• Wilderness Fire — By George Nickas
  
  
• Who’s Afraid of the Big Bad Fire? — By Janna Rankin
  
  
• Emigrant Dams Bill Washes Out! — Steve Brougher
  
  
• The Dilemma of Wilderness Fire — David J. Parsons
  
  
• The Federal Wildland Fire Policy — G. Thomas Zimmerman
  

Wilderness Fire

— By George Nickas

The role for natural fire in shaping Wilderness ecosystems may be the greatest challenge facing managers and wilderness advocates today. In this issue of the Wilderness Watcher we’ve attempted to provide a glimpse into some of the issues and perspectives involved in sorting out the appropriate Wilderness fire policy.

The Wilderness Act defines Wilderness “as an area where the earth and its community of life are untrammeled by man...retaining its primeval character and influence...which is protected and managed so as to preserve its natural conditions...” Indeed, on the continuum of land protection systems wildernesses have the greatest statutory protection from human influence of all public lands.

Yet, the Act’s intent that natural processes should operate freely and that management should be directed toward controlling human impacts rather than natural processes continues to be a very elusive goal. In part, this is because virtually no wilderness is immune to outside influences. Even the largest wildernesses can’t escape the consequences of disrupted wildlife migration routes, fire suppression, acid rain or human-caused global climate change.

There are many points about fire upon which most scientists, wilderness advocates and managers agree. We know that fire played a major role in defining many of our wilderness ecosystems; we understand that the near century-long policy of suppressing all fires has affected forests and grasslands; and we expect that if current suppression policies and practices remain in place many ecosystems will be forever changed.

However, as more is learned about the natural role of fire in maintaining these ecosystems so, too, has grown the tendency for managers to want to manipulate fire to achieve management objectives. This view has been strengthened by the recently approved national fire policy, which stresses that all natural fires should be controlled unless there is a specific fire management plan in place for the wilderness area and, even then, that natural ignitions will be allowed to burn only under narrowly defined prescriptions. While the policy requires a comprehensive plan before natural fires will be allowed to burn, there is no such plan required before administrators engage in a program of prescribed burns. Fire is destined to become a means to an end, a manipulative tool rather than a natural process in Wilderness.

The most common argument offered by managers for suppressing fires hasn’t changed, a fear that the fire will rage out of control consuming public and private resources and putting human lives at risk. But as David Parsons suggests, this approach only prolongs the inevitable and assures that when the area finally does burn the risks and costs will be much greater. One has to wonder if perpetuating the notion that we can control fires only encourages more development in harm’s way.

Managers must also wrestle with the issue of determining to what degree fire within wilderness will be manipulated in order to protect or serve “outside” interests. Is it appropriate to suppress a fire that might burn for weeks and range over thousands of acres in order to protect a private cabin on a 20-acre inholding, as so often happens? Is it okay to control a fire in Wilderness to reduce the likelihood it might “escape” and burn an adjacent timber stand, and should it make a difference if the timber stand is on private versus public land? What responsibility, both legal and ethical, do land managers have to protect private interests from natural events? How do those responsibilities stack up against the mandate to administer Wilderness as an area untrammeled by humans? Janna Rankin, an expert in the field of liability, suggests that land managers are foisting far more responsibility upon the federal government to protect private interests than the law and courts have suggested is warranted.

More troubling in many ways than fire suppression is the growing tendency toward utilizing management-ignited (“prescribed”) fire to intentionally manipulate Wilderness conditions. The justifications given for this highly invasive strategy suggest that these prescribed burns will mimic natural fires, but under controlled conditions, and that past suppression had led to such a high build-up of fuels that natural fires will no longer lead to “natural” results. While every situation will be different, experience thus far indicates neither of these argument usually holds water.

Take for example the suggestion that prescribed fire mimics natural fire. Conceptually, if we ignited a fire under the same conditions and in the same location that lightening struck, the ecological effects would be the same. But as Bill Worf has written, “No fire specialist I know is proposing to go out on a hot August afternoon with fire danger at extreme and start setting fires. Yet before humans started suppressing them, lightning fires started under those conditions probably accounted for most of the burned acres.” At the same time, almost nothing is known about the short or long-term effects on soils, flora or fauna from burning during the “off-season” and under controlled conditions.

