By early August, the 2018 wildland fire season was already setting new records. The Mendocino Complex in Northern California had burned more than 400,000 acres and destroyed nearly 300 structures, making it the largest wildfire in California history. California’s Carr Fire, though smaller in size, had destroyed 1,599 structures and was responsible for the deaths of seven people. While media attention focused on fires in California, due largely to the human tragedy they inflicted, a similar number of large fires were burning across the Great Basin and the Northwest was experiencing almost three times the number of large fires as Northern California. The entire West seemed to be burning.
The record-breaking 2018 fire season came in the wake of the headline-grabbing fires in Sonoma and Napa counties in 2017, which burned more than 200,000 acres, destroyed over 6,000 structures, and killed 43 civilians. Christopher Reynolds, After the fires, the road back to Sonoma and Napa counties, Los Angeles Times (Jan. 14, 2018), available at www.latimes.com/travel/la-tr-napa-sonoma-20180114-story.html. That same year, the U.S. Forest Service spent over $2 billion on wildland fire suppression, though Congress had appropriated only $1.6 billion, forcing the Forest Service to borrow from other programs to cover suppression costs. Press Release, U.S. Department of Agriculture, Forest Service Wildland Fire Suppression Costs Exceed $2 Billion (Sept. 14, 2017), available at www.usda.gov/media/press-releases/2017/09/14/forest-service-wildland-fire-suppression-costs-exceed-2-billion. Billions more were lost as personal property burned, tourists canceled vacations, and widespread smoke inhalation resulted in additional medical expenses.
The high severity and costs of the 2017 and 2018 fire seasons were not isolated events, but data points to a clear trend. Regardless of how you view the problem, there is no question that the severity of wildland fire seasons has risen dramatically in recent decades, and there is nothing suggesting relief is on its way. California Governor Jerry Brown has called these extreme fires a “new normal,” part of a trend linked to a hotter climate. Climate change will increase the incidence of long- and short-term weather phenomena that lead to extreme fire behavior and high fire severity. These fires will increasingly have direct impacts on public land managers as well as private citizens, local governments, and businesses.
As a wildland firefighter turned lawyer, most of the discussion regarding fire management I hear involves two opposing narratives. One comes from an environmental camp arguing that the natural cycles of the forest have been thrown off by logging and fire suppression, and a reduction in human interference is needed. The opposing view argues that a decrease in resource utilization, principally timber harvesting and grazing, has resulted in overgrown forests primed to burn. Both narratives fail to appreciate the complexity of the problem. In reality, future legal changes must address two critical issues that are contributing to increased fire severity: first, the amount of wildland urban interface development in the United States, and second, a failure to manage public lands as traditionally done by Native Americans. These issues will require policy changes at every level of government. As a starting point, however, local governments can exercise more control over where and how people build, as well as assume more responsibility for fire suppression and education. The federal government needs to invest in a fuels management force that looks to manage public lands holistically, using fire as a tool and not simply as something that needs to be eradicated as a nuisance or tolerated as natural.
The Wildland Urban Interface
A common theme of most headline-grabbing wildfires is their association with an area that fire managers refer to as the wildland urban interface (WUI). WUI can be defined broadly as any area capable of carrying a wildfire that also contains a human-built environment. It often involves areas where publicly owned land abuts, or is intermixed with, privately owned land under the jurisdiction of cities or counties. These areas may contain isolated structures, such as a lone cabin, or a whole network of structures and infrastructure, such as a neighborhood with homes, roads, and power lines.
WUI is a critical piece of the fire puzzle, but one that is very difficult for fire managers to regulate because, unlike a national forest for example, no one agency or government is responsible for managing the WUI. Additionally, federal agencies struggle to address WUI because its very presence drives up the costs of preventive fuel treatments on adjacent federal lands and leads to additional fires from accidental human ignition. This interface area also makes on-the-ground firefighting difficult because fighting fire in the WUI is more complex, more dangerous, and more expensive than in a purely wildland environment.
