Federal Lands Litigation – update through May 31, 2024

To start your week (and month) off right …

FOREST SERVICE

Court decision in Murray v. United States (Court of Claims)

On June 5, 2023, the Court of Federal Claims dismissed this breach of contract claim involving an authorization by the Umatilla National Forest for snowmobile use in the parking lot of the Spout Springs ski area (the plaintiffs). The record indicated that “material interference” by snowmobiling with the contract began at least by 2013, so the lawsuit was not filed within the statute of limitations, and the case was dismissed.  (This case was introduced here, and someone inquired about the results, so I included it in this update.)

New lawsuit

On May 14, the Alliance for the Wild Rockies filed a lawsuit in U.S. District Court for the Eastern District of Washington seeking to stop the Sxwutn-Kaniksu Connections Trail Project, which calls for logging and burning on more than 36,000 acres over 20 years on the Colville National Forest.   The Forest partnered with the Kalispel Tribe of Indians, whose reservation adjoins the Forest.   The Forest Service has offered three timber sales that are part of the project, according to the complaint.  The plaintiff’s problems with the Project are described here.  We discussed this here.

Court decision in Patagonia Area Resource Alliance v. U. S. Forest Service (9th Cir.)

On May 15, the appeals court affirmed the district court’s denial of a preliminary injunction regarding two mines on the Coronado National Forest.  The court found that plaintiffs were unlikely to succeed on the merits of claims related to the cumulative effects of the Sunnyside and Flux Canyon projects on the Mexican spotted owl and groundwater.

New lawsuit:  Standing Trees v. U. S. Forest Service (D. New Hampshire)

On May 16, Standing Trees filed a lawsuit asking the court to halt the Tarleton and Peabody West integrated resource projects on the White Mountain National Forest.  The plaintiff alleges that the Forest Service failed to take the hard look at alternatives and effects as required by NEPA before approving nearly 3,000 acres of commercial logging based on an EA, and that the projects violated the forest plan.  Plaintiffs are concerned about  water quality, carbon storage, biodiversity, endangered species, mature and old growth forests, and flood resiliency.  (Here is additional background.)

  • Sawtooth NF ditch diversion ownership

Court decision in Hansen v. U.S.A. (D. Idaho)

Court decision in Mizer v. U.S.A (D. Idaho)

On May 20, the district court dismissed two cases with claims of ditch easement ownership by private parties who sought to prevent the Forest Service from subjecting the ditches on national forest lands to Endangered Species Act requirements.

Court decision in Friends of the Inyo v. U. S. Forest Service (9th Cir.)

On May 21, the circuit court reversed a district court holding and enjoined exploratory drilling on the Inyo National Forest.  The court found, based on Forest Service mineral regulations, that associated monitoring and restoration was part of the project.  Since that would continue for more than one year, a categorical exclusion for drilling projects was not available.  Neither was a CE that would have covered the restoration component, but not the drilling.  The court ultimately found that the Forest Service regulation establishing categorical exclusions “unambiguously prohibits combining CEs to approve a proposed action where no single CE could cover the proposed action alone.”  Plaintiffs were concerned about the bi-state sage-grouse and water for the endangered Owens tui chub. (The article includes a link to the opinion, which we also discussed here.)

Court transfer in Center for Biological Diversity v. U. S. Forest Service (now S.D. West Virginia)

On May 21, the federal district court for the District of Columbia granted the government’s request to transfer this case (introduced here) to the Southern District of West Virginia, holding that, “The final factor—the local interest in deciding local controversies at home—is ‘perhaps [the] most important factor’ (citing another case).  Moreover, “Just because a case “involves federal laws and could result in a decision with ‘national implications,’ these implications do not outweigh the significant interest of [local] residents” (citing another case).  (This is why we don’t see many national forest decisions litigated in the D. C. court.)

New lawsuit

The Center for Biological Diversity has filed a second lawsuit against the Tonto National Forest’s management of the Salt River herd of wild horses.  The first (discussed here) was dismissed with the expectation that it would be refiled after an intergovernmental agreement was renewed.

Notice of Intent to Sue under ESA

The Center for Biological Diversity has notified the Forest Service and Fish and Wildlife Service of its intent to sue them regarding (1) U.S. Fish and Wildlife Service’s December 29, 2023, Biological Opinion for the Reinitiation for Ongoing Livestock Management on the Sacramento and Dry Canyon Allotments, and (2) U.S. Forest Service’s reliance on this Biological Opinion on the Lincoln National Forest.  Riparian areas in the Sacramento Mountains are critical habitat for the endangered New Mexico meadow jumping mouse and Mexican spotted owl.  This is the third such notice involving these areas.

BLM

New lawsuit:  Western Energy Alliance v. Haaland (D. Wyoming)

On May 15, six oil and gas associations sued to overturn the BLM’s regulation that would raise royalty rates and toughen protection and cleanup requirements on public land.  They claim procedural violations in adopting the regulation and substantive violation of the Federal Land Management and Policy Act’s “obligations” to promote oil and gas development.   Additional background is here.

Post-litigation agency decision (and lawsuit promised)

On May 16, the BLM issued its final supplemental environmental impact statement and proposed amendment to its Buffalo Field Office land use plan, selecting a “no future coal leasing alternative” for the Powder River Basin in Wyoming and Montana.  The BLM was required by a 2022 court order to reevaluate its land use plan after local conservation groups successfully argued it had not fully considered environmental, climate and human health impacts. The area is the largest coal producer in the U. S., and existing leases would continue for decades.

