Fighting Fire with Fire: How NEPA’s Emphasis on Risk Prevents Prescribed Burns and Intensifies Wildfire

Introduction

We live in an era of megafires—a man-made pyrocene. Wildfires are getting bigger and more intense thanks to climate change¹ and expanding human activity in forests.² These more severe fires are unsurprisingly also more destructive: a greater number of homes are at risk, and fast-moving fires leave less time to evacuate.³ Wildfires are a part of nature. But high severity fires can devastate ecosystems by polluting water,⁴ causing massive landslides,⁵ and leading to species extinction.⁶ The emotional and physical impacts of forest fires on communities are immense. Fires can raze whole towns within hours,⁷ leave lungs permanently damaged from smoke,⁸ and instill deep feelings of fear and insecurity.⁹ The socially marginalized often bear the brunt of this damage. People of color,¹⁰ low-income neighborhoods,¹¹ and indigenous communities¹² all suffer the impacts of fire at higher rates than their white and wealthy peers.¹³

Extreme fires are both a harbinger and accomplice of climate change. Wildfire’s expansion in intensity and scale is proof of the arrival of a new climate.¹⁴ But forest fires also contribute to climate change. Forests are important carbon sinks because plants sequester greenhouse gases through photosynthesis.¹⁵ When forests burn, they release that trapped carbon into the atmosphere.¹⁶ And the more intense the fire, the more carbon dioxide the fire releases.¹⁷

Prescribed burns—fires intentionally set by forest managers, also called controlled burns—may be our best weapon against destructive wildfires. Controlled burns result in less frequent and less intense wildfires.¹⁸ They decrease the amount of biomass left in a forest to burn in a wildfire and clear woods of dangerous detritus that can lead to crown fires.¹⁹ In fire-prone forests like those in the American West and Southeast,²⁰ prescribed burns also restore ecosystems²¹ and help forests store carbon.²²

Controlled fires are no silver bullet. Serious dangers are associated with any forest fire. Smoke is smoke; it harms lungs whether it comes from a planned or unplanned fire.²³ Moreover, it is impossible to fully control fire. There is always some risk that a controlled burn could become uncontrolled.²⁴ The consequences of an out-of-control prescribed fire are no less than any other wildfire, as demonstrated by the Cerro Grande Fire of 2000.²⁵ Initially set as a controlled burn on the Bandelier National Monument in New Mexico, high winds picked up the flames, resulting in a 43,000-acre fire that tore through the town of Los Alamos.²⁶ The damage to the town and its infamous National Laboratory cost one billion dollars.²⁷ Over four hundred families lost their homes.²⁸ Despite the dangers, ecologists, foresters, and politicians have called for an increase in prescribed burns.²⁹ They argue that without burns, wildfires would be even more unpredictable and uncontrollable.

Today, foresters widely accept prescribed burning. In the United States, forest managers treat over ten million acres a year with prescribed fire.³⁰ Two regions of U.S. forests account for the vast majority of controlled burns: the West and Southeast.³¹ Most large and destructive wildfires occur in the West,³² and even most land managers see forest fires as a Western issue.³³ Over the past decade, managers have significantly increased prescribed burning in the West.³⁴ Yet, a mere twenty-two percent of America’s prescribed fires are set west of the Mississippi.³⁵ The Southeast accounts for a whopping seventy percent.³⁶

This paper addresses the paradox of the West’s missing controlled fire. If prescribed burns are so effective and so desperately needed, why are there so few Western prescribed burns? I argue that it is the result of a combination of two forces: first, the impact of colonial migration on forest ownership and local understanding of fire; and second, the National Environmental Policy Act (NEPA). Due to the uneven pattern of land expropriation, Western forests are largely owned and controlled by the federal government. Federal forest managers must analyze all actions for potential environmental impacts under NEPA. Like the Clean Air Act (CAA) and Endangered Species Act (ESA), NEPA is one of the great American environmental statutes of the 1960s and 1970s. Unlike either CAA or ESA, NEPA is procedural rather than substantive. Instead of establishing levels of protection, it creates procedural hoops that agencies must jump through to review the potential environmental impacts of federal actions. NEPA’s one-way procedural nature makes it difficult and expensive to take any action that might have serious consequences, like controlled burns, no matter how dangerous not taking that action could be. Paired with inadequate funding and local communities’ prescribed fire skepticism, NEPA ties the hands of most Western forest managers and stops them from enacting much-needed burns.

