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Public Forests, Public Nuisance?

Lawson E Fite and James B Pollack


  • Explains how nuisance law provided a mechanism for individuals and governments to prevent or compensate for environmental harms.
  • Explores how an uncontrollable forest fire without proper precaution being taken to prevent its spread, in many states, is declared a public nuisance by reason of its menace to life or property.
  • Analyzes the hybrid nature of public nuisance.
Public Forests, Public Nuisance?
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The last few summers were among the worst wildfire seasons on record in the West. The 2021 Dixie Fire in California quickly became the second largest wildfire in California’s history. Wildfires killed an unprecedented number of sequoia groves on National Park land. Colorado experienced all three of its largest wildfires in state history in the same 2020 wildfire season. Oregon has experienced several 100-year fire events that burned over a million acres. Since 2020, thousands of giant sequoias have died in fires in the eastern Sierras, leading park officials to resort to extraordinary protective measures like foil wrapping. Vimal Patel, Wildfires in California Killed Thousands of Giant Sequoias, N.Y. Times (Nov. 20, 2021).

These rising wildfires threaten millions of people whose business, recreation, and enjoyment depend on healthy forests. The wildfires also brought with them new records for poor air quality. Images of San Francisco tinged in poisonous orange filled the news in September 2020. Portland experienced a record number of very unhealthy and hazardous Air Quality Index days in 2020 and 2021. The wildfires also cause enormous carbon emissions from a resource that has the potential to be the greatest carbon sink. The attraction of the forest has created its own difficulties, as one in three homes in the United States is now within the “wildland-urban interface,” or WUI, where the risk of fire is the highest.

The challenge of wildfires has only sharpened longstanding conflicts over how to best manage private, state, and federal forest resources. As demonstrated in April 2022, existing tools like prescribed fire must also be adapted for the era of climate change. The Las Dispensas prescribed fire was planned for about 1,200 acres but escaped due to unexpectedly dry conditions, burning over 300,000 acres in New Mexico and destroying over 900 structures. Sw. Coordination Ctr., SW Morning Situation Report (2022). The subsequent investigation report found every element of the plan consistent with policy, with disastrous results.

One underexplored legal aspect to this standstill may lie in the origins of environmental law itself: common-law public nuisance. In this article, we will explore the origins of public nuisance and how it may be used to address the management of fuel sources that can exacerbate wildfires whether they start naturally or from human sources.

The History of Public Nuisance

Many environmental law courses begin with the historical roots of environmental law in common law private and public nuisance. Before statutes like the Clean Air Act governed the air we breathe, nuisance law provided a mechanism for individuals and governments to prevent or compensate for environmental harms. These “ancient” roots include the first-known public nuisance statute, enacted by Richard II of England in 1389, which addressed “the pollution of waters and ditches lying near settlements, and provided criminal liability for the offender.” People ex rel. Gallo v. Acuna, 929 P.2d 596, 603 (Cal. 1997).

An activity constitutes a private nuisance if it is a substantial and unreasonable interference with the use and enjoyment of ones’ private property. Law school students across the country read cases like Boomer v. Atlantic Cement Co., 26 N.Y.2d 219 (1970), to learn the fundamentals of private nuisance. In that case, landowners with property adjacent to a cement factory sought damages and an injunction from the dirt, smoke, and vibrations emitted from the factory. Private nuisance provides a limited avenue for individuals to seek redress. Legal historians like Morton J. Horwitz in The Transformation of American Law (1977) have charted how judicial preference for damages over injunctions in private nuisance cases propelled the development of private nuisance law in the industrial era.

In comparison, an activity constitutes a public nuisance if it creates a substantial and unreasonable interference with a right common to the public, usually affecting the public health, safety, peace, comfort, or convenience. Law school students similarly read Georgia v. Tennessee Copper Co. to learn the fundamentals of public nuisance. 206 U.S. 230, 237 (1907). In that case, the state of Georgia sought to protect farmland and forestland destroyed by smelting fumes drifting across the Georgia-Tennessee state line. As the Supreme Court described, it is up to the sovereign alone to determine “whether [their] mountains shall be stripped of their forests and [their] inhabitants shall breathe pure air.” Id. Unlike private nuisance, the default remedy in public nuisance has been—and continues to be—injunctive relief. This distinction makes public nuisance a potentially powerful mechanism relating to threatened potential environmental harms.