Similarly, there is scant evidence in most cases to support the idea that natural fires are resulting in unnatural effects. A recent Freedom of Information Act request to the Forest Service regarding the fire history in the Salmon River canyon, one of the ecosystem types most often claimed to be at risk from natural fires, failed to turn up a single bit of evidence that any fire in the past 20 years has burned outside the projected range of natural variability.

Of course, it begs the question of how we would even know if a lightning fire’s effects were “unnatural.” There are large expanses in the Great Burn roadless area on the Montana/Idaho divide that remain untimbered following the fires of 1910. Certainly past fire suppression wasn’t a factor in those fires. Yet, if such a vegetative shift occurred as the result of a fire today, an unnatural fuel build up would no doubt be blamed.

Are there times that interfering with natural fire regimes is consistent with Wilderness? Section 4(d)(1) of the Act gives the Secretaries of Agriculture and Interior authority to take “measures” to control fire, insects, and disease, so it’s clear there is some allowance for fire suppression. But, on the other hand, did the framers of the Act contemplate management ignitions? Wilderness—wild and untrammeled—has much to teach us, but its ability to do that is compromised every time we intervene.

Wilderness Watch believes that Wilderness fire policy must be changed to allow fire to play its natural role in shaping Wilderness ecosystems. Fire management policies and plans should reflect the following:

1. We must acknowledge that human intervention runs counter to the spirit , if not the letter of the Wilderness Act. The emphasis of the Act is on allowing natural processes to operate freely. When managers light the match, fire ceases to be a natural force and instead becomes a manipulative tool.

2. Wilderness fire plans should be developed on a landscape level. Planning on a larger geographic scale can allow fires that start outside Wilderness to burn into the Wilderness. At the same time, strategies to protect adjacent lands or structures can be implemented without interfering with Wilderness fires.

3. Structures can be protected without total fire suppression. Techniques ranging from using fire-resistant wraps and foam to clearing away nearby ground fuels have proven very effective in saving cabins, bridges, fire towers, and similar structures. It isn’t necessary to conduct prescribed burns or suppress natural fires to protect legitimate structures.

4. Private landowners bear the responsibility for protecting their land. If a person chooses to build a cabin in the woods, it isn’t the public’s obligation to protect it. Similarly, it’s inappropriate to engage in a prescribed fire plan that manipulates hundreds of acres of Wilderness in order to protect a private inholding.

5. Creating buffer zones or fire breaks within Wilderness is inappropriate. Every acre of Wilderness needs to be treated as such, whether it lies ten miles or ten feet inside the boundary. Actions to control the effects of fire that spreads onto adjacent public or private land should focus on those lands, not the Wilderness.

6. The role Native Americans played in fire history is important, but shouldn’t affect Wilderness fire policy. Congress defined designated Wilderness as areas where humans would not (in the future) occupy or modify the landscape. Even had Congress chosen a different path, for political, practical and ecological reasons it would be impossible to recreate pre-Columbian conditions.

7. Prescribed fire should only be used for Wilderness purposes, and only then after a showing, with substantive evidence, that a natural fire regime can not achieve those same purposes. The burden of proof should always be on those who propose to manipulate Wilderness.

8. When suppression actions are taken, every effort must be taken to limit the impact on Wilderness. Every use of motorized equipment, every tree cut, every fire line built must meet the minimum tool test. “Minimum Impact Suppression Techniques” should be followed in every case.

— By Janna Rankin

Janna Rankin is Professor Emeritus at San Diego State University, a legal expert on liability, and a consultant to the National Park Service on a variety of legal matters.

Learn not to burn, we were told. Juvenile delinquents played with matches. Hellfire and damnation were awaiting those of us who were naughty. Smokey the Bear was an enormous success; the courts and legislators learned the lesson as well. Fires were bad. Politically and ideologically, the destructive forces of fires, the graphic images of our beloved parks aflame, the tears of homeowners who had built in the dangerous interface areas, made vivid impressions on the public. For a politician to take a position against fire was akin to arguing against allowing drunks to drive: there was no political risk. The courts held public land managing agencies liable for damages when, as in 1960, a fire spread from a planned brush burn area along a railway onto private lands.

