Whoofoos and NEPA

As sick as we are of this subject, one more post is needed to convey understanding of the whoofoo conspiracy. Whoofoos (wildland fire use fires or WFU’s) are exempt from NEPA. Actually whoofoos are more than exempt; under the newest interpretations of NEPA, whoofoos are required.

NEPA is the National Environmental Policy Act (see here). NEPA is the Federal law that requires “an environmental impact statement (EIS) to be written for all major federal actions which may have a significant impact on the environment.” When the US Forest Service, for instance, does something that might affect the environment, they are supposed to write an EIS.

Since its passage in 1970, NEPA has engendered a zillion EIS’s (we don’t really have any idea how many, but it must be in the millions). All EIS’s must have the following parts (see here):

An Introduction including a statement of the Purpose and Need of the Proposed Action.
A description of the Affected Environment.
A Range of Alternatives to the proposed action. Alternatives are considered the “heart” of the EIS.
An analysis of the environmental impacts of each of the possible alternatives

Furthermore, an EIS must be prepared by following the NEPA process:

The process has the following steps:

Scoping: When a project is first proposed, the agency announces it with a notice in the Federal Register, notices in local media, and letters to citizens and groups that it knows are likely to be interested. Citizens and groups are welcome to send in comments helping the agency identify the issues it must address in the EIS (or EA).
Draft EIS: Based on both agency expertise, and issues raised by the public the agency prepares a Draft EIS with a full description of the affected environment, a reasonable range of alternatives, and an analysis of the impacts of each alternative. The public is then provided a second opportunity to provide comments.
Final EIS and Proposed Action: Based on the comments on the Draft EIS, the agency writes a Final EIS, and announces its Proposed Action. The public is not invited to comment on this, but if they are still unhappy, or feel that the agency has missed a major issue, they may protest the EIS to the Director of the agency. The Director may either ask the agency to revise the EIS, or explain to the protester why their complaints are not actually taken care of.
Record of Decision: Once all the protests are resolved the agency issues a Record of Decision which is its final action prior to implementation. If members of the public are still dissatisfied with the outcome they may sue the agency in Federal court.

Note the last part. “Members of the public” can sue the Federal Government if they don’t like the final outcome of a NEPA process. And sue they have. Zillions of lawsuits have been brought against the Federal Government regarding the NEPA process. There has arisen an entire body of NEPA law, courts, attorneys, and special interest groups that do nothing but NEPA suits. After 37 years of NEPA, the law has been interpreted by Federal courts so many times that NEPA has become a legal labyrinth of Byzantine proportions. The Endangered Species Act is a garden maze in comparison.

NEPA lawsuits have crippled the USFS. Nothing they do, or plan to do, passes muster in Federal court anymore. NEPA law, as interpreted, is riddled with Catch-22’s and damned if you do damned if you don’t self-contradictions. And perhaps no contradiction is as blatant and wrong-headed as whoofoos.

Whoofoos are Federal actions that affect the environment, but no whoofoo has ever been through the NEPA process. There have been zero whoofoo EIS’s. There have been no scopings, no draft EIS’s, no public comment periods, and no Record of Decisions regarding whoofoos.

Whoofoos are not unplanned accidents. The USFS has a dedicated program. Tim Sexton is the fire use program manager for the USDA Forest Service, Fire and Aviation Management, Washington Office.  Sexton is Mr. Whoofoo. He was also coordinator of a special whoofoo issue of Fire Management Today (see here, 6,444 KB). In it Mr. Whoofoo wrote:

Wildland fire use outside of wilderness areas is relatively new. Prior to 2004, only a few forests (mostly in Arizona and Utah) had authorized WFU outside of wilderness areas. Across the country, just a few small fires had actually been managed as WFU fires through 2004. In 2005, about 30 percent of the area burned under WFU strategies occurred outside of wilderness.

Fire management plans completed in December 2004 greatly increased the area available for WFU outside of wilderness areas. In 2005, about 25 percent of Forest Service lands had planning in place to allow WFU. As new fire management plans in progress are completed, this percentage should increase significantly during the next 2 years.

Twenty-five percent is 47,550,000 acres slated for whoofoos. That number is growing, though.

Fire Management Plans (FMP’s) are subject to NEPA. Eco-litigious groups have been suing the USFS over FMP’s because NEPA law opens the door. But those lawsuits are not aimed at forcing EIS’s to be drawn up for whoofoos. In fact, it’s just the opposite. The eco-nuts have been suing to force the USFS to have unplanned whoofoos.

This might be counter-intuitive to the uninitiated, so we’ll say it again. If a National Forest does not have unplanned whoofoos in their FMP, they are “violating the law.” Federal courts have held that lightning fires in the middle of fire season on non-wilderness Federal land must be allowed to burn freely, because NEPA requires it.

You can be assured that NEPA does not mention whoofoos. Whoofoos are a new invention, more recent than NEPA (which has never been altered by Congress since its inception in 1970). Yet somehow Federal courts have found that under NEPA whoofoos must be in FMP’s, without any EIS’s or NEPA process that addresses whoofoos.

Confused yet? The law that requires environmental impact statements for Federal actions that affect the environment somehow requires and excludes whoofoos from that process. As the Federal judiciary has ruled, NEPA mandates non-NEPA whoofoos.