Public nuisance is a flexible doctrine with ancient origins. Historically, it encompassed the criminal act of infringing on the rights of the Crown of England. Courts in the United States have interpreted this flexible doctrine to encompass a wide range of harms, including interference with public safety “as in the case of the storage of explosives, the shooting of fireworks in the streets, harboring a vicious dog, or the practice of medicine by one not qualified” or with “the public peace, as by loud and disturbing noises, or an opera performance which threatens to cause a riot[.]” Page Keeton et al., Prosser & Keeton on Torts § 90, at 643–45 (5th ed. 1984) (citations omitted). It has been used creatively throughout history to target environmental harms from the dumping of raw sewage, Missouri v. Illinois, 200 U.S. 496 (1906), to even the migration of invasive fish, Michigan v. U.S. Army Corps of Eng’rs, 667 F.3d 765, 773 (7th Cir. 2011). Recently, creative litigators have pled public nuisance theories related to gun violence, the opioid crisis, and climate change. See, e.g., City of Gary ex rel. King v. Smith & Wesson Corp., 801 N.E.2d 1222 (Ind. 2003); In re Nat’l Prescription Opiate Litig., No. 1:17-MD-2804, 2021 WL 4952468 (N.D. Ohio Oct. 25, 2021).

In the contemporary era of statutes, federal public nuisance has taken a backseat. Courts have interpreted statutes like the Clean Air Act and Clean Water Act to displace federal common law of public nuisance. See, e.g., Am. Elec. Pwr. (AEP) v. Connecticut, 564 U.S. 410 (2011) (climate change public nuisance suit dismissed based on displacement by Clean Air Act); City of Milwaukee v. Illinois, 451 U.S. 304 (1981) (public nuisance suit related to dumping sewage dismissed based on displacement by the Clean Water Act).

Public nuisance represents the foundational origin of environmental law, and frequently fills in the gaps where statutory environmental law has failed to address a particular issue. This aspect of public nuisance may provide new legal angles or create new legal risks arising from wildfires.

What Is Public Nuisance?

In keeping with its early origins and wide flexibility, public nuisance can be considered an equitable action in a suit for an injunction to abate the nuisance. In North Carolina ex rel. Cooper v. Tennessee Valley Authority, 515 F.3d 344 (4th Cir. 2008), the Fourth Circuit noted that “[t]he federal courts have long resolved nuisance claims, including public nuisance claims, through state-law equity actions, and they have used this power to regulate pollution and other noxious emissions.” Id. at 350. But public nuisance is also a tort. Restatement (Second) of Torts § 821B, cmt. b (1979). And for hundreds of years, a party specially affected by a public nuisance has been allowed to bring a tort action. Id. § 821C. Generally, “personal injury to the plaintiff or physical harm to [its] land or chattels” is sufficient to bring a public nuisance claim. Id., cmt. d.

The gravamen of a public nuisance claim is the existence of an unreasonable interference, so the intent of the interfering party is of little relevance. Thus, public nuisance theories have been applied to permit a claim against manufacturers of a polluting chemical. In re Methyl Tertiary Butyl Ether (MTBE) Prod. Liab. Litig., 175 F. Supp. 2d 593, 629 (S.D.N.Y. 2001) (holding that allegers stated claim for public nuisance where they asserted manufacturers “added MTBE to gasoline, marketed and distributed gasoline containing MTBE, all with the knowledge of the dangers MTBE poses to groundwater”). Moreover, courts have applied theories of public nuisance to a wide variety of conditions relating to unreasonable fire risk, where liability may be imposed for fire damage even where a third party intervened to start the fire. In such cases, public nuisance resembles environmental strict-liability statutes such as the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and an early CERCLA case described the cleanup as “eliminating a public nuisance.” United States v. Ne. Pharm. & Chem. Co., 810 F.2d 726, 734 (8th Cir. 1986).

Public Nuisance and Forest Management

Laws of forest management are of similar ancient origin, going back at least to the Forest Charter of 1217 issued by Henry III of England; Magna Carta was designated “Magna” to distinguish it from the shorter Forest Charter. See Paul Babie, Magna Carta and the Forest Charter: Two Stories of Property, 94 N.C. L. Rev. 1431 (2016). The Forest Charter “lays down a system of governance for the common stewardship of shared resources, specifically for the management of the commons by commoners and others for the preservation of the forests themselves.” Daniel Magraw & Natalie Thomure, Carta de Foresta: The Charter of the Forest Turns 800, 47 Env’t L. Rep. News & Analysis 10934, 10937 (2017).

In the modern era, the various federal environmental laws may be considered heirs of the Forest Charter. The National Environmental Policy Act, NEPA, has been declared as “our basic national charter for protection of the environment.” Habitat Educ. Ctr., Inc. v. U.S. Forest Serv., 673 F.3d 518, 533 (7th Cir. 2012) (quoting former 40 C.F.R. § 1500.1(a)). Specific statutes have established national forests “for outdoor recreation, range, timber, watershed, and wildlife and fish purposes,” 16 U.S.C. § 528 (Multiple-Use Sustained-Yield Act of 1960), and “to improve and protect the forest within the boundaries, or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber for the use and necessities of citizens of the United States,” 16 U.S.C. § 475 (Forest Service Organic Administration Act of 1897).