Magistrate’s recommendation in Klamath-Siskiyou Wildlands Center v. U. S. Bureau of Land Management (D. Oregon)

On May 24, the magistrate judge found that the BLM should have prepared an EIS for the “Integrated Vegetation Management for Resilient Land Program” (875,290 acres in southwestern Oregon). This was in part the result of the uncertainty about effects associated with the flexibility incorporated into the decision.

The judge also found that the “commercial logging portions” of the IVM Program violated FLPMA because they are inconsistent with the governing resource management plan.  The plan includes a standard that directs the BLM to apply logging treatments within late-successional reserves only if they do not preclude or delay the development of northern spotted owl nesting or roosting habitat by 20 years or more.  The BLM had tried to claim that the standard didn’t apply because this project promoted forest health.  The magistrate found that it “clearly applies to any proposed actions in the LSRs, irrespective of BLM’s stated purpose.”

The immediate effect is on the 830-acre Late Mungers commercial thinning project.  The scope of relief is to be determined later.   (The article includes a link to the magistrate’s findings and recommendations, which we also discussed here.)

ENDANGERED SPECIES

On May 29, the U. S. Fish and Wildlife Service designated critical habitat for the coastal distinct population segment of Pacific marten.  It includes federal lands in southwestern Oregon and northwestern California, but land owned by timber company Green Diamond Resources was ultimately excluded from the designation in exchange for the company’s agreement to perform monitoring and create a reserve. Yurok and Karuk tribal land was also excluded.  This follows a lawsuit from the Center for Biological Diversity over delaying the decision.  The article includes a link to the Federal Register notice.

OTHER

Court decision by the Oregon Court of Appeals

The state appeals court overturned a decision by the Oregon Land Use Board of Appeals that had approved a destination resort (on private land).  The court found that Deschutes County officials did not properly take into account the effects of water use on off-reservation treaty fishing rights of several Native American tribes.

New lawsuit

On May 14, WildEarth Guardians and Western Watersheds Project filed a complaint in the Montana federal district court focusing on livestock grazing permitted by the U. S. Fish and Wildlife Service in Red Rock Lakes National Wildlife Refuge in Montana.  The complaint alleges that the FWS “continues to renew commercial grazing permits that rely on a nearly three-decade-old environmental analysis.”  Concerns include effects on grizzly bears and Arctic grayling.  (A lawsuit against the FWS decision to not list the grayling as threatened or endangered is pending – described here.)

New lawsuit:  Defenders of Wildlife v. U. S. Fish and Wildlife Service (E.D. North Carolina)

On May 20, Defenders of Wildlife and the Sierra Club challenged a decision by the U. S. Fish and Wildlife Service to allow an experimental algaecide treatment using a toxic-to-birds product at Mattamuskeet National Wildlife Refuge in North Carolina.  The complaint alleges a violation of the National Wildlife Refuge System Improvement Act and several violations of NEPA.  It also included several claims that the promulgation of the 2020 (Trump Administration) changes to the CEQ NEPA regulations (which were in effect when this decision was made, but have since been replaced) violated the APA.

SWERI’s Independent Analysis of Managed Wildfire

This map demonstrates the fireline effectiveness of the 2022 Midnight Fire. The coral color is the 2022 Midnight Fire perimeter;brown is the 2019 Francisquito managed fire perimeter; and red is the 2018 Alamosa prescribed fire perimeter. The analysis shows that when the Midnight Fire ran into the previous burn areas, they contributed to a high degree of suppression effectiveness.

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A helpful TSW reader has sent me more information that addresses some of the questions we’ve raised directly, rather than floundering around, as I have been doing.  So a big shout-out to SWERI for this paper ! As a person who supports MF, is a big pre-planning and POD fan,  (gasp for me) even supports putting fire stuff in forest plans (making forest plans more useful) and agrees with the approach in this paper, but also wants to help all of us understand each other better, I made a few comments as if I were an MF skeptic living in a potentially-impacted community.

Analysis of managed wildfires demonstrates that destructive outcomes are rare. The 2021 Tamarack Fire in California was a lightning-caused fire for which the initial decision was not to engage directly due to firefighter safety concerns, not as a managed wildfire, and which resulted in structure loss and prompted scrutiny of management responses to natural ignitions. Recent research demonstrates that from 2009 to 2020, there were 32 fires with characteristics like the Tamarack Fire, of which only 6 were managed wildfires. Most structure losses from wildfire are due to human ignitions on private lands that spread into adjacent areas under extreme weather conditions. Managed wildfires that result in negative outcomes are rare, yet fire managers are incentivized to suppress natural ignitions to minimize short-term risk rather than use them under favorable conditions to maximize long-term risk reduction.

So this paper says that fire managers are not sufficiently incentivized to do MF.  Other folks have told me the same thing. At the same time, some people are worried that the FS is over-incentivized to do it based on  fuel reduction targets. I suppose both can be true in different places at different times? How can we (or can we) reconcile these two observations or points of view?