The problems associated with WUI are growing because Americans love to live in the WUI. It is many Americans’ dream to live in a house surrounded by nature in a forest or sage brush plain with expansive views. Many Americans opt to live in neighborhoods or communities with easy access to hiking trails and the outdoors. This desire is only increasing, with an estimated 60 percent of new homes built since 1990 having been built in the WUI. In 2012, the U.S. Census estimated there were 46 million homes, 120 million people, and several hundred thousand businesses spread across 220 million acres of WUI. In the West, 12.3 million more homes are projected to be built in the WUI by 2030; in the Southeast, 4.6 million. See USDA Forest Service Fire & Aviation Management, Dept. of Interior Office of Wildland Fire, Quadrennial Fire Review (2014) at 28. Given this, it is not surprising that the average number of structures lost to wildfire has increased drastically in recent decades. In the 1990s, an average of 960 structures were lost per year. By the 2000s, that number had grown to 2,970. Id. at 26.
There are fairly straightforward ways to minimize wildfire risk in WUI communities, but unfortunately these recommendations often are ignored by private citizens as well as the legal institutions charged with protecting them. The probability that any one house will burn in a wildfire depends on the characteristics of the property itself. Houses catch fire either from radiation, heat from other fuels burning, or from firebrands—embers generated by the wildfire that then land on the house. This makes the distance from fuels and the flammability of the exterior materials of a house the two most important factors in determining if it will ignite in the event of a nearby fire. In one study, 85 to 95 percent of structures with both a nonflammable roof and over 33 feet of space between the structure and vegetation survived wildfires. Jack D. Cohen, Reducing the Wildland Fire Threat to Homes: Where and How Much?, USDA Forest Service, Pacific Southwest Research Station, Gen. Tech. Rept. PSW-GTR-173, Berkeley, Calif., Dec. 1999, 189–95. Despite these findings, surprisingly few regulatory agencies, either state or local, have incorporated such standards into their building codes.
Community fuel reduction efforts also play an important role in protecting at-risk homes. In the wildfire context, “fuel” means the vegetative matter that fires burn, and that in turn drives fire behavior. One of the best ways to control and reduce the effects of fires is to reduce the amount of these fuels in a designated area through prescribed burning, forest thinning, or other methods.
While these mitigation techniques are relatively straightforward, people who live in fire-prone areas commonly underestimate the risk of a fire impacting them. The belief that fire management agencies can stop fires before they reach communities or structures compounds this common, erroneous risk perception in the WUI. Despite the efforts of fire managers to educate the public, WUI communities often have unmitigated wildland fire risks, and many continue to expand in ways that increase wildfire risks. One of the best metrics for gauging how communities are addressing wildfire risks is the Firewise program. Firewise recognizes communities that have taken steps to educate members about wildfire mitigation and performed a minimum amount of community fuel reduction work. As of 2014, only 2 percent of communities in the WUI were Firewise; only 10 percent of communities had adopted a WUI building code; and only 5 to 8 percent of the total WUI acreage has received fuels treatment since 1999. Quadrennial Fire Review, supra at 29. In essence, we are building in a tinder box, and not taking widespread meaningful action to mitigate the risk or stop the practice.
California WUI Building Code and HFRA
Part of the problem is that local governments are incentivized to promote building––it raises the tax base and fuels the local economy. At the same time, building codes, zoning restrictions, and additional taxes for robust local fire resources can be politically unpopular. While local governments ignore fire risks, the federal government is left with the responsibility of suppressing the inevitable wildfire. Although the federal government often pays the price of improper WUI development, it has little power to rectify the problem. Additionally, to date, insurance companies have taken little action to incentivize homeowners to build more safely in WUI because of federal disaster assistance. When insurance companies do try to limit or withdraw coverage, states often fight back to protect their constituents. Currently, California is considering several bills that would affect insurance policies after declared disasters by extending the time homeowners have to rebuild their residence after a fire, extending the time homeowners have to sue their insurers after a fire, allowing homeowners to combine different types of coverage in their policies to recoup rebuilding costs, and automatically providing additional replacement cost coverage. See Press Release, Department of Insurance State of California, Wildfire Survivor Recovery Blueprint Legislative Package (Mar. 27, 2018), available at www.insurance.ca.gov/0400-news/0100-press-releases/2018/upload/Wildfire-Survivors-Blueprint-bill-summary-FINAL-03-27-18.pdf. These efforts are always going to be a day late because what is needed is a major overhaul in how we manage WUI development and maintenance, a task that inevitably falls on the local and state governments that to date have primarily sought to mitigate—as opposed to prevent—disasters.