This paper is not unique in critiquing NEPA.³⁷ The statute has been a lightning rod of controversy since its inception.³⁸ Free-market proponents like the Property and Environment Research Center and the Heritage Foundation have criticized NEPA as slow and inefficient.³⁹ The Trump administration spent its final months in office attempting to gut the statute, in part by preventing agencies from considering climate change in their analyses.⁴⁰ Many—although certainly not all—of these critiques come from proponents of industry who see NEPA as overly protective of the environment. This paper takes the converse view: NEPA harms ecosystems by keeping much-needed fire out of forests and grasslands.

Part I of this article lays out the history of fire on North America, from early fire management by indigenous people to the arrival of large-scale fire suppression in the twentieth century. It traces the movement of white settlers across the continent to show how different forms of colonization between East and West resulted in largely privately owned forests in the Southeast and publicly owned woods in the West. It also tracks how the attempted removal of native tribes by the U.S. government paralleled changing forms of fire management practices. Part I culminates in a comparison of forest ownership and fire management in the Southeast and West today.

Part II provides a brief overview of NEPA’s history, the current NEPA system for analyzing agency decision-making, and its success in preventing environmental degradation.

Part III dives into how NEPA’s framework prevents controlled burns. It focuses on the inverted funding structures within agencies that result from NEPA review costs and how NEPA’s mandated stakeholder involvement disempowers local communities and leads to breakdowns in communication with the public. It reviews how NEPA drives agency perceptions of science and incentives around risk. Finally, it explores how these problems reveal NEPA’s flawed understanding of the relationship between humans and nature.

Part IV explores a menu of options to increase Western prescribed burns, ranging from increasing funds to reworking NEPA’s participation mechanisms to restoring tribal control of public lands.

I. A History of American Fire

In The Pyrocene, environmental historian Stephen J. Pyne describes three distinct forms of fire on earth: first-fire, second-fire, and third-fire.⁴¹ To Pyne, “First-fire is the fire of nature,” the early era on earth when fire first emerged, kindled by lightning and fed by the fuel of early land plants.⁴² This phase began roughly 420 million years ago and continued until humans learned to control fire.⁴³ Second-fire is the fire that swept across the globe with the expansion of our species roughly two million years ago.⁴⁴ It included unintentional wildfires caused by untended kitchen hearths and the intentional setting of landscapes on fire—burning forests to clear underbrush to improve hunting conditions or slash-and-burn agriculture to remove weeds and pests.⁴⁵ In the past two centuries, second-fire has given way to a new form of human flame. “Third-fire burns lithic landscapes no longer bounded by such ecological limits as fuel, season, sun, or the rhythms of wetting and drying.”⁴⁶ Through coal, oil, gas, and technology, humans have begun to remove traditional fire from our homes and landscapes: we replaced the hearth with the stove and forest fires with clearcuts. These three forms of fire correlate to distinct phases of American fire: pre-human fire; indigenous and early colonial fire; and post-industrial fire suppression.

A. Fire in pre-colonial America

Like roughly forty-six percent of global ecoregions,⁴⁷ America’s Southeast and Western forests evolved with fire.⁴⁸ Forests in both regions are largely “fire-dependent,” meaning fire is “fundamental to sustaining native plants and animals.”⁴⁹ Fire has been a perennial presence in American coniferous woods, from the Florida sand pine scrub to the Cascade Mountains’ leeward forests.

These fire-dependent ecosystems predate humans: forests first burned in fires started by lightning or by outlier events like volcanic eruptions and coal seam fires.⁵⁰ But the first-fire of lightning was eventually replaced by the second-fire of indigenous fire. When humans migrated to the Western Hemisphere roughly 14,000 years ago, they brought fire with them.⁵¹ The paleological record proves the impact of these first Americans. From coast to coast, fire quickly outpaced the frequency of prehistoric burning regimes.⁵² Native Americans had a sophisticated understanding of fire as a management tool; they “used fire for diverse purposes, ranging from cultivation of plants for food, medicine, and basketry to the extensive modification of landscapes for game management or travel.”⁵³ Indigenous tribes on both sides of the continent used fire specifically to manage forests.⁵⁴ They set fires to revitalize agricultural conditions, drive game, improve travel, and generally “manipulate and eventually create local environments of their own design.”⁵⁵ Fire became part of both the physical landscape and tribal tradition and culture.