A case in point is illustrated by Wild California’s press release No. 77 (see here). We post it in full for your edification:

Court Ruling Opens Forest Service Fire Planning to Public
FOR IMMEDIATE RELEASE: April 7, 2006
For more information, please contact:
Scott Greacen 707-834-6257
Environmental Protection Information Center (EPIC)

Timothy Ingalsbee 541-302-6218
Firefighters United for Safety, Ethics & Ecology (FUSEE)

Holly Gordon 650-725-4217
Stanford Environmental Law Clinic

SAN FRANCISCO and EUREKA, CA–In an order issued Thursday, a San Francisco federal court made it clear that a key federal environmental law applies to the Forest Service’s plans for managing fire. The environmental group that brought the case hailed the decision as a milestone which will force the Forest Service to involve the public, consider alternatives, and disclose environmental impacts as it decides how and when to use or suppress fires on national forests.

The ruling by Judge Joseph C. Spero orders the Six Rivers National Forest to prepare an environmental impact statement or environmental assessment for its Fire Management Plan, as required by the National Environmental Policy Act, or NEPA. It gives the agency 26 months to comply.

“The Forest Service’s long struggle to keep fire planning hidden from the public tells us there’s something they don’t want us to know,” said Scott Greacen, Public Lands Coordinator with the Humboldt County-based Environmental Protection Information Center (EPIC). “We’re hoping the Forest Service will take the court’s very clear order to heart and join all the other federal agencies that comply with NEPA when they write fire plans. By getting the facts and the choices out on the table, we believe we will find ways to achieve more effective fire protection for communities and forests, at less cost to the environment and to the taxpayer.”

A firefighters group also expressed strong support for the decision. “This is a huge opportunity for both the Forest Service and the public they serve,” said Timothy Ingalsbee, Executive Director of Firefighters United for Safety, Ethics, and Ecology (FUSEE). “Fire management plans can only benefit from including the best available science and informed public input, especially local community knowledge. Public involvement will not only help managers craft better fire plans, but will also help gain buy-in from communities on using wildland fire to protect communities and restore forests degraded by a century of fire suppression.”

“Across the west, we’re spending tens of millions of dollars every year on huge efforts to put fires out,” EPIC’s Greacen said. “But the Smokey Bear policy of treating all fires alike has caused significant harm to forest ecosystems, leading ultimately to bigger, hotter, and more destructive fires. We need to invest a small part of those resources up front to protect communities and create conditions in which fire can safely return to its essential role in maintaining ecosystem health.”

The case, the first such challenge to the Forest Service’s systematic refusal to analyze and disclose the potential impacts of its fire management policies, was filed in June 2002 by EPIC and the American Lands Alliance. In September 2003, the court ruled that the agency had violated the law, and gave the Forest Service 18 months to comply. Rather than do so, the Six Rivers NF wrote a whole new fire plan, which deleted all of the elements the court had pointed to as examples of decisions that trigger NEPA review. But the court concluded the new fire plan is as subject to NEPA as ever. “The new FMP, like the old one, is a programmatic document containing new fire management direction and therefore requires NEPA,” it wrote. (pp 5-6)

One aspect of the Forest Service’s attempt to avoid NEPA drew particular heat from the court and from observers. In its 2005 fire plan, the agency simply banned Wildland Fire Use (WFU), or prescribed natural burning, depriving Forest Service field staff of one of their most effective tools. The court wrote that it was “particularly troubled by the prohibition on WFU in the 2005 FMP,” concluding that the decision to ban wildland fire use was itself a decision triggering NEPA review. (p 4) Rejecting the claim that the earlier ruling had required the agency to withdraw WFU, the court wrote that “nothing in this Order or the Liability Order prevents the Forest Service from using WFU.” (p 6)

FUSEE’s Ingalsbee said the agency’s attempt to ban wildland fire use showed that the Forest Service would ignore current science and best practices to escape public scrutiny of its practices. “Under this plan, the Six Rivers NF became the only national forest in the country to ban wildland fire use. That’s a stunning reversal of decades of fire policy reforms, not to mention a violation of the Six Rivers’ own Forest Plan,” Ingalsbee said.

The court also pointedly noted that plaintiffs did not seek to enjoin the Six River’s clearly illegal 2005 FMP. (n 2 p 6) EPIC’s Scott Greacen explained that “the Forest Service has a bad habit of blaming conservationists when they run into problems that are really of their own making. While we urge the Six Rivers to use their third chance to come up with a Fire Management Plan we can all be proud of, we want to avoid even the potential appearance that complying with the law in this case would interfere with fire-control efforts during the coming fire season.”

The case is Environmental Protection Information Center v. United States Forest Service, No. C-02-2708 JCS. Copies of the compliance order, other briefing, and relevant documents are available on request.

Two similar cases challenging the Sequoia National Forest fire management plan, brought by environmental plaintiffs and the California Attorney General, are now in federal court.

So there you have it. A San Francisco-based Federal judge micro-managing the Six Rivers NF has determined that whoofoos are mandated by NEPA. His ruling, however, carries the implication that all National Forests are required by NEPA to have Let It Burn lightning fires in mid-summer.

Again, we are at a loss for adjectives to describe how horrible and forked up things are. We could, if we wanted too, connect the dots all the way back to convicted arsonist anarchist shit-throwers from Eugene. We could, if we felt like it, but we won’t. Compassion for your tender nature forestalls us. What difference does it make, anyway?