State courts and legislatures have long declared that maintaining a fire hazard is a public nuisance. An early Oregon law declared “[a]ny fire on any forest land in the state of Oregon burning uncontrolled and without proper precaution being taken to prevent its spread is hereby declared a public nuisance by reason of its menace to life or property.” State v. City of Marshfield, 259 P. 201, 201 (Or. 1927) (quoting former section 8960, Or. Laws). The statute assigned liability to anyone “responsible for either the starting or the existence of such fire.” Id. Similarly, an early Montana statute declared “[a]ny uncontrolled or spreading fire in forest material” to be a public nuisance and established a general duty to control forest fires on any property where they started or spread. First State Bank of Thompson Falls v. United States, 92 F.2d 132, 133 (9th Cir. 1937) (quoting section 2778.2, Revised Codes of Mont. 1935). See also Armstrong v. Lloyd, 321 S.W.2d 380, 382 (Ark. 1959) (quoting section 41-507, Ark. Stats.: “Any fire on any forested, cutover, brush lands or grasslands burning uncontrolled is hereby declared a public nuisance by reason of its menace of life or property.”).

The common law thus gives an adequate theoretical grounding for fire risk on publicly owned forests to be a public nuisance. The factual underpinnings are there as well; a 2015 study identified 100 million National Forest acres at high risk of wildfire—over half of the National Forest System. See G.K. Dillon et al., Wildland Fire Potential: A Tool for Assessing Wildfire Risk and Fuels Management Needs, U.S. Forest Serv. (2015). Over the past 20 years, Congress has directed federal land managers to reduce vegetative/biomass fuel sources on increasing portions of the land base, while also establishing new tools to streamline the environmental review process. The Healthy Forests Restoration Act of 2003 (HFRA) directed the U.S. Forest Service to implement hazardous fuels reduction projects on up to 20 million acres of federal forests. 16 U.S.C. § 6501. In the 2014 Farm Bill, determining that the existing tools were inadequate to the scale of the problem, Congress enacted a NEPA Categorical Exclusion for projects up to 3,000 acres in designated landscapes. Id. § 6591b. The 2021 Infrastructure, Investment and Jobs Act (IIJA) added more methods to expedite environmental review, while also increasing the pressure on the agency. It requires that the U.S. Departments of the Interior and Agriculture improve the fire condition of 10 million acres by 2027. Id. § 6592(b). Congress has also established “Good Neighbor Authority” under which states, counties, and Tribes may administer projects on federal forests in their locales. Id. § 2113a.

Nuisance as an Action in Equity or at Law

Where does this leave the community or private landowner when a fire spreads from a public forest to their community? The hybrid nature of public nuisance suggests two potential claims that might be raised.

On the equitable side, an action could be brought to require a government agency to abate the nuisance. A federal common law of public nuisance exists where it has not been preempted by a particular federal law that “speak[s] directly to [the] question” at issue. AEP, 564 U.S. at 424. Thus, the Seventh Circuit permitted suit against the U.S. Army Corps of Engineers under an allegation that the agency’s operation of waterworks was introducing invasive carp into the Great Lakes. Michigan v. Army Corps, 667 F.3d at 773. The court determined that congressional action on invasive species management had not yet risen to the level of a comprehensive, complex regulatory scheme such as the Clean Water Act and Clean Air Act, both of which the Supreme Court has held displace the federal common law. The court noted that it had “not discovered any case in which the Supreme Court has expressly authorized a public nuisance action against the United States in its sovereign capacity.” Id. But it also reasoned that “[w]e have moved far beyond the Divine Right of Kings and the concept that the Crown can do no wrong,” such that federal agencies can reasonably be subject to such suits.

The Seventh Circuit found that section 702 of the Administrative Procedure Act acted as a sufficient waiver of sovereign immunity. That section permits actions “seeking relief other than money damages,” 5 U.S.C § 702; thus, a federal common-law suit for injunctive relief would be within federal court jurisdiction. No courts have yet considered whether the increasingly detailed, and increasingly mandatory, statutory regime around National Forests would displace a common law claim. See United States v. Bd. of Cnty. Comm’rs of Cnty. of Otero, 843 F.3d 1208 (10th Cir. 2016) (declining to address arguments about public nuisance in New Mexico National Forests). The displacement question will likely depend on whether any law or policy speaks to government duties to adjacent landowners, rather than the extensive body of law that provides direction on management of federal timberlands.

None of the state common laws cited above would be available against a federal agency under the Supremacy Clause, absent a clear waiver. TVA, 515 F.3d at 350. At most, the state history informs federal common law.

The other avenue, which does incorporate state law, is a suit for damages under the Federal Tort Claims Act (FTCA). Historically, courts have held that issues around forest management and fire liability fall within the discretionary-function exception to the FTCA. The FTCA waives sovereign immunity for claims for damages arising from the “negligent or wrongful act or omission” of federal officers. 28 U.S.C § 1346(b)(1). This has been interpreted to exclude strict liability of any sort. Laird v. Nelms, 406 U.S. 797, 803 (1972).