B. Pre-industrial colonization and regional division

The arrival of white settlers in the Americas in the fifteenth and sixteenth centuries began slowly disrupting existing fire regimes. This disturbance varied regionally. In the southern British colonies, use of prescribed fire remained widespread.⁵⁶ Native people continued to practice controlled burns for land management after the initial period of white settlement.⁵⁷ When President Andrew Jackson and the American government forcibly and violently removed Southeastern tribes from their lands in the 1830s and 1840s,⁵⁸ members of the tribes took their fire practices with them, bringing controlled burning to new settlements in Oklahoma.⁵⁹ But the Trail of Tears did not end intentional fire in the South; the white settlers who benefitted from the land grab readily continued the tradition.

“[I]n the South, woods burning was a widespread practice from the outset” of white colonization.⁶⁰ Unlike New England’s settlers, who mostly came from cities or areas of Europe with fire-sensitive forests, Southern colonists were mainly from rangeland and rural areas, where fire had remained a regular part of agriculture throughout the early modern period.⁶¹ These fire-accustomed settlers combined their own fire traditions with those of Native Americans.⁶² They set fires to reduce pests like ticks and rattlesnakes and to limit wildfires.⁶³ After the Civil War, Black sharecroppers and tenant farmers continued to burn fields.⁶⁴ Even wealthy northerners who flocked to the postbellum South to build hunting retreats learned that prescribed burns were often necessary to promote the prized bobwhite quail.⁶⁵

White settlers who colonized the American West had a different approach to fire. Unlike in the Southeast, Western fire remained a tool used almost exclusively by indigenous tribes. A survey of fires in the interior West before 1900 estimates that eighty-nine percent of fires with clear attribution had been set by Native Americans.⁶⁶ The topography of the West may have contributed to colonists’ aversion to fire. The mountainous, arid, and elevated terrain often proved more conducive to grazing livestock than growing crops.⁶⁷ Western settlers, seeking to establish a cattle economy, mistakenly assumed fires destroyed the rangeland and grass needed to feed horses and cows.⁶⁸ These settlers may also have been impacted by racism towards and fear of the tribes that remained a powerful force throughout the region.⁶⁹ These settlers viewed fire as dangerous, a tool of Natives. They turned to the federal government to attempt to extirpate both.⁷⁰

C. Expropriation of Western lands

The development of federally managed public lands likely aided the removal of fire from Western landscapes. From the early days of European colonization and throughout the early American Republic, land was a commodity to be privatized: any territory claimed by a government not already inhabited by other white settlers was presumptively up for sale. Land in the public domain was not perceived as eternally so; while some small percentage might remain in the commons, the rest would eventually be divided up among individual landowners. In the mid-nineteenth century, the Preemption and Homestead Acts encouraged westward white settlement by promising government-owned property to any adult willing to “settle[] and cultivat[e]” the land.⁷¹ Statutes like the Timber Culture Act⁷² and the Timber and Stone Act of 1878⁷³ amended the Homestead Act to center forests as a new driver of westward expansion but maintained the same fundamental structure for private acquisition, in ways that often resulted in land grabs by corporations and wealthy individuals.⁷⁴ By the turn of the century, a very different approach to land management had supplanted homesteading and fundamental understandings of how land should be used and divided.

Towards the end of the nineteenth century, Congress passed several laws fundamentally changing the government’s relationship with the land it owned. In 1872, Congress established Yellowstone National Park.⁷⁵ In 1891, Congress passed the General Revision Act, repealing the Timber Culture laws and giving the President the power to “set apart and reserve” any forest on public land as a “public reservation.”⁷⁶ It was soon followed by the Transfer Act of 1905,⁷⁷ which handed over public forest reserves to the nascent Forest Service, and the Weeks Act⁷⁸ that authorized and funded federal agencies to purchase private lands to protect watersheds and expand national forests. These laws mark the beginning of public lands as Americans broadly think of them today—unsettled areas preserved for the use and enjoyment of all, no longer lots waiting to be parceled off into private property.