Gradually, however, a few heretics started suggesting that fire had beneficial effects and that rather than suppressing each and every wildland conflagration, the managing agencies should, under carefully controlled circumstances, allow the fire to burn. Fire could be viewed as an ecological phenomenon, a natural part of the environmental balance, and a useful management tool for a healthy forest.

Whenever diametric views are expressed, instant rationales are presented explaining why the new concepts won’t work. One of the most frequently mentioned rationales is “the law won’t allow it.” The specter of the Liability Boogeyman raises its ugly head and agency decision-makers and supervisors back away.

When we analyze the reported cases, we find little to support the fear of liability. A recent review of cases shows that lawsuits brought against public agencies which have followed clearly defined fire management goals and comprehensive fire management plans have not been successful. For example, in Parsons v. United States when five-hundred acres of private timber were destroyed during a wildland fire in the Stanislaus National Forest, the owners of the timber sued to recover. They claimed that the Forest Service had been negligent in efforts to suppress the lightning-caused fire, and offered sixteen separate examples of alleged negligence. The Forest Service responded that it reasonably lit a portion of the property as part of a “burnout” in an attempt to direct the wildfire away from approximately thirty homes. The court held there was no applicable law which required the agency to suppress the fire, and, in fact, the regulations permit the exercise of discretion in making policy decisions with regard to fire suppression. The USFS could take into account the threats to human lives, to private homes and other structures, to endangered species, the limitations of economic resources and other overall resource management considerations.

This decision is consistent with overwhelming precedent. When statutes or regulations permit the exercise of discretion, the federal agency is immunized against liability under the Federal Tort Claims Act. That is to say, the courts may not get into the business of second guessing resource managers who are either directly following a Congressional mandate or exercising policy level decisions to implement a plan.
While the actions of the Forest Service might have been negligent in the Parsons case, the court held that this is “simply irrelevant” in an inquiry into the applicability of the discretionary function exception because the Federal Tort Claims Act offers immunity “whether or not the discretion involved be abused.”

In a 1995 case, a game hunter guide’s camp was destroyed by a fire which had been intentionally set as a part of a controlled burn to improve wildlife habitats in the Bridger-Teton National Forest. Mr. Thune, the guide, sued the government alleging that he lost more than $43,000 worth of gear when he was forced to abandon his base camp where he stored most of his hunting equipment. He claimed that the Forest Service was negligent in starting the fire and in failing to contain it when it burned beyond the prescribed habitat area. Again the government argued that the claim was barred by the discretionary function exception to the Federal Tort Claims Act. The court agreed that even though the fire escaped the original planned burn area and was then designated a wildfire (and was subject to full suppression efforts by the Forest Service), the plaintiff’s claims of negligence on the part of the agency were barred.

While the two-step legal analysis of what constitutes a “discretionary function” can be complicated and ponderous, the bottom line is that if the challenged action involves a matter of judgment or choice and is based on considerations of public policy, then the consequences of the action will not result in liability even if serious, unforseen damage results. In the Thune case the government defendant had developed detailed burn plans, had followed established fire fighting policies, and had conducted the controlled burn in accordance with the requirements of the Forest Service Manual. There was, therefore, no liability.

In 1995 the Ninth Circuit reversed a summary judgment in favor of the Forest Service with regard to a prescribed burn in the Cleveland National Forest. The fire had burned within prescription for eight days, but escaped some time after that and destroyed a portion of a residential neighborhood in Riverside County, California. The Federal Tort Claims Act provides that the United States shall be liable for the acts of its employees “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act . . . occurred.” California law has, since 1872, held private individuals responsible “for an injury occasioned to another by his want of ordinary care or skill in the management of his property. . . .” The court reasoned that since a private individual in California would have been held responsible had he or she allowed a fire to escape with resulting injury to others, the federal government should not be immune. Note that the court did not address the discretionary function exception in this case since it was decided on the narrow application of California law.

