy Forest Restoration Act. The National Association of Forest Service Retirees believes the HFRA is an essential and overdue piece of legislation that can help diminish the ravishing effects of wildfire experienced in the early part of the 20th Century and in the first few years of the 21st.

First, let me set the stage with some pertinent, but often-neglected history.

(Fig.1)

Notice, as indicated by tree ring densities in the first chart, that the much of the 20th Century was relatively warm, 1936 being the warmest on record. There is a strong correlation between climatic fluctuations in the first chart and the fire severity shown in the second chart, with the “dust bowl” of the ‘30s coinciding with almost 40 million forested acres burned annually.

We lived in a fool’s paradise, from the middle 50s up to about 1998, believing that we could ignore fuel conditions, regardless of climatic variability, and still successfully manage the effects of wildfire. What we overlooked was the fact that these years were cooler and wetter than normal, which gave us fewer and smaller fires. The climate seems to have heated and dried up the last few years, resulting in more and bigger fires, even with aggressive initial attack and sophisticated equipment and methods.

We now think that a fire year of 6 or 7 million acres is bad. Fires in 2003 burned less than 4 million acres, but that year the fall fires in Southern California burned 750,000 acres, 4,000 homes and took 22 lives. How would we like a fire year with 20 to 30 million burned acres and 200 lives lost? This has happened and could happen again. The west is in the grip of a long drought, the climate seems to be warming and burned acres are increasing. The prudent path is to prepare the forests for the eventuality of increasing temperatures and drought.

We want to be clear in our belief that this Act is a positive step in the right direction. But we would be remiss we didn’t point out that it doesn’t go far enough to address fully the forest health problems in the country.

The Act treats the forest as a snapshot in time - of current conditions - when in reality our forests continue to increase biomass at a rate modified by fluctuating climate and increasing atmospheric carbon dioxide. Today’s legislation, policy and planning must be responsive to tomorrow’s forest. Tomorrow’s forest seems to be heading toward greater fuel accumulations, as well as into a warmer climate regime and greater urban impingement.

Fig. 2

At present forest growth continues greatly to exceed removals and mortality. (Fig. 2) This growth means more fuel loading, and the Act, focusing as it does on small material, isn’t designed to balance out growth and removals. To illustrate the problem, as late as 1996 forest growth nationally was 1.5 times removals, 2.0 times for Pacific Coast forests and a phenomenal 4.7 times in the Rocky Mountain region, the location of many of our fire-prone forests.

Crowding in our forests means greater competition for sunlight, nutrients and water, diminished forest health, and greater susceptibility to insects, disease and wildfire. Prudence would have us reduce stand densities significantly and modify stand age classes across the country for healthy, sustainable forests.

Starting with Sections 105 and 106 because they seem to be a point of great controversy, the rest of my discussion will focus Section by Section on the Act – where it’s good and where it could be improved.

Section 105,Special Administrative Review,

Provides expedited pre-decisional administrative review of hazardous fuels treatment projects on federal lands.
Requires participation during the scoping or public comment period to participate in the administrative review process
Discourages (but doesn’t eliminate) frivolous appeals
With exceptions, requires exhausting administrative processes before bringing civil suit.

This section received a lot of attention because it purportedly does two controversial things:

It’s not needed as only a small number of cases are appealed anyway
It will preclude “citizens’ participation in decisions involving the forests

Let’s discuss the first objection.

“Appeals are few, relative to the number of decisions”

People often cite a GAO report that, they say, held that 95% of fuels projects were not appealed. These statements reflect poor staff work, disingenuousness, or both. The GAO statistics included many areas of fuels reduction projects that are categorically excluded (CEs) under the National Environmental Policy Act (NEPA), and therefore not appealable. Examples are areas open to personal fuelwood gathering by local residents

The GAO study involved all 155 national forests and collected data on fuels reduction decisions issued in FY 2001 and 2002 (the first two years of the National Fire Plan).

The study reported:

A total of 762 decisions involving fuels reduction activities, on 4.7 million acres.

Of these, 457 decisions (or 60%), covering 3 million acres, were not appealable. They were covered by CEs.

305 appealable decisions, covering 1.7 million acres.