This new policy of preserving public land created a regional imbalance. At the turn of the twentieth century, the West was sparsely populated by white settlers.⁷⁹ Montana, Washington, Idaho, Wyoming, and Utah had only recently been admitted to the union, with New Mexico, Arizona and Alaska still territories. But in the densely settled East, very little land was left in the public domain to be preserved. The numbers are hardly close: roughly three percent of Alabama is federal land,⁸⁰ while more than eighty-five percent of Nevada is federal.⁸¹ As the country industrialized, Western lands managed by the federal government lost their fire, while private Southeastern forest owners kept the flame alive.

D. Industrialization and fire suppression

In the late nineteenth century, foresters began a crusade against controlled burns. In the West, where the federal government was just beginning to think about large-scale land management, its earliest actions suppressed fire in all its forms. In the Southeast, industrialization brought dramatic changes to fire regimes that empowered public-land managers to temporarily stamp out the long tradition of prescribed burns. In both regions, the devastating wildfires that resulted seemingly dealt a coup de grâce for intentional fire on American landscapes.

Throughout both Native American burning and early European settlement, the general quality of Southern fires remained the same: people in both eras set relatively low-intensity scrub fires.⁸² Things began to change in the late 1800s when industrialization brought new industries to the South.⁸³ Timber, railroad, and mining corporations replaced livestock grazing as the primary use of land.⁸⁴ New logging practices were particularly pivotal. Commercial timber operations resulted in large piles of woody debris called slash.⁸⁵ Loggers would frequently burn the slash, creating large treeless meadows through intense, stand-replacing fires.⁸⁶ Even if not deliberately burned, abandoned slash piles would dry out and catch fire from a passing spark, resulting in vast and destructive wildfires.⁸⁷

Western forests experienced an even more devastating series of conflagrations in the early twentieth century. Perhaps most famous was the Great Fire of 1910, when hurricane-force winds intensified hundreds of smaller fires into a deadly inferno.⁸⁸ Over eighty-five people died, seventy-eight of them firefighters.⁸⁹ The fire razed entire towns, and smoke even reached New England.⁹⁰

The Northern Rockies fires of 1910 left a burned swath across the memory of a generation of foresters, not unlike the effects of the Great War on the intellectual class of Western civilization. In the summer of 1910, 5 million acres burned on the national forests, 3 million in Idaho and Montana alone.⁹¹

Into this new, seemingly more combustible world stepped the newly minted United States Forest Service (USFS). Gifford Pinchot, the first head of the service, was an early advocate against fire.⁹² Under his leadership, “[f]ire suppression became the doctrine and leading policy of federal agencies.”⁹³ The Forest Service funded psychological and sociological research into the motivations of intentional fire-setters, painting an unflattering portrait: “the researchers concluded that underlying reasons and motives for woods burning included social isolation, boredom, ritualistic tradition . . . frustration of a culturally and economically disadvantaged group, alienation, and creation of jobs in fire suppression.”⁹⁴

USFS outlined its opposition to fire in a series of regulations in the early twentieth century that emphasized “early detection and suppression.”⁹⁵ The first USFS manual, published in 1905, stated in no uncertain terms that “Officers of the Forest Service, especially forest rangers, have no duty more important than protecting the reserves from forest fires.”⁹⁶ This “use book,” as agency staff called it, contained regulations like “REG. 62. A fire must never be left . . . before it is completely extinguished,” and “REG. 63. Lumbermen . . . are cautioned against making dangerous slashing.”⁹⁷ It emphasized that punishment for unlicensed prescribed fires could lead “in aggravated cases, to criminal prosecution.”⁹⁸

USFS repeatedly doubled down on suppression. In 1926, the agency established a policy requiring staff to control all wildfires before they reached ten acres in size.⁹⁹ USFS began a mass effort to educate the public about the dangers of forest fires, culminating in the creation of Smokey Bear.¹⁰⁰ In 1935, after another spate of colossal wildfires, the agency adopted the 10 a.m. policy: “[A]ll fires were to be controlled by 10 a.m. of the day following discovery.”¹⁰¹ The 10 a.m. policy remained in effect until the 1970s, with devastating consequences.¹⁰² As one pair of USFS researchers described it, “[F]uel loads have exceeded their historical range in many forests, important ecological changes have occurred, wildfires have become more difficult and expensive to control, and homeowners have been led to expect aggressive wildfire suppression, irrespective of costs.”¹⁰³

E. The return of controlled fire

Fire could not be kept from Southeastern or Western landscapes forever. In the late twentieth century, foresters finally began to understand and encourage prescribed burning. But the renaissance of American fire progressed more quickly in the Southeast than in the West, driven by disparate cultural attitudes towards fire and levels of private ownership.