To California’s credit, the state adopted a WUI building code in 2007 that is mandatory in certain high-risk areas. This code requires that homes built in areas identified by Cal Fire, the state fire agency, be constructed with certain fire-resistant exterior materials and will ensure that many of the homes rebuilt in the wake of the past two fire seasons will be much less likely to burn in future fires. See Cal. Code Reg. tit. 24, pt. 2, vol. 1, ch. 7A (2016). The code does not address existing homes, but a greater number of fire-resistant homes in the WUI should relieve some of the strain on firefighting resources during emergencies, benefiting the whole community.
Communities in the WUI can be protected by mitigating the fire risk on the “wild” part of the WUI, but the presence of the WUI itself makes this mitigation more expensive and time consuming. As discussed above, wildfire risk can be lowered by reducing the amount of “fuel” on the landscape. For decades, land managers have used both prescribed burning and mechanical treatments (logging, brush removal, etc.) to reduce these fuels. Prescribed burning is the less expensive option and has the benefit of removing fine dead fuels such as pine needles, which are often the primary carrier of wildland fires. While inexpensive, conducting prescribed burns near developed areas is often considered too risky––there is always a chance the burn could escape. Additionally, many communities are not excited by the prospect of lighting fires in their backyards or around their favorite hiking trails. As a result, generally more expensive mechanical treatments are necessary in WUI areas.
The Healthy Forests Restoration Act of 2003 (HFRA) sought to reduce risk to communities in the WUI, as well as “protect, restore, and enhance” forest ecosystems, primarily through fuel-reduction projects. HFRA requires agencies to spend a certain percentage of fuel-reduction funds on WUI communities. To streamline the National Environmental Policy Act (NEPA) process for these projects, HFRA limits the number of alternatives agencies must consider; requires specific notice, comment, and collaboration requirements; and creates a limited avenue for administrative review. 16 U.S.C. §§ 6512–16. The Consolidated Appropriations Act of 2018 modifies HFRA to provide additional opportunities for agencies to streamline the NEPA review process with “Wildfire Resilience Projects.” These projects are again prioritized in the WUI, though the Forest Service is not required to spend a certain percentage of funding on them. See Consolidated Appropriations Act of 2018, Pub. L. No. 115–141, div. O, 715–17.
While these programs increase efficiency for projects directed at high-value resources, they also perpetuate the subsidization of fire protection in the WUI. Agencies are forced to spend money on more expensive WUI projects instead of projects that could reduce fire risk and restore ecological balance to larger areas of wildlands. In essence, we are paying more to protect small pockets of WUI while most of our wildlands are ignored and become more dangerous. This is shortsighted even for the WUI because once fire behavior grows extreme enough on these ignored wildlands, the fire can create its own weather and overcome the effects of fuel treatments and containment efforts made to protect WUI areas. It would be better to have large areas where extreme fire is less likely than small strips of fuel treatments that can be overcome by an extreme fire. Additionally, fuel treatments on federal lands still fail to address the most important areas in the WUI: the immediate surroundings of individual homes on private land. Thus, despite increased focus on these treatments, these policies likely will achieve few of their intended results.
As one would expect, human-started wildfires also are concentrated in the WUI. Humans were responsible for starting 84 percent of all wildfires between 1992 and 2012. These fires accounted for 44 percent of total acres burned during that time. Jennifer K. Balch et al., Human-started wildfires expand the fire niche across the United States, National Academy of Sciences (Mar. 14, 2017), available at www.pnas.org/content/114/11/2946.full. Intuitively, human ignitions are most likely to occur where there are more humans, i.e., in areas with more WUI. The fire season caused by human-ignited wildfires is three times longer than that for lightning-ignited fires, as humans artificially redistribute fire ignitions to times when weather is hot and dry, but lighting is lacking. This longer season results in an additional strain on limited resources, and more severe fires.