Of the decisions that were appealable, 180 decisions, or 59 percent, were actually appealed.
63 of those 180 decisions had more than one appeal (totaling at least 267 appeals).
Many areas had a much higher percentage of appeals. For example, in Region 1 (North Idaho and Montana) 95 percent of prescribed burn projects and 93 percent of mechanical treatment projects were appealed.
52 percent of all appealable fuels treatment projects in the wildland/urban interface, where there is supposed to be social consensus in favor of treatment, were appealed.
Most of the appeals (81%) were found to be without merit

The high probability of appeals results in excessive useless effort and cost in order to “appeal-proof” a decision, and often the loss of a year or more before treatment can begin. The vast majority without merit illustrates the frivolous nature of most appeals.

Section 106, Judicial Review,outlines procedures in U.S. District Courts

Judicial review must be in the same District as the authorized project

(Precludes venue and judge “shopping”)

Encourages expeditious proceedings
Limits injunctions to 60 days, with provisions for renewal
Requires courts to balance the short- and long-term effects of undertaking, or not undertaking, a project

Twenty-three, or 3%, of all decisions were litigated.

Proponents of the status quo argue that since only 23 of Forest Service fuels treatment projects are litigated there is no real problem. This ignores significant ramifications:

The largest projects are being litigated. For example, the Rodeo-Chediski recovery project, now in litigation, is not even in GAO’s database because it was a 2003 decision. Virtually all large 2002 post-fire recovery projects (McNally, Star Fire, Biscuit, etc.) are being, or very likely will be, litigated. The big ones are almost always litigated. These have the most serious implication for restoring forest health.

Now the second objection:

“It will preclude ‘citizens participation’ in decisions involving the forests.”

The so-called ”citizens participation” is generally not by citizens at all, but by the major organizations operating with funds from charitable trusts. Seven groups appeared as appellants 20 or more times (Alliance for Wild Rockies, Ecology Center, Forest Conservation Council, Lands Council, National Forest Protection Alliance, Oregon Natural Resources Council, and the Sierra Club). The act has a clear path for bona fide citizens to interact and to be heard in the decision process.

The fact is that the Act provides significant opportunity for citizen participation, both administrative and judicial. Sections, 104, 105, and 106 all have positive avenues for meaningful public involvement in the decision process, while precluding some of the obstructionist practices commonly used to stop beneficial forest management programs.

We think these modifications in the Act are necessary corrections to an unbalanced situation. A question I heard in testimony given at the Senate hearings on H.R. 1904: “What do you want to protect more, the current judicial process or the forest?”

Important as they are to the issue of forest health generally, we must understand that these provisions apply only to projects authorized under the Act. The infamous and misnamed “Appeal Reform Act” will still apply to all other attempts at restoring forest health. Only the Forest Service, of all government agencies, is so burdened.

Section 101. Definitions

Historic Fire Regimes: The definitions, and the Act itself do not deal with Historic Fire Regimes IV and V. These regimes are areas where the fire return interval is 35 to 200 or more years, and the severity is of the “stand replacement” variety, when all trees are essentially killed and the reforestation process starts from scratch. The law ignores them -- 40 million acres in the high risk category -- and therefore lacks a comprehensive look at restoration.

We note that the law follows the practice of a preoccupation with the ponderosa pine type and other dry forest types, such as eastside Douglas-fir. The omission amounts to 40 million acres of high-risk (Condition Class 3) and 49 million acres of moderate risk (Condition Class 2) forests such as white pine, lodgepole pine and Westside Douglas-fir. Much of Condition Class 2 will soon be in the high risk category. Many of the most damaging fires in the Country’s history, in terms of acreage and lives lost, occurred in Fire Regimes IV and V (Miramichi, Peshtigo, Michigan, Hinkley, Great Idaho, Tillamook, etc.). Ignoring these Regimes ignores unhealthful conditions in immense tracts of forest land and poses grave danger to environmental and human values.

Section 102. Authorized Hazardous Fuel Reduction Projects

Authorized Projects: This item restricts projects to Fires Regimes I, II, and III (as mentioned above).

Included Lands:

Wildland/Urban Interface (WUI)
At-risk municipal watersheds in Condition Classes 2 and 3
Certain lands important for wildlife and threatened and endangered species
Certain areas of windthrow and insect and disease epidemics

Acreage Limitation: The Act authorizes treatment up to 20 million acres of federal land, but there are 181 million acres classified as “high risk”. The Forest Service Chief recently stated that there are 73 million acres of national forests and nearby communities threatened by wildfire.