Current policy, the 2009 Guidance for Implementation of Federal Wildland Fire Management Policy, is effective and allows for using managed wildfire when an existing, approved land, resource, or fire management plan is in place,

I’d like more details on what any plans should contain.. any old forest plan might not do it.  This paper, of course, is not the place to go into details.  Perhaps that is to be found somewhere else? I’d go so far as to say “put the fire part of plans in an easily accessible place on the Forest website.” Perhaps forest plans nowadays do have their material sorted by topic (say fire or grazing) as well as by plan component (desired conditions, standards, etc.)?

but myriad factors can frustrate its use. 1) There is inconsistent terminology and multiple terms for “managed wildfire.” The approach can entail engaging fire at locations deemed safer and more effective for suppression or engaging fire to achieve natural resource or risk management objectives after analyzing risk to firefighters and local landscape values. Inconsistent terminology creates confusion when current policy (i.e.,2009 Guidance) allows for all fires to be managed for different objectives and strategies depending on the context. 2) Operational concerns also pose challenges. Fire managers may worry there are insufficient resources,

This seems like a legitimate concern to me, especially projecting into unknown future time periods with unknown numbers of starts elsewhere.

leadership backing, and political or public support for implementing managed wildfire. 3) Risk aversion and uncertainty, when combined with a high degree of autonomy in local decision making and the perception that managed wildfire is risky, have resulted in hesitance to use managed wildfire approaches despite current policy.
In many cases, managed wildfire is a lower risk option when considering its potential to reduce future fire risk,

I think this could be one of the understanding gaps, how different folks talk about risk. It seems to me (and to the federal budget) that there are other options to reduce future fire risk, aka prescribed fire and/or mechanical treatment plus prescribed fire. At least everyone has been doing these projects assiduously saying they reduce wildfire risk.  But maybe there won’t be funding. We also don’t know if some equally or better conditions for MF will occur next year, or some other year, before the future WF risk.  And of course in the wrong conditions a WF could be worse.  Predicting the future is tough for anyone, even with super-sophisticated models.

but when faced with a risky decision, decision-makers often take the risk-averse option of fully suppressing a fire. Rather than sharing risk across boundaries, fire managers who do opt to take a managed wildfire approach are often left carrying the burden of potential bad outcomes, which are uncommon.

Hmm. Some would say people who lose their homes and businesses or get killed or injured and, say FEMA (aka taxpayers) are “left carrying the burden.”

Managed wildfire often comes down to the willingness of individuals to take on the risk because the 2009 Guidance has not been codified into law. 4) Building public and political understanding of, and support for, managed wildfire strategies, especially in the pre-season before a fire starts, can facilitate its use. 5) Existing performance metrics and financial structures may also disincentivize using managed wildfire, and regional and local planning may be outdated or not explicitly demarcate alternative fire management strategies for different land or resource objectives, which can lead to additional confusion in implementing policy on the ground.

I don’t think MF is a big thing in my county planning (partly forested, partly FS). Maybe what they meant is that all communities have not decided MF is a good idea, and hence it isn’t in plans?

There are several facilitating factors that lead to decisions to use managed wildfire. 1) Discussions of fire management options in the pre-season (e.g., creating Potential Operational Delineations (PODs) of the most effective containment opportunities and pairing those with quantitative wildfire risk assessments) can help identify and document strategic response zones where managed wildfire may prove beneficial under the right conditions. 2) The characteristics of individuals, incident management teams, or organizations with experience using risk-informed decision support systems (DSSs) and the characteristics of the DSSs themselves can facilitate decision making to allow for managed wildfire use. 3) Many other facilitators such as existing collaborative relationships, personal ethic to use managed wildfire, favorable conditions, reduced exposure, minimal values at risk, agency support, cost savings, and many others also encourage use of this approach.

I would use “support” and not “ethic.” Yes I can be pedantic, without being an actual pedant.
“ethic- a set of moral principles, especially ones relating to or affirming a specified group, field, or form of conduct.”

Recommendations

Consistent terminology that better aligns with the existing 2009 Guidance should be identified, and the 2009 Guidance should be fully used. The 2009 Guidance already provides the appropriate sophistication and flexibility to respond to unplanned ignitions, both human and natural, but is not fully realized due to the barriers previously described. Once common language that adequately incorporates managed wildfire into the broader context of all wildfire management has been identified and vetted, the National Wildland Fire Coordinating Group Incident Status Summary database (ICS 209) categories for documenting and tracking wildfire should be reviewed and potentially updated to reflect this terminology. New terminology will allow for more realistic tracking, communication, and articulation of incident decision-making that highlights that wildfire response is a combination of strategy actions.

Duh. I still like FWB, for fire with benefits…

Framing should emphasize that all fires are addressed with a risk-informed, strategic approach. Expanding managed wildfire use has long-term health, safety, and risk reduction benefits. More awareness, socialization, outreach on the benefits, and communication of the complexities of fire decision making are necessary to facilitate the use of managed wildfire. Indigenous perspectives and cultural burning must be part of the conversation. Learning from success stories is invaluable for demonstrating the potential of managed wildfire to reduce future fire risk. Training programs must adapt to accommodate more nuanced framing and communication of approaches.

Leadership must share risk with fire managers and provide support, resources, and incentives for using managed wildfire. Fire managers need commitment and support to use managed wildfire from all levels of leadership and the necessary resources and incentives. Risk sharing and co-managing risk at all levels will help reduce risk aversion for individual fire managers who bear the greatest costs for the few bad outcomes. Leadership should acknowledge the reality of risk reduction, not elimination, in fire response. Leadership direction to use DSSs at all levels is also critical, otherwise using these tools often comes down to an individual’s willingness, rather than as a standard procedure.