Fire suppression in Southern forests was a passing trend. Southern public land managers banned prescribed burns.¹⁰⁴ But private landowners continued setting controlled burns for timber, agriculture, and grazing throughout the twentieth century.¹⁰⁵ By the 1930s, advocates, including the ornithologist Herbert Stoddard, were preaching the gospel of fire.¹⁰⁶ Scientific publications and presentations by Stoddard and foresters like Herman H. Chapman emphasized the benefits of fire.¹⁰⁷ By the 1940s, even public forests in the South began to return to prescribed burns.¹⁰⁸ The return of fire was not immediate: large federally managed areas like the Okefenokee Swamp held off controlled burning until the 1970s.¹⁰⁹ Today, controlled fire is a routine part of Southern forests, public and private alike.¹¹⁰

Western fire has taken far longer to reignite. Federal management of Western forests is the likeliest cause of the delay. This governmental control is a regional anomaly that reflects the East/West divide in public land management. While the U.S. federal government controls thirty percent of American forests nationally,¹¹¹ roughly seventy percent of Western woods are public.¹¹² Only nineteen percent of Southeastern forests are public.¹¹³

This ownership split created regionally different fire timelines. Publicly owned forests took longer to reclaim fire than private woods. Federal agencies did not begin to accept the importance of prescribed burns until the late twentieth century. One early attempt was the 1963 Leopold Report by an Advisory Board to the Department of the Interior.¹¹⁴ The report extolled the virtues of prescribed burns, calling them “the most ‘natural’ and much the cheapest and easiest” form of vegetation management, and portrayed fire as a central part of prehistoric American landscapes.¹¹⁵ The report also objected to the “overprotection” of forests “from natural ground fires.”¹¹⁶ In the years that followed, the National Park Service attempted to reverse course. In 1964, Kings Canyon National Park conducted trial burns.¹¹⁷ In 1967, the National Park Service (NPS) officially revised its suppression policy:

Fires in vegetation resulting from natural causes are recognized as natural phenomena and may be allowed to run their course when such burning can be contained within predetermined fire management units and when such burning will contribute to the accomplishment of approved vegetation and/or wildlife management objectives.¹¹⁸

On paper at least, by the turn of the twenty-first century, fire was accepted as a potential forest management tool, one with the express support of Congress.¹¹⁹ Yet Western forests continue to have few prescribed fires. Even when agency staff is eager to use controlled burns, NEPA blocks their path.

II. An Overview of the National Environmental Policy Act

Understanding the larger framework of NEPA helps explain its impact on prescribed burns. NEPA land management actions are lightning rods for long, drawn-out fights involving natural resource extraction industries, environmental groups, states, local communities, and tribes.¹²⁰ Litigation can bog down agency action for years, and the analysis conducted for the NEPA process may ultimately have little impact on the agency’s decision.¹²¹ Yet NEPA remains a powerful force for environmental protection. This section briefly reviews the history and doctrine of federal land management under NEPA and its successes in protecting communities and ecosystems from environmental degradation.

A. NEPA’s origins and history

In the late 1960s, Congress launched an investigation into the impacts of urbanization and industrialization on Americ’s physical environment. The final report concluded that mismanagement by federal agencies was causing more environmental degradation than it prevented.¹²² In response, Congress passed NEPA in 1969.¹²³

NEPA is a short yet sweeping statute. The enacting bill, only five pages long, is often called “environmental law’s Magna Carta” and is even compared to the Constitution.¹²⁴ Congress intended NEPA to “promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man.”¹²⁵ It creates opportunities for citizen and non-federal government involvement in federal decision-making through “NEPA analysis.”