The discretionary-function exception excludes liability for actions that are essentially policy choices, rather than a failure to exercise due care or to comply with a clear duty. 28 U.S.C § 2680(a). The key questions are whether discretion is involved, and if so, whether the action was “susceptible to policy analysis,” not whether policy analysis or discretion actually was employed. United States v. Gaubert, 499 U.S. 315, 325 (1991). Where “a statute or policy directing mandatory and specific action” exists, then the discretionary-function exception does not apply. Chadd v. United States, 794 F.3d 1104, 1109 (9th Cir. 2015). Nor will it apply if the alleged failure is simply a “failure to effectuate policy choices already made.” Nanouk v. United States, 974 F.3d 941, 950 (9th Cir. 2020) (citation omitted).

Although public nuisance as a tort has elements of strict liability, courts have generally treated nuisance claims as tort claims for purposes of the FTCA. In Bartleson v. United States, 96 F.3d 1270 (9th Cir. 1996), for example, the court affirmed treatment of property damage from a neighboring government artillery range as a continuing nuisance under the FTCA and California law. Bartleson did not address whether a particular activity is subject to the discretionary-function exception; that is a fact-intensive inquiry into whether the officer has discretion and then into what kind of considerations go into the exercise of that discretion. See Nanouk, 974 F.3d at 944–45.

A substantial body of case law, now including the Ninth, Tenth, and Eleventh Circuits, has concluded that government management of a wildfire or prescribed fire is generally subject to the discretionary-function exception. Most recently, the Eleventh Circuit affirmed dismissal of a complaint where a controlled burn escaped and damaged nearby land and equipment, noting the “myriad” factors that “come into play when dealing with an ongoing and quickly evolving forest fire.” Foster Logging, Inc. v. United States, 973 F.3d 1152, 1166 (11th Cir. 2020). Arguably, these cases are inconsistent with a Supreme Court decision that predates the development of the modern discretionary-function doctrine, Rayonier Inc. v. United States, 352 U.S. 315 (1957). Rayonier held that the FTCA could make the government liable “for the Forest Service’s negligence in fighting the forest fire if, as alleged in the complaints, Washington law would impose liability on private persons or corporations under similar circumstances.” Id. at 318. But for now, parties cannot recover damages based on federal fire management, even if negligent. Foster Logging distinguished Rayonier on the grounds that the Supreme Court decision did not address the discretionary-function exception, finding that it was inconsistent with modern discretionary-function doctrine in any event. At the time Rayonier was decided, the Eleventh Circuit noted, “immunity for the negligence of government employees performing discretionary actions was analyzed under a different framework than it is today.” Foster Logging, 973 F.3d at 1161.

Many western states own and manage substantial forest lands and have adopted the discretionary-function rule to varying degrees. In Washington, for example, sovereign immunity was generally abolished by statute, so discretionary immunity only exists for “high-level discretionary acts exercised at a truly executive level.” McCluskey v. Handorff-Sherman, 882 P.2d 157, 162 (Wash. 1994). Alaska has adopted the “planning-operational test” to “distinguish decisions that are protected by discretionary function immunity from those that are not.” Haight v. City & Borough of Juneau, 448 P.3d 254, 256 (Alaska 2019). Montana more broadly abolished sovereign immunity in its 1972 Constitution, Mont. Const. art. II, § 18, though it has legislatively extended immunity for fire suppression actions to local entities. Hyde v. Evergreen Volunteer Rural Fire Dep’t, 828 P.2d 1377 (Mont. 1992).

The discretionary-function cases do not address the situation where government failure to manage fuel loads on its property leads foreseeably to a fire that spreads to adjacent properties. Certainly, there is substantial policy judgment and discretion in forest policy as a whole. But each National Forest also has a detailed Land and Resource Management Plan, which can contain scores of mandatory actions. The same is true of forests on lands managed by the U.S. Department of the Interior, which must develop Resource Management Plans. State-managed forests have their own plans to comply with state law as well as applicable federal laws. With the direction in the IIJA to manage a certain number of acres by a date certain, one can imagine a scenario where a lengthy failure to act becomes a failure to effectuate policy choices already made.

The twin nature of public nuisance also creates pressures. If agencies successfully argue that federal common law injunctive suits have been displaced by Congress, it may become more difficult for them to claim that they retain discretion over any gaps in the statutes. This is because Congress would be deemed to have spoken directly to the issue.

As wildfires grow in severity due to climate change and other factors, public nuisance may become a tool for litigants affected by fires that can be connected to federal and state forest management. Recent events have shown the difficulty of managing such complex systems, meaning future disasters, and future claims, are all but inevitable.