In summary, it is neither possible nor desirable to suppress all wildland fires. While the public agencies managing the land may attempt to minimize harm to valuable resources and property, the courts will not operate as a tool to reinforce public expectations that all fires should be contained or suppressed. Fear of liability should not drive the decision-making process. Successful fire management must, of course, take into account certain political realities, and must attempt to reeducate the public so that the perception of the “disaster” of “Yellowstone in flames” is not repeated.

Steve Brougher is vice-chair of Wilderness Watch’s Central Sierra Chapter.

In a dramatic last-minute development, Congressman John Doolittle’s (R-CA) bill to require reconstruction and maintenance of dams in the Emigrant Wilderness was blocked in the Senate and died with the adjournment of the 105th Congress. While this was a tremendous relief for all those who had opposed this terrible anti-wilderness legislation, the battle is far from over. Furious over this turn of events, Doolittle has vowed to make this bill his top priority in the new Congress.

Last year the House overwhelmingly passed H.R. 1663, due in large part to swift political maneuvering by Doolittle that allowed little opportunity to fully inform Representatives of the true nature of this bill. This past July Senator Dianne Feinstein (D-CA), disappointingly, backed the bill, apparently because of the House vote and a belief that the local community supported it. Shortly thereafter, the Senate Committee on Energy and Natural Resources passed the bill in a mark-up and sent it on for consideration by the full Senate. Although Senator Barbara Boxer (D-CA) seemed to disagree with the bill, these political circumstances made her reluctant to oppose it. In August, a “compromise” was offered to drop 5 of the 18 dams from the bill and Boxer’s office encouraged opponents of the bill to endorse it. The rationale was that it appeared to be a foregone conclusion that the bill would pass the Senate and here was an opportunity to lessen the impact.

Boxer’s staff argued that 13 dams was a better deal than 18, but opponents of the bill didn’t buy it. The whole point of opposing the bill was that it would have undermined the Wilderness Act. Consider this analogy: suppose an area in the California Desert had 18 off-road vehicle routes before being designated Wilderness, and twenty years later, legislation is introduced to re-open these routes to vehicle use. After a political battle, a “compromise” is offered to reduce the proposal to 13 routes. Would it be advisable for wilderness advocates to agree to such a proposal? So it is with the Emigrant dams. The issue was never a numbers game - 18 dams or 13 dams, it’s still the same. Agreeing to the Emigrant Dams bill would have compromised our principles and degraded wilderness.

Undaunted, Wilderness Watch and The Wilderness Society continued to illuminate the problems with the bill and asked a number of Senators to intervene. In response to our appeals several anonymous holds were placed on the bill in the last days of the Congressional session, preventing it from coming to a vote. Thus, when the Senate adjourned on October 21, H.R. 1663 was dead in the water.

Doolittle was livid. The Sonora Union Democrat quoted a Doolittle aide as stating, “If Wilderness Watch thinks they’ve killed this bill, they’ve got another thing coming.” Doolittle has indicated that he intends to make this issue his top legislative priority in the next Congressional session. “And next time,” added his aide, “he won’t compromise. He wants all 18 dams to remain intact.” Since Mr. Doolittle apparently has nothing better to do than assault the Emigrant Wilderness, wilderness defenders will need to respond to this issue again in the coming year. The good news is that he will have to start from scratch, re-introducing the bill and requiring new votes in both the House and Senate. This time we will be better prepared to inform the members of the threat this legislation poses, without the uphill defensive battle resulting from the lopsided House vote that Doolittle shrewdly orchestrated last time.

Congressman Doolittle’s actions not only bode ill for the Emigrant Wilderness, but also undermine the foundations of the Wilderness Act. If we allow legislation to pass every time someone disagrees with the requirements of this important conservation law, it will cease to be effective.

— David J. Parsons

David J. Parsons is Director of the Aldo Leopold Wilderness Research Institute in Missoula, Montana.