Twenty million acres is a good start, but there must be a follow-up action if we are going to deal with high-risk conditions, regardless of location.

Project Requirements: The law requires “retaining the large trees contributing to old growth structure.” We can visualize the folly of this constraint if we just call to mind the situation in the fall of 2003 at Lake Arrowhead and Big Bear Lake in southern California. For years a reluctance to remove old overstory trees, before bark beetles reached epidemic proportions, created a situation were the whole forest was lost to fire. Prudent prevention measures would have provided for a variety of age classes making the area less disaster-prone. There are timber stands all over the country where the components of deteriorated forest health are the largest trees that should be removed.

Agencies must “fully maintain or contribute toward the restoration of old growth conditions . . . “. This has a basis in the misconception that trees and stands of trees can live forever in a static old growth condition. We will not be able to stop the destruction of entire stands by fire. Many of our forest types are disturbance-adapted that exist under even-aged conditions. The Act seems to ignore them.

Section 103: Prioritization

Encourages community wildfire protection planning -- which we heartily support, but wonder how many of the communities at risk have the resources to prepare and carry out a plan. We believe there will be some big gaps.
Requires at lease 50% of funds to be spent in WUIs

Recognizing the need for legislators to define limits to their actions, in this case the 50% appears to be strictly arbitrary and should be loosened. Some of the big 2003 fires in southern California came roaring out of the forest interior, ran right through the Wildland/Urban interface (WUI) into the towns and destroyed hundreds of urban homes.

Section 104: Environmental Analysis – We endorse these measures.

Simplifies the environmental analysis activity while still providing consideration of an array of alternatives adequate for the decision.
Encourages collaboration among various parties
Provides for meaningful public participation and encourages collaboration between federal agencies and local communities in the preparation of community-based fuels treatment plans, including,
Public notices
Conducting public meetings
Providing for comments when preparing an environmental analysis or EIS

Section 108. Authorization of Appropriations

$760,000,000 per year is authorized. This sounds like a lot of money, and it is, but let’s

look at what it could mean.

Assuming authorized funding is appropriated (which is highly unlikely), and
50%, or $380,000,000 must be spent inside WUIs
Est. $1,000/ac. conservative restoration cost in WUIs
380,000 acres per year may be treated, if agencies are able to execute

Another way of looking at it

Assuming authorized funding is appropriated (which is highly unlikely), and
50%, or $380,000,000 may be spent outside WUIs
Est. $750/ac. conservative restoration cost outside of WUIs,
506,667 acres per hear may be treated, if agencies are able to execute

If a total of 886,667 acres per year could be treated for $760,000,000, and only 15 percent of

181,000,000 acres now in high risk condition will be covered by the Act, then it would take over 30 years to complete restoration, assuming no inflow to Condition Class 3 from Condition Class 2.

Obviously, in the meantime, even at this unrealistically fast rate, we’re going to burn up a lot of forests and communities.

While we’re on the subject of funding, we must be realistic about how to pay for forest restoration. Authorization is not enough because it likely won’t be actually appropriated. Even if it all were, it still would come short of doing the job, as illustrated in the example above. It just makes good sense for products from the forest to help pay for forest restoration. Title II will help to focus on meeting the financial costs of restoration.

Title II – BIOMAS, provides, and authorizes funds for research to develop tools to facilitate utilization of material from stand improvements. This is a very progressive program that should be vigorously carried out.

Title III – WATERSHED FORESTRY ASSISTANCE

NAFSR recognizes the crucial relationship between quality watersheds and healthy forests and supports the measures in the Act.

Title IV – INSECT INFESTATIONS AND RELATED DISEASES

We are encouraged by the national attention this Act gives to the forest insect problems. Section 404, however, inexplicably excludes efforts to assess infestations in wilderness and similar areas. Beetles don’t recognize wilderness boundaries. Given the chance, they will chew their way right out of the wilderness onto adjacent lands, and, lacking information, the adjacent landowner will be caught defenseless.

Title V – HEALTHY FORESTS RESERVE PROGRAM

We support this program, which provides for grants for various beneficial activities.

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Acknowledgements:

Fig. 1, Chart 1 –– from Briffa, K. R. and P. D. Jones, July 1992, Journal of Climate, Vol. 5, No. 7

Fig. 1, Chart 2 –– from National Interagency Fire Center

Fig. 2, U .S. Forest Service “U .S. Forest Facts and Historical Trends,” April 2001