Again, I think using “risk sharing” this way is confusing to me. Co-managing with whom exactly?- it sounds mostly internal.

The use of risk-informed, science-based DSSs before and during incidents is critical to increasing the use of managed wildfire, and these DSSs should be better integrated into land, resource, and fire management plans to fully realize the 2009 Guidance. More agile and risk-informed DSSs that deploy resources during windows of opportunity, prioritize resources in areas that have the highest probability of success, are identified through spatial pre-season fire planning, and are incorporated into land, resource, and fire management plans are critical to success. PODs are a collaborative, strategic spatial fire planning framework and DSS that pair local knowledge and expertise with advanced spatial analytics to pre-identify areas on the landscape where there is a high likelihood of containing a fire (e.g., roads, rivers, ridges). The collaborative development of PODs in the pre-season with diverse partners and across jurisdictions11 can inform fuel treatments to improve POD boundaries using strategic fuel breaks and/or as anchors for prescribed fire implementation.12 During fires, it is important to use pre-identified information and strategic approaches to prioritize resources in areas that are most likely to support safe and effective response. Using pre-identified control features that have been vetted by fire management professionals and partners can hasten situational awareness, conserve scarce resources, reduce future fire risk of high-severity wildfire, and incentivize line officers and incoming Incident Management Teams to consider indirect, “big box” strategies (i.e., managed wildfire) when it is safe and effective. Utilizing the Risk Management Assistance (RMA) Dashboard and engaging in the Incident Strategic Alignment Process (ISAP) will facilitate risk-informed decisions and the development of a spatial and temporal strategy using the best available science throughout an

Point being, I agree with all the ideas in here and still have a few questions about the way the info is conveyed.

Incident Strategic Alignment Process And Wildfire Decisions

We’ve been talking about the factors that suppression folks take into account when they talk about what I’ll call for now “wildfire with benefits” since I’m not sure that everyone agrees on the appropriate expression. Mike mentioned checklists and WFDSS (pronounced Wiffids, I think, please correct), and there is also the Incident Strategic Alignment Process. There’s a story map here about ISAP that was a bit buried in the previous TSW post about the San Juan. There are some good videos in the story map about how fire managers make decisions.

Folks I’ve spoken with say that they do fire pre-planning, and they do involve the public. There also seems to be more concern on some forests than on other forests, which may relate to a more generic trust or distrust of forest leadership. I’m wondering whether this is a typical Forest Service decentralization thing, that different places have different ways of doing things, some relationships are better than others, and as Mike says “there’s no “one size fits all.” Forests may well diverge in the way they do fire planning, the extent to which it is covered in the forest plan and so on. Do fire teams also diverge in the way they approach things? It could get really confusing to the public. Then there’s communication between the teams and forest leadership, and among teams, forest leadership and communities. And communities may view risk differently than the FS.

And yet forests like the San Juan have a track record of excellence. So it can be done. How to make that happen everywhere?

Maybe a national review with recommendations would be helpful.

Oregon Court Derails BLM’s Ambitious Landscape Logging Plan

This Oregon magistrate judge’s decision (“findings and recommendations” that must be confirmed by full judge before they are effective) is sure to delight Jon and infuriate Sharon. The case challenges BLM’s proposal to “treat” 684,185 acres on the Medford District. Plaintiffs prevailed on most of their FLPMA and NEPA claims.

I recommend reading the full decision. It is not long and well-written. Here are a few highlights:

BLM’s argument, at its core, is that because its actions are not intended to aid the development of habitat, its actions do not need to comply with the standard that requires BLM’s actions aid the development of habitat That reasoning is
circular. If the prohibition on treatments that preclude or delay habitat development by 20 years or more only applies to treatments intended to accelerate habitat development, it would render the direction superfluous.

In simply electing its chosen alternative without fully exploring the conflicting research on the issue through a formal EIS, BLM effectively reduces its findings to only the
positive outcomes, while discounting the coinciding negative possibility that treatments would exacerbate forest fires.

BLM adopted an intentionally non-specific approach in the EA to allow the plans to proceed flexibly under a “programmatic”
framework. By design, the Program has an inherently high degree of uncertainty about the proximate environmental impacts of the approved program of work.

BLM tiers to a global EIS that omits any site-specific analysis and explicitly pushes review to later implementation-level projects. Yet, when faced with a later implementation-level project, like the Late Mungers Project, BLM relies on a DNA, a non-NEPA document which cannot substitute for NEPA analysis, to conclude no further NEPA analysis is required. In this way, site-specific analysis is never completed, and it breeds problems for public participation, transparency, and establishing any sort of concrete certainty as to impacts.

As to relief, the court notes the parties agree on the non-commercial treatments and asks them to seek a resolution of the commercial logging aspects in light of the court’s opinion.

Example of Fire Suppression or Expansion Concerns: Guest Post by Frank Carroll

This is a guest post from Frank Carroll.  I think it’s a good illustration of specific concerns that people (including some TSW readers) have about a specific fire.