Liability for human-started wildfires is an increasingly important legal issue across the West, as public and private parties seek restitution for fire-related costs. For example, a teenager responsible for starting the Eagle Creek Fire in Oregon by throwing a firecracker was ordered to pay $36 million in restitution, mostly to the State of Oregon and the Forest Service. Amelia Templeton, Eagle Creek Fire Perpetrator Ordered to Pay $36.6 Million, Oregon Public Broadcasting (May 21, 2018), available at www.opb.org/news/article/eagle-creek-fire-wildfire-restitution-oregon-columbia-river-gorge/.
Fire liability has implications for more than just careless parties. Fire investigators found that power lines owned by Pacific Gas and Electric caused several highly destructive fires in California in 2017. California law assigns liability to an electric utility if their equipment causes a wildfire, regardless of whether the company was at fault. See Aetna Life & Cas. Co. v. City of Los Angeles, 170 Cal. App. 3d 865, 873 (1985). While plaintiffs must show cause in a reverse condemnation action, no breach of duty is required to establish liability. Id. Proposed California Senate Bill 901 would adopt a reasonableness standard for determining liability to protect utility companies from future crushing liabilities. Countless other issues are likely to arise as fingers are pointed both at “fire starters” as well as property owners whose land-management practices are blamed for contributing to fires.
WUI alters and complicates firefighting strategies, and several studies have linked the presence of WUI with increased firefighting costs. In the WUI, firefighters are forced to devote resources to protecting structures, which pulls these resources away from directly suppressing the fire. The complexities of fighting fire in WUI areas also increases danger to the firefighters who are assigned to fight it. WUI fires also put public and political pressure on fire managers to do everything possible to suppress the fire, leading to heavier use of less cost-effective resources, such as airtankers and helicopters. Despite all these efforts, in extreme weather there is never a guarantee that firefighters can stop a fire before it reaches structures. The takeaway for policy makers is that waiting until a fire has started to protect homes is the least cost-effective choice, and one that in reality we do not have.
Current Fire Policy Debate
The impacts of increased WUI often are left out of the current discussion surrounding fire policy and fire costs. The public debate around fire too often focuses on the past and present policies of the federal government––in particular, its early efforts to increase timber production and eradicate wildfire on public lands for most of the twentieth century and its shift over the past 30 years to decrease logging while allowing some fires to burn. Regardless of how one views these policies, almost everyone agrees that they have resulted in fuel-laden forests that are primed to burn.
Some observers call for a return to “natural” fire regimes to solve the problem of excess fuels created by these policies. They argue that the exclusion of fire has led to excess fuels in federally managed forests and attack continued suppression as wasteful and unnecessary. Others pin the blame on the increased exclusion of resource extraction activities by environmental policies. These groups call for an increase in logging and grazing to reduce fuel levels.
But neither uncontrolled “natural” burning nor increased resource extraction will deliver fire-resistant forests. First, the fire regime that created the forests Europeans encountered in the American West was not natural, it was managed by Native Americans. Nor was federal fire policy the only, or even predominant, agent of change in western forests. Second, the resource use argument ignores important economic and ecological considerations that would prevent it from succeeding.
The idea that we can just return to a natural fire cycle is flawed because it ignores that many of the pre-European fires were not natural. The displacement of Native Americans—who regularly set fires to manage the landscape—is perhaps the biggest undiscussed reason for a shift in the landscape. The “natural” fire regime that many highlight as the solution for our forests fails to acknowledge that the natural balance was highly influenced by humans. What advocates should be seeking is not a return to a “natural” fire system, but a return to a fire system that is properly managed by man to create resilient wildlands, including healthy, fire resistant forests.
This will be extremely difficult in many areas because Europeans stopped this regular burning and began altering the landscape in ways that increased fire risks. This included overgrazing, which excluded grass fires, allowing for the encroachment of junipers across large areas and exploitive logging, which removed fire-resistant old growth forests. The end effect is a cycle where the burns that do occur are more severe and more detrimental to the environment. Additionally, the WUI has made regular burning nearly impossible in many areas. Nevertheless, management agencies must be empowered to utilize fire more effectively, and more often, as a tool to craft healthy and fire-resistant forests. What we cannot do is continue to allow fuels to build up with the hope that a “natural” fire will come along and restore harmony.