NEPA requires agencies to analyze the environmental impacts of their decisions, directing federal agencies to prepare “a detailed statement” for every “major Federal action.”¹²⁶ Courts have understood NEPA analysis to have two goals: (1) to force agencies to include a review of environmental impacts in planning for a proposed action; and (2) to inform the public of the review itself and the potential impacts.¹²⁷ NEPA also created the Council on Environmental Quality (CEQ).¹²⁸ CEQ advises the President on environmental policy broadly and is responsible for implementing NEPA and promulgating additional NEPA regulations.¹²⁹

B. Current NEPA framework for federal land management

CEQ regulations structure NEPA review into three potential levels of analysis.¹³⁰ The most detailed and procedurally complex form of NEPA analysis is an Environmental Impact Statement (EIS). An EIS is triggered if the proposed action is likely to have a “significant” environmental impact. In these cases, the acting agency must publish several rounds of documents describing its proposed project and analyzing it according to a range of indices.¹³¹ The agency must provide windows for the public to comment on or challenge the action at each phase.¹³²

The least detailed form of NEPA analysis is a Categorical Exclusion (CE).¹³³ CEQ and Congress have determined certain types of actions “do not individually or cumulatively have a significant effect on the human environment.”¹³⁴ For these actions, the acting agency may have CEQ approval to “categorically exclude” the project from extensive analysis. CEs are also not subject to administrative review. For these actions, the agency may skip nearly all NEPA procedural hurdles with only limited public comment before implementation. Somewhere between the two extremes of CEs and EISs are Environmental Assessments (EAs), which require a pattern of analysis and comment similar to an EIS but with less stringent standards.¹³⁵

Every agency action on federal land must go through at least some level of NEPA analysis.¹³⁶ Analysis specifics may vary across agencies, but all NEPA review shares some central components, like the requirement that the responsible agency must publish a Notice of Intent (NOI) in the Federal Register that summarizes the proposed action and impacts, calls for comments, and outlines the schedule for decision-making.¹³⁷ In that initial NOI publication, the agency typically identifies several “alternatives,” or potential actions it may take.¹³⁸ The agency must compare these potential actions to a “no action” alternative.¹³⁹ CEQ rules also require that all NEPA analyses “involve the public, State, Tribal, and local governments, relevant agencies, and any applicants, to the extent practicable in preparing environmental assessments.”¹⁴⁰

C. NEPA’s successes in stopping harmful action

In 2020, the Trump administration introduced regulations that would have vastly reduced NEPA’s scope and efficacy,¹⁴¹ and conservation organizations leapt to defend the statute.¹⁴² A coalition of environmental groups, led by Earthjustice, filed suit against CEQ, challenging the rollbacks as arbitrary and capricious, in violation of the Administrative Procedure Act and NEPA itself.¹⁴³ Their defense emphasized NEPA’s “vital role in preventing harm to people and the environment” and as “a crucial tool for public engagement and better governmental decision-making in the fight against environmental racism.”¹⁴⁴

These groups are right: NEPA processes objectively reduce environmental degradation. EISs for oil and gas projects result in “final decisions that are substantially less impactful on the environment when compared to initially proposed projects.”¹⁴⁵ NEPA has reduced the impact of Florida highways on the Everglades,¹⁴⁶ stopped the dredging of California tidal lagoons,¹⁴⁷ prevented waste incinerator construction in Puerto Rico, and much more.¹⁴⁸

Even the Trump administration’s cherry-picked data presented to support its NEPA revisions substantiated analysis “that the NEPA process is responsible for substantial changes to project proposals.”¹⁴⁹ The administration selected sixty-eight projects that had been analyzed through EAs. It concluded that similar projects could be excluded from NEPA analysis because they would not “have either individually or cumulatively significant environmental effects.”¹⁵⁰ An analysis of these projects by a collective of environmental organizations pointed out that the data underlying these very projects told a more complicated story:

From proposal to decision, these 68 projects decreased in total size by an astonishing 127,699.5 acres (21%). They decreased in harvest acreage by 60,986 acres (17%). Note that these are net changes to these projects, and therefore likely undercount the total improvements to projects (such as adding or relocating harvest acres or other activities). Still, even with this conservative accounting, the Forest Service decided to drop at least 1 out of every 5 acres it proposed for treatment during the EA process.¹⁵¹

All these examples point to NEPA’s success in preventing action. NEPA’s impact is often beneficial when a project is likely to increase environmental degradation. But different groups have different ideas about what projects and actions are likely to be environmentally degrading. Perceptions of risk are relative. And while some use NEPA as a scalpel to remove particularly hazardous aspects of federal projects, others treat it as a cudgel to kill the entire project.