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Here’s a current example of FS letting burn and expanding the burn policy on the Santa Fe National Forest, Coyote Ranger District. Their aim appears to be to drag the fire into the Encino Vista project area. www.wildfirepros.com
Below is yesterday’s (5/28) thermal hotspot map from #firemappers superimposed on a map of the region.  Forest Road 77 is the yellow road at the southern perimeter of the fire, so it seems that the “low-intensity burn” cited may be the apparent firing activity to the south of 77.  This firing activity comes within about a mile of Route 96 (the area’s main road) and the Encino Vista Project area.
         blue line – Chama Canyon Wilderness boundary
grey area at bottom right – private land
red circle with white flame – location of May 19 fire start
pink line at bottom left – north boundary of Encino Vista Project area

Encino Vista project is just south of this map. It appears the FS is burning south into the teeth of the dominant SW wind to reach their project area and use “emergency fire suppression” appropriated dollars to perform a prescribed fire on a huge scale. Note the red dots with a white center to the south. These are very recent drone strikes.

We’re being played by unilateral decision-making on the fate of public resources. If this thing blows up and escapes, it’s going to decimate a beautiful Southwestern Region PIPO Forest.

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Question for Readers: Are Fire Management Plans Required? If So, What’s in Them?

I was taking a look at a more recent Taxpayers for Common report on wildfire (to be posted later) and ran across this report from 2002.  The title is Wildfire: Just the Facts.

1. During the 2002 wildfire season:

  • 2.4 million acres of Forest Service and burned, in addition to 4.8 million acres of other federal, state, and private land.
  • Firefighting costs reached a record-breaking $1.6 billion.
  • 2,381 structures were lost.
  • Over 30,000 people were involved with firefighting efforts, including firefighters and support personnel.

2. Decades of fire suppression have actually increased the risk of wildfire, especially in forests that experienced frequent low-intensity fires that cleared out undergrowth. Wildfires are a natural part of many forest ecosystems, thus some wildfires should be allowed to burn within certain limits. Human safety and the protection of property and natural resources should remain priorities.

3. Funds spent on fire preparedness directly reduce the amount spent on fire suppression. According to the Forest Service, every $1 spent on fire preparedness decreases suppression costs by $5-$7.

4. According to the General Accounting Office, the Forest Service relies on the commercial timber sale program to reduce wildfire risk and tends to concentrate on forests with high-value timber rather than those facing the greatest risk. Also, fire-risk reduction projects are judged based on the number of acres treated, leading to the treatment of the cheapest areas, as opposed to those that are at the highest risk.

I’d say that the first statement is not true anymore, the second still a topic of concern.

5. Commercial logging can increase the risk of wildfire. Logging removes large, green, fire-resistant trees leaving behind smaller fire-prone trees; opens the forest canopy which leads to drier forests that are more susceptible to fire; and leaves behind flammable materials (i.e. twigs, branches and needles) that increase the rate of fire spread.

I don’t think that this was a “fact” then.. I guess it has to do with the “can” in the bold versus the plain old statements in the rest “logging removes” not “can remove.”

6. Congress gives the Forest Service a “blank check” when it comes to firefighting and does not even try to set a realistic budget for fire suppression. Congress has always reimbursed the agency for any and all costs.

Perhaps fire borrowing came and went since 2002.

7. Fifty-six percent of all National Forests lack approved fire management plans, which were required by the 1995 Federal Wildland Fire Policy. These plans outline what will and will not be done in the event of a wildfire, and the lack of such plans can actually make it harder and more expensive to fight wildfires. Because of the blank-check funding for fire suppression, the Forest Service has little incentive to try to reduce costs through the implementation of these plans.

What are these? Were they really required? Does every Forest have one now? What’s the difference between a fire management plan and a fire plan amendment?

“Revolt in the Firefighting Community?” Hype or Reality?

Scott Lindgren Tahoe-Douglas Fire Chief and head of the Northern Nevada Fire Chiefs Association

I certainly don’t know, but some folks sent me links to this article in the Nevada Globe with that title. It’s by a reporter named Dana Tibbitts who has also written a three part series called “license to burn: wildfire as the ultimate public-private partnership.”

Now we know that different folks here have views on all sides of this issue here at TSW so this may lead to a good discussion.

Indeed, the Chief’s “Burn Back Better” letter has caused a firestorm among firefighters and Forest Service veterans nationwide.

“We ain’t seen nothing yet,” said one fire veteran in response to the letter. “The USFS is doubling down. The Chief’s claim of a ‘historic achievement of 4.3 million acres of restoration’ prioritizes rampant ‘Wildfire Use’ over a strong ‘Initial Attack’ to put the fire out from the get-go. It’s also a misappropriation of congressionally appropriated funds allocated to the agency for emergency fire suppression.” 

Last year was a reprieve,” National Wildfire Institute (NWI) sources say. “Forest maintenance is down, so acres burned will likely increase. It’s only May 22, and about two million acres have already burned. Look for about eight million acres to burn in the 2024 fire season as a strong ‘Initial Attack’ policy gives way to a ‘managed’ or ‘beneficial’ fire. If history is a guide, the West will bear the brunt.”

I couldn’t find out much about the National Wildfire Institute via Google searching. I know TSWites know more about this group, so hopefully you will provide links below.

The colossal fiascoes of the Caldor, Tamarack, and Dixie fires of 2021 are case in point. These fires were allowed to run for months, consuming almost 1.3 million acres of Sierra Nevada forest. The costs of Caldor Fire damages alone ran in the billions of dollars, not including trees and wildlife lost, or damages to 1,200 residents displaced from their homes.