The idea that increased timber harvesting and grazing will solve our fire problem also is incorrect. Timber harvests and thinning could be beneficial in some areas. But even if current environmental regulations were removed, it would not be economical to log many of the areas that currently have hazardous amounts of fuels. Grazing is incapable of eliminating woody fuels. An example of how greater marketization of public land would fail to reduce fire risk is found in the Great Plains. There, despite the absence of federal land management policies that have reduced use, the number of fires and acres burned have tripled and quadrupled in the past three decades.
This article does not argue that resource use should not occur on public lands or that natural fires should not be allowed to burn when appropriate, but rather that these two “solutions” will not solve our wildland fire problems. What is needed is the continued suppression of potentially damaging wildfires, coupled with management actions encouraging the spread and development of fire-resistant ecosystems over large areas of the West.
This development will need to mimic the Native American techniques and practices that led to the fire-resilient landscape first encountered by European explorers. Unlike lightning and unintentional human starts, the ignition of prescribed burns can be timed with weather conditions that are most likely to lead to desired outcomes. Prescribed burns are the most effective way of reducing fine fuels in forests and have the added benefit of returning nutrients to the soil. However, prescribed burning does carry risks—for example, weather predictions are never perfect—that make it impracticable for WUI areas. Those areas will need extensive mechanical treatments to reduce their fire risk.
Such an effort will require a shift in cultural attitudes toward fire and a greater public commitment to managing public lands. The Consolidated Appropriations Act of 2018 provided $3.8 billion for addressing wildfires on public lands. The Act provides $948 million for the Department of the Interior (DOI) for “fire preparedness, fire suppression operations, fire science and research, emergency rehabilitation, fuels management activities, and rural fire assistance.” Of that amount, $184 million is set aside for fuels management. The Act gives the Forest Service $2.88 billion for “forest fire presuppression activities on National Forest System lands, for emergency wildland fire suppression on or adjacent to such lands or other lands under fire protection agreement, and for emergency rehabilitation of burned-over National Forest System lands and water.” From the general Forest Service budget, which totals $1.923 billion, an additional $430 million is set aside for hazardous fuels management. This provides a total of $614 million for hazardous fuels projects and $3.644 billion for fire suppression in both the DOI and Forest Service. Consolidated Appropriations Act of 2018, Pub. L. No. 115-141, div. G, 306–07, 324–26 (Mar. 23, 2018). This is a good development, but only a partial fix because it fails to address the true amount of fuels reduction work that is needed.
The Government Accountability Office estimated in 1999 that it would cost $725 million annually over 16 years to reduce hazardous fuels in all the Forest Service’s high-risk acres. Since that time, the Forest Service has increased the number of acres it considers to be at high-risk. Ross Gorte and Kelsi Bracmorte, Forest Fire/Wildfire Protection, Congressional Research Service (2012), at 22–23. Further, the cost of treatment used in the estimate, $300 per acre, may be unrealistically low. Treatment of all high- and moderate-risk acres on both Forest Service and DOI lands would cost an estimated $69 billion dollars over 16 years, or $3.4 billion annually. After initial treatment, some ecosystems would need retreatment as often as every 5 to 35 years. Id.
Such a shortfall cannot be overcome simply by quick fixes such as loosening NEPA requirements, a single appropriations bill, or voiced commitment from agency officials. This amount of work requires a dedicated fuels-management force. While extending the seasons of current fire resources—many of whom work a six- or nine-month season—could cover some of the necessary fuels reduction, lengthening fire seasons will make the current force less available during traditional “off” seasons. Further, winter conditions in much of the West preclude or at least hamper prescribed burning and other fuel-reduction activities. It will be necessary to have these crews available during spring, summer, and fall to carry out fuels-reduction projects in favorable conditions and return landscapes where low intensity fire is the norm to the West. This return would benefit resource users because it would protect commercial timber and create open forests that are more conducive to grazing. It would be a win for environmentalists and recreational users who value healthy forests. Along with sensible development in the WUI, it also will provide the most protection we can afford to communities facing the growing threat of wildfire.