As the previous section describes, understandings of fire vary regionally. The long tradition of fire in the Southeast means that communities see fire as a neutral force. In contrast, Westerners’ experience of near-exclusive suppression means fire remains a concern: state forestry agencies surveyed in the West were nearly twice as likely as those in the Southeast to list “public perception” as a primary barrier preventing prescribed fire.¹⁵² And NEPA acts as a default, tapping into those fears, preventing fire’s return to the West.

III. NEPA’s Chokeholds

NEPA’s procedural focus results in three unintended effects: (A) it leads to complicated and counterproductive funding mechanisms; (B) it discourages meaningful local involvement; and (C) it rewards low-risk inaction over high-reward action. These three consequences act as obstacles to agencies increasing prescribed burns and reflect NEPA’s flawed conception of humans as elements separate from, and only damaging of, nature, as discussed in Part D.

A. NEPA’s expense plus chronic underfunding hampers non-revenue-generating projects

Running a given project through NEPA analysis is expensive and time-consuming. There is limited data on how costly and lengthy NEPA analysis is,¹⁵³ but what little we know is telling. One study found that it costs the Forest Service on average $113,683 for a simple CE and as much as $1,376,206 for an EIS.¹⁵⁴ U.S. Department of Transportation records show that, between 1999 and 2011, NEPA projects took, on average, over five and a half years from publication of the NOI to final agency decision, not even counting subsequent delays due to objections or litigation.¹⁵⁵ The extreme time and funds needed to complete a given project cause agencies to bundle individual actions together into compound projects for analysis.¹⁵⁶ A search through National Forest Schedules of Proposed Actions (SOPAs) for NEPA reviews of exclusively prescribed burn projects comes up short.¹⁵⁷ Instead, prescribed burn projects are tied into more general actions, like vegetation management and fuels reduction,¹⁵⁸ wetlands restoration projects,¹⁵⁹ or, most commonly, large-scale timber harvests.¹⁶⁰

The reliance on profitable projects to fund NEPA analysis for prescribed burns appears to lead to a second funding catch-22. Because fire becomes tangled up in the other aspects of a project, so does the funding. The agency, cash-strapped in general,¹⁶¹ may become dependent on timber projects that turn a profit to cover the cost of NEPA analysis and the burns themselves. Agency budgeting reflects this practice. Despite an eighty-million-acre backlog of National Forest land in need of active fuels management, USFS, in recent years, has dedicated $0 of its annual budget allocations specifically for prescribed burns.¹⁶² Because no money in its budget is earmarked for fuels management through fire, the agency may need to wait years for the profitable action to fund the controlled burns.¹⁶³ Litigation and other NEPA-related hurdles often exacerbate this delay. In the interim years, wildfire may rush in.¹⁶⁴

Not all agencies work like this. The only agency successfully implementing relatively significant controlled burns has an altogether different funding structure. The Bureau of Indian Affairs (BIA) dedicates roughly a quarter of its fire budget to prescribed burns.¹⁶⁵ As a result, BIA has been able to treat 7.5% of the lands it manages with controlled fire annually.¹⁶⁶ This percentage is a staggering achievement, particularly in comparison with its peer agencies. USFS, NPS, the Bureau of Land Management (BLM), the Fish and Wildlife Service (FWS), and other federal agencies (e.g., Defense, Energy, and Reclamation) all failed to burn even one percent of their forests.¹⁶⁷

The gap between BIA and its peers may be attributable to NEPA: most BIA burns do not require NEPA analysis. Despite the high level of BIA burning, only four NOIs published by the agency contain the phrase “prescribed burning” or its synonyms. Single actions not associated with a more extensive project may avoid NEPA review if they fit into Categorical Exclusions (CEs). Several CEs apply specifically to BIA-controlled burns, including any fire conducted by a tribe as part of a self-governance compact¹⁶⁸ and any “prescribed burning plans of less than 2,000 acres.”¹⁶⁹