Burning an average of more than six million acres a year over the last decade is now a standing order for the USFS, not only in California but across the nation. The wholesale use of “managed” or “prescribed” fire under the guise of firefighter safety, forest health, and resilience and restoration, is scarring landscapes, devastating forests, and leaving vast lifeless ecosystems with few signs of recovery.

This sounds more like an op-ed than reporting- but then that’s fairly common today.  Anyway, here’s a local fire chief with concerns:

Tahoe-Douglas Fire Chief and head of the Northern Nevada Fire Chiefs Association, Scott Lindgren said, “The latest forecast and guidance from the Chief is so unhinged from firefighting realities on the ground as to defy rational analysis or practical guidance.”

Fire Chief Scott Lindgren (Photo: Tahoe Douglas Fire Protection District)

USFS Regional Foresters are deploying a new policy, calling for all fires in the Tahoe Basin to be risk-assessed and monitored by USFS Regional Foresters, who alone would determine the appropriate response to new fire ignitions.

Lindgren rejects the idea. “It’s a non-starter. If a fire in the Basin threatens my jurisdiction or community, we’re not going to wait around. We’ll hit every fire hard and direct with everything we’ve got. Managed fire is not an option. Look at Caldor and Tamarack. We need to put fires out immediately.”

“The USFS decision to allow these fires to burn is criminal,” Lindgren added. “I’m very disturbed that, by allowing these fires to burn like they did in the Tamarack Fire, they get to count those acres as ‘treated.’ These are not treated acres—they are destroyed acres!”

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When Fire Chief Lindgren testified before the House Committee on Natural Resources in 2022, he raised concerns about Chief Moore’s LOI continuing to advocate the catastrophic burn policy, even after the Caldor and Tamarack fire debacles.

“Many local fire chiefs were very upset,” Lindgren testified. “So, we wrote our own letter of intent, which we believe reflects the public’s expectations and demands of us.” Over 30 chiefs in California and Nevada sign the letter annually.

“We will aggressively attack all fires within or threatening our jurisdictions. We will hit them as fast and hard as possible when they are small. In these unprecedented conditions, we can’t afford the risk to our public, our communities, the environment, the wildlife, critical infrastructure, or our firefighters by letting these fires grow out of control. We will use every available resource and tool to keep this from happening…We will find a way to get ahead of it and stop it at all costs,” Lindgren stated.

“Why can’t the USFS take a similar stance?” Lindgren asked. “Burn Back Better isn’t working.”

The Biden-Harris administration’s plan to Burn Back Better, detailed in Confronting the Wildfire Crisis, lays out a 10-year plan to treat (code for burn) 20 million acres of National Forest System lands, 30 million acres of other Federal, State, Tribal, and private lands, and an additional 10-million-acre targeted burn. That’s a whopping 60 million acres of unauthorized, ill-conceived, unilateral burn treatments for America’s forests, rangelands, and Wildland Urban Interface communities—all in the name of so-called science, resilience and restoration.

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My understanding is that the treatments in the plan include prescribed fire, mechanical treatments, and managed fire.. does anyone know if those categories are broken out in reporting?  Last time I had to dig out the managed fire from a budget statement.

I followed the link to Lindgren’s testimony..and here he is on pay and benefits:

There has been some great work done on State and private land in the Basin. But work on the USFS land is inconsistent and sloppy. This is not the fault of the USFS Lake Tahoe Basin Management Unit, but more so due to lake of funding and lack of staffing. The pay and benefits for the USFS are incredibly deficient and frankly embarrassing. They have massive trouble recruiting and retaining employees. The good employees that they do have are very dedicated, but can only do so much. I have heard the promises in this year’s budget
to fix their pay and benefits, but from what I have recently heard from some of their employees, they have not seen any change. Why? They deserve to be paid what the state and local
government fire departments make. Until the pay and benefits are fixed, you won’t fix the problem. I urge you to fix their pay and benefits ASAP.

Of course, Lindgren’s testimony was in 2022; I haven’t been keeping track of whether pay and benefits (and housing) have been fixed or  not.

New Players in the Wildfire Space: How Can We Work Together Better? Transparency and Funding

Right now in the wildfire space, we have many new folks entering from the political and philanthropic world. How should we welcome them gracefully to what has been historically our space? How would we like them to work with us? I myself have felt territorial from time to time; and yet, these people have far more money and political power than our own communities, so the better we work together the better off we will be. They’ve got new and different ideas from many of us in this space, and they well may be good ideas!  In some cases, they have ideas about how to deal with Climate, and to them, wildfire is one aspect of climate.  We tend to look at wildfires as something we’ve dealt with in various ways (both of thinking and of action)  at least for the last half century- within the memory of TSWites.  Clearly these different perspectives could lead to different framings and different solutions.  We have advantages in terms of knowledge and experience, they have advantages in terms of funding, access to media, and political power.  How can we best work together?

In this series of posts, we’ll take a look at some of the players, their backgrounds and interconnections. Today I’m going to lay some groundwork.