The restoration of fire as a natural ecological process poses a significant challenge to wilderness managers. Following nearly a century of efforts to eliminate fire, it is now widely recognized that fire plays an essential role in the evolution of many natural ecosystems, and fire suppression eliminates one of the most important factors influencing wilderness. The restoration and maintenance of fire as a natural process is essential to the long term preservation of wilderness ecosystems. However, despite widespread recognition of the importance of restoring natural fire to wilderness, suppression continues to dominate most wilderness fire programs. The failure to restore natural fire to most wilderness areas poses a dilemma for wilderness advocates and managers.

Recognition of the detrimental effects of fire suppression led to establishment of the first natural fire management program by the National Park Service in 1968 when two lightning-ignited fires were permitted to burn in Kings Canyon National Park. By 1988 natural fire programs were in existence in 26 national parks and 50 Forest Service wilderness areas. However, the 1988 Yellowstone fires (over 3.7 million acres burned throughout the western United States) brought an immediate halt to wilderness fire programs. Since 1990, natural fire management programs have been gradually re-established in many national park and Forest Service wildernesses. However, new guidelines to reduce the risk of potential wildfire escape have severely restricted the number and size of fires allowed to burn.

Although management policies of all four federal wilderness management agencies recognize the importance of fire as a natural force in wilderness, most wilderness areas have no provision for permitting natural ignitions to burn. At the beginning of the 1998 fire season, only 58 of 398 Forest Service wildernesses had approved fire management plans that permitted natural ignitions to burn. Twenty six national parks (including 17 of the 36 parks with designated wilderness in the lower 48) had plans permitting the use of natural fire. The average number of natural ignitions allowed to burn and the acreage burned per year in national parks in the 1990’s has been less than 50% of that prior to 1988. Average fire size is only about a fourth of that prior to 1988. Whereas six of 131 Bureau of Land Management wilderness areas have management plans allowing the use of natural ignitions, the BLM has yet to allow a natural ignition to burn. The Fish and Wildlife Service, although supporting a limited suppression policy in Alaska, has yet to recognize the need for permitting lightning fires to burn in the lower 48.

As an alternative to permitting natural ignitions to burn, the use of prescribed burning (management ignited fires) in wilderness has been increasingly utilized by the BLM, National Park Service, and Fish and Wildlife Service to reduce unnatural fuels, simulate the effects of natural fire, or to accomplish specific management objectives (such as habitat improvement). Despite opposition from many wilderness advocates to prescribed burning as an inappropriate intrusion, it continues to be used by these agencies. The Forest Service has generally not permitted the use of prescribed burning in wilderness except in limited cases where necessary to reduce unnatural fuel accumulations. The seriousness with which this prohibition is taken was recently demonstrated when significant suppression efforts were taken on a 1,700 acre prescribed burn on the Bitterroot National Forest in Montana as it spread upslope into the largely snow covered Selway-Bitterroot Wilderness. In 1995, the national forests in Florida were granted authority by the Chief of the Forest Service to use management ignited fires in wilderness to accomplish wilderness objectives, including burning “to mimic pre-settlement lightning ignitions in order to let the natural processes occur.” Although, to date, no other national forests have been granted such an exception a number of areas are considering proposals for the use of management ignitions in wilderness as substitutes for lightning fires that can not be allowed to burn. Regardless of one’s perspective on the appropriateness of prescribed burning in wilderness, the cost and resource constraints prohibit its use on the scale that would be required to restore fire to most wilderness acreage.

The fact that the majority of wilderness areas managed by all four wilderness agencies continue to be managed under a policy dominated by (if not exclusively) fire suppression indicates that the vast majority of natural ignitions in United States wilderness continue to be suppressed. Efforts to restore natural fire to wilderness must be dramatically increased if wilderness ecosystems are to be sustained in anything close to their natural state. A failure to accomplish this can be expected to result in shifts in successional patterns, disruption of coevolved species associations and unprecedented fuel accumulations. Ultimately, increasing occurrences of large, uniformly intense wildfires that threaten non-wilderness resources can be expected.