I’m assuming that the new folks have good intentions. But in political world, charitable groups (c3s and 4s) and foundations are not known for transparency. And many of the new players in wildfire space are affiliated with the D political party and/or SIPs (self-identified progressives).  Does their source of funding matter? I’d suggest it does. Not that they are bribed by it, nor that the people funding them are questionable. As the article below argues, Ds as well as Rs have every right to use so-called dark money, since that’s the way the world currently works.

I’m interested in increasing trust in government and making government better; everyone probably agrees with that.  Using dark money, by either party, does not help with that.  I understand the tendency to keep donors secret, but also what they spend their money on seems to be secret.  Lobbying for what exactly? And is anyone checking that the c3s (tax exempt) moving money to c4s are following all the rules (which seem pretty convoluted to me)?

If we were in the New Folks’ shoes, we might foresee a time that our partisanship and our goal of improving wildfire resilience might diverge. Since many fire-prone areas have R politics,  since both parties seem to be around 50% of the population of the country, and since wildfire is going to take long-term investments and coalitions, off the bat, bipartisan solutions seem like the way to go.  And sometimes partisans (on both sides) seem more interested in using issues to gain power than in actually solving real-world problems.

So I want to be very clear that my work to make these folks’ funding and goals more transparent is in the ultimate interests of all of us, to work together toward shared and supported outcomes with minimal Distracting, Expensive and Unnecessary Partisan Drama.  Other concerns include possible tendencies of the New Folks to not interact directly with those in the traditional wildfire space, which could lead to unworkable policy ideas and/or reinventing the wheel.  Hopefully, we can encourage them to work directly with those currently in this space, scientists, practitioners, county and state governments, and so on.

So basically I’m not doing this to pick on Ds- I’m not asking them to do anything different from what I’d ask R’s. It just happens that they are moving in to wildfire space.

I first noticed a few weeks ago that some of the funding for our our new folks (and some newly going to traditional folks in the wildfire space) is indirectly from sources identified with “dark money.” In 2021, Rachel Cohen wrote an interesting article in The American Prospect on dark money and Ds. According to Wikipedia (not always a trusted source) The American Prospect is a magazine from the liberal and SIP perspective. The article has a great explanation of some of the complex context for the lack of transparency, and the concerns that SNPs themselves have with it.  The whole piece is worth a read.

WITH UNION MEMBERSHIP RAPIDLY DECLINING, progressives struggle to counteract the massive power and influence of the corporate lobby. To fill the gap, they turned to tax-exempt nonprofit organizations, of which there are two main kinds, both named for the section of the federal tax code under which they are regulated. 501(c)(3)s, also known as public charities, range from symphonies to the Boy Scouts to (full disclosure) The American Prospect. They can engage only in limited amounts of lobbying, and cannot donate to political campaigns. Financial contributions to c3s also yield donors a tax deduction. 501(c)(4)s—the social welfare groups—provide no tax deduction for contributions, but they can endorse candidates and engage in unlimited lobbying, so long as this doesn’t comprise the majority of their activities. Importantly, they need not disclose their donors.

One doesn’t have to squint to see why dark-money groups are attractive to the rich. The vehicles allow them to donate and avoid the negative attention that might come with disclosing their identities, like protests outside their home or bad press. Anonymity also helps them avoid threats of violence or actual harm, defenders of the status quo like to say. The Philanthropy Roundtable, a conservative advocacy group for charitable giving, says shielding donors from public scrutiny is necessary for “philanthropic freedom.”

While some issues—particularly abortion access—have a real record of harm for supporters, most advocacy groups hide today behind harassment of abortion activists to rationalize their own lack of transparency. Other groups cynically cite a Supreme Court decision from six decades ago that unanimously ordered Alabama to stop accessing the NAACP’s membership list, concluding that doing so interfered with members’ right to freely associate. However, a billionaire donating to a political nonprofit to run anonymous ads against Medicare expansion should not be likened to the legitimate threats Black Americans faced in the South during the civil rights movement.

Sen. Sheldon Whitehouse (D-RI), the lead sponsor of the DISCLOSE Act, says he has no problem with rich donors who want to, say, give discreetly to their alma mater. “There are some good reasons for anonymity, maybe you want to give a big donation to your university and want to avoid other people coming to ask you for money—there’s nothing really wrong with that,” Whitehouse said. “But it’s different when you’re trying to exert political pressure over others and refuse to stand up for your views.”

I’m totally with Whitehouse on that.  At the same time, he is one of the supporters of WEG.. who.. don’t disclose their donors.

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DOES IT REALLY MATTER if liberal political advocacy groups and campaigns disclose their donors, if the house is on fire?

Dorfman thinks that transparency is “helpful to the cause” and that groups should disclose “a great deal of information,” but acknowledged that sometimes donors just don’t want to do that. “I think each organization in the progressive space needs to make that call, on their own within the limits of the law,” he said.

One challenge of hiding donors is that it makes it more difficult for the public to assess which organizations authentically speak for the communities they purport to, and which are just pet projects of the rich or schemes by companies.

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These advocacy groups, and their donors in turn, exert real influence on the priorities of politicians, leading them too often in less populist directions. This isn’t new, and the Democratic Party in particular has been making itself more easily swayed by the whims of the wealthy ever since the early 1980s.

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Political scientists Alexander Hertel-Fernandez and Theda Skocpol have noted that the structure of these elite donor consortia have potential to influence politics in uniquely powerful ways, even beyond similar partisan super PACs and single-issue advocacy groups.