What are the options? If administrative constraints continue to limit the use of natural ignitions there are a limited number of viable options for most wilderness areas. These include a continued emphasis on suppression, expanded use of management ignitions, or use of some sort of fire surrogate - the most often suggested being various forms of mechanical thinning or harvesting. Since none of these are desirable, or to many, even acceptable in wilderness, it is clear that we face a significant dilemma in the future management of wilderness fire. If a way is not found to increase the use of natural ignitions (including mitigation of concerns over air quality impacts, threat of escape, and even questions of bureaucratic responsibility) we are faced with one or more of the above options. It is time that this dilemma be acknowledged and the options and consequences of the various choices be addressed.

PS: A recent change in federal terminology has eliminated the use of all terms other than prescribed fire (management ignitions) and wildland fire (which can either be suppressed or managed for resource benefits). It is unclear what the effect of classifying all natural ignitions as wildland fires will have on the ability to allow such fires to burn under certain conditions.

G. Thomas Zimmerman is the Fire Science and Ecological Applications Program Leader for the National Park Service and the National Interagency Fire Center, based in Boise, Idaho.

The Departments of Interior and Agriculture, together with Tribal governments, States, and other jurisdictions, have responsibility for protection and management of natural and cultural resources on public and Indian Trust lands in the United States. Challenges and risks associated with wildland fire management are continually increasing in both complexity and extent. Threats from wildland fires grow each year as long-term effects from past land use and fire management actions become visible in natural vegetation communities. In addition, escalating values to be protected associated with current land use practices are compounding protection concerns. Federal land management agencies’ ability to respond to these challenges is rapidly becoming overextended.

Wildland fire management policy and procedures must change to reflect new considerations, capabilities, and direction, while being responsive to resource management objectives. The events of the 1994 fire season created a renewed awareness and concern among the Federal land management agencies and constituents about safety, the impacts of wildland fire, and the integration of fire and resource management. As a result of those concerns and in response to specific recommendations in the report of the South Canyon Fire Interagency Management Review Team (IMRT), the Federal Wildland Fire Management Policy and Program Review was chartered and completed in 1995.

This review represents the most recent evolutionary stage of wildland fire management. This policy directs federal agencies to achieve a balance between suppression to protect life, property, and resources, and fire use to accomplish resource benefits. The objectives previously accomplished through prescribed natural fire are now achieved through application of an appropriate management response to naturally ignited wildland fires. Wildfire has been eliminated as a fire type. All fires other than those intentionally ignited by managers are referred to as “wildland” fires.

The Fire Policy recommends a set of thirteen Federal wildland fire policies in the areas of: safety, planning, wildland fire, use of fire, preparedness, suppression, prevention, protection priorities, interagency cooperation, standardization, economic efficiency, wildland/urban interface, and administration and employee roles. The success of these recommendations and policy implementation depends upon actions and expectations both internal and external to Federal Agencies. Agencies and the public must change their expectations that all wildland fires can and should be controlled and suppressed.

As the new policy is fully implemented, the specific nature and objectives of the program will not change to a significant degree. Why fire management actions are developed will not markedly change, but how fires are managed will change. Under this policy, the link between land and resource management planning and on the ground implementation will be stronger than ever before. This translates into a direct correlation between fire management actions and resource management objectives. For all future fire management actions, managers will be able to fully justify why that action was taken and what objectives will be accomplished by it. It is possible that a decrease in the total number of fires suppressed and extinguished at a very small size will occur as more fires are either managed for resource benefits or suppressed through strategies and tactics appropriate for the particular situation. The policy promotes use of the appropriate management response which facilitates development of management responses to reflect resource management needs and constraints, maximizes the commitment to safety, achieves cost-effectiveness, and accomplishes desired objectives while maintaining the flexibility to vary intensity as conditions change.

The future of wildland fire management is apparent through an evaluation of the 1998 fire season. As the policy was being initially implemented in the western United States, lightning ignited many wildland fires that were managed with the full range of appropriate management responses.

Simultaneous actions were taken to suppress numerous large and/or threatening wildland fires and manage many other fires to accomplish resource benefits. In comparison to past policy, constraints, and capability, this reflects a dramatic programmatic shift. Greater balance is evident in the fire management program as increased emphasis is being placed on the use of fire to accomplish resource benefits while the responsiveness and capability needed for effective suppression is being maintained.