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My bolds:

The suggestion that wealthy donors on the left never advocate for their economic self-interest doesn’t hold much water, either. The rapid demise of the ambitious and extremely popular redistributive tax proposals in the Democrats’ Build Back Better Act suggests who still has the ear of those in power.

“This stuff is so opaque and no one is holding anyone accountable,” said one staffer whose employer works with the venture philanthropy funds. “The organizational landscape of civic and political organizations is just totally being transformed as inequality grows and rich people get uber rich and we are finding more creative ways to distribute their money.”

The staffer, who works in progressive movement building, says the landscape is becoming “extremely donor-centric” in a way that no longer even resembles the industrial-titan philanthropic milieu they once knew. “We’re entering this new era of capitalism dominated by finance, tech, and insurance. The money is different,” they said. “We’ve linked our fates here to new powers within capitalism, and [how] that money is moved, aggregated, pooled, and filters down is really different than even several years ago, and it scares me a little bit.”

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AS PROGRESSIVE GROUPS GROW more dependent on rich donors who’d like to keep their contributions private, liberals find themselves contorting into awkward positions to justify the status quo, insisting groups that are clearly affiliated with the Democratic Party are not, in fact, partisan. Political nonprofits tend to insist they’re independent and simply “issue oriented”—a framing that’s practically dubious but legally necessary to keep their nonprofit status.

This strained logic was on display this past year when The New York Times profiled obscure Swiss billionaire Hansjörg Wyss, who has become one of the top funders of left-leaning organizations, donating hundreds of millions of dollars since 2016 both to entities that distribute funds to other progressive political advocacy groups, and directly to organizations like the Center for American Progress, a liberal think tank where Wyss sits on the board. While Wyss does not donate directly to candidates or PACs, the groups benefiting from Wyss’s contributions work to help Democrats and defeat Republicans. Representatives for the billionaire insisted to the Times that his money was not “spent on political campaigning” and was merely “bolster[ing] social welfare programs in the United States.”

With a heavily weakened and embattled IRS, partisan c4s are so confident today that they will face no punishment for engaging too much in political activity that even Majority Forward, a c4 founded in 2015 and affiliated with Senate Democrats, told the Federal Election Commission that it did not receive contributions in 2018 earmarked for political purposes and thus refused to disclose its donors, despite spending more than $45 million that cycle boosting Democrats.

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As to Wyss.. I wrote about him on TSW here (Swiss dude with outsized policy influence).

More recently, I ran across an article from last fall by a fellow in Maine about Wyss:

Wyss is hardly a newcomer to influencing Maine politics — even if he is, as a Swiss foreign national, prohibited under federal law from voting in America or donating to American political campaigns.

Through his $2.7 billion Wyss Foundation, his $232 million Berger Action Fund, the Democracy Alliance’s Democracy Fund, and the Arabella Advisors network of dark money, Wyss has joined other progressive billionaires like George Soros, S. Donald Sussman, and Pierre Omidyar in financing Democratic politicians and progressive activists, in Maine and nationally.

And one in February in Politico:

After the Sixteen Thirty Fund, Berger Action Fund’s next largest beneficiary was the Fund for a Better Future, a dark money group that supports causes like abortion rights, social justice immigration and public health, and is behind the green group Climate Power, which has supported Democratic climate priorities like the Inflation Reduction Act. Fund for a Better Future received $19.8 million from Berger Action Fund in fiscal 2022, down from $20.2 million the year prior.

More about Fund for a Better Future in wildfire space in a later post.

Civil War Memorial Grove

This Memorial Day, I was looking for Forest Service or tree-related history and found this memorial at the State Capitol in California.

The Civil War Memorial Grove pays tribute to the thousands of men who lost their lives in the American Civil War.

The Grove was originally planted with trees from the Manassas, Harpers Ferry, Savannah, Five Forks, Yellow Tavern, and Vicksburg battlefields. Some trees came from other Civil War-related sites, including the tombs of Presidents McKinley and Lincoln.

The idea for the Memorial Grove dates to 1896, 31 years after the Confederate Army’s surrender marked the end of the American Civil War. Mrs. Eliza Waggoner and the Ladies of the Grand Army of the Republic, an organization of veterans’ wives and daughters, led the effort to create the memorial. Although California had sided with the Union Army, they felt the grove should represent all those who fought in the four-year war. Their concept was a living memorial featuring trees from important battlefields and other sites connected to the war.

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The Civil War Memorial Grove was the first monument in Capitol Park. Nearly a year went into planning, fundraising, and assembling trees from around the country. On May 1, 1897, the Grove was dedicated in a ceremony attended by several thousand onlookers. As children waved American flags, Judge Walling, Past Department Commander of the Grand Army of the Republic, shared these words:

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At the time of the ceremony, the trees were just saplings, each marked with a tag naming the battlefield from which it came. A sapling from Gettysburg, Pennsylvania stood beside one from Shiloh, Tennessee; a sapling from Lexington, Kentucky next to one from the Wilderness Battlefield in Virginia. In all, 40 different battlefields were represented. At the center stood “a tree of Peace” transplanted from Appomattox, the Virginia town where the Confederate Army surrendered in 1865.

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The Civil War was one of the most traumatic periods of American history, dividing families, friends, and neighbors. The Civil War Memorial Grove honors the many soldiers who lost their lives during the Civil War.

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