In theory, other agencies might take advantage of CEs as well. USFS has three regulatory CEs that allow small-scale controlled burns that restore forests or improve wildlife habitat.¹⁷⁰ USFS could also take advantage of the CEs created by the 2003 Healthy Forest Restoration Act (HFRA).¹⁷¹ HFRA designates areas of “declining forest health” where USFS can exclude prescribed burn projects of up to 3,000 acres from NEPA review.¹⁷² That so few treatments end up as stand-alone CEs speaks to agency prioritization, overall funding levels, community attitudes, and perhaps disregard for advocacy by tribal practitioners.¹⁷³ But it also may reflect the massive problem of scale. After half a century of fire suppression, public lands face a logjam of overstocked forests.¹⁷⁴ USFS manages over 193 million acres spread across 154 national forests.¹⁷⁵ The backlog of areas in need of prescribed burning is of an equivalent scale, likely somewhere in the high tens of millions of acres. One study estimated that three national forests alone had a backlog of around 2.9 million acres. Two-thousand-acre chunks are insufficient to make even a dent. BIA manages less than a quarter of what USFS does—56 million acres, many of which are unforested.¹⁷⁶ Through the CE for fires conducted as part of a self-governance compact, BIA can avoid NEPA even for projects larger than 2,000 acres.¹⁷⁷ This option allows BIA to operate fire at much larger scales, without significant NEPA-driven costs.

B. Litigation and lack of meaningful stakeholder involvement dampens fire

NEPA discourages meaningful local involvement, leading to outsider litigation and limiting shifts in community attitudes towards fire. NEPA’s structure dissuades meaningful citizen participation, instead fostering an uncooperative and oppositional dynamic between agencies and other stakeholders. Comments submitted to agencies in NEPA enter a black box and ultimately have little impact on agency decision-making. By the time an NOI is published (usually the first official step in the NEPA process) and the agency has selected a preferred alternative, persuading the agency to change its mind becomes nearly impossible.¹⁷⁸ The only reliable method for forcing change after the NOI is published is to sue the agency.

Many of the elements that make early, ongoing involvement so critical—like the lack of agency changes following NOI publication and doctrines that bar litigation like preclusion and issue exhaustion—are far outside the standard layperson’s comfort zone. This is a system removed from ecological needs. Navigating NEPA requires hiring lawyers, not biologists, silviculturists, or fire experts. Abstruse agency decision-making also rewards sophisticated and repeat players. But trees grow slowly. Foresters regularly plan for forest cycles lasting fifty years or longer and rotate treatment areas around large landscapes.¹⁷⁹ A given patch of forest may not be at the center of NEPA analysis for two or three decades. Locals who care about a particular stretch of woods may care deeply but have no skills to navigate the NEPA maze. The obtuse NEPA process results in an imbalance, where outside communities dominate most NEPA involvement and litigation.¹⁸⁰

There are two major downsides to this arrangement as it impacts prescribed burns. First, NEPA gives commenters a potent tool but forces them to share it. Because NEPA has practically no substantive requirements, just procedural ones, the agency has enormous leeway to act as it pleases, so long as it checks the required boxes. Agency staff must listen to and respond to comments but are not obligated to accommodate them. The threat of litigation can create an incentive to accommodate. It is a stick for stakeholders to wield in negotiations over proposed actions.

Imagine a particular National Forest has proposed a timber harvest with no prescribed burning or conservation activities. A local NGO submits NEPA comments detailing their strong objection to the project—unless the agency includes a controlled burn. The agency can read between the lines. It understands that, barring including fire as a project component, the organization will sue, pushing the timeline of actual work even farther out. It is in the agency’s interest to make at least some change to the NGO’s area of concern, if only to avoid delay and the cost of litigation. This is a two-way negotiation.

Now, imagine there are three NGOs, each with a different pet concern. The calculation has changed. In the first scenario, the agency could avoid a lawsuit by changing one element. In the second, nothing short of changing everything is guaranteed to eliminate the risk of litigation. Changing everything could mean the project becomes unprofitable. And these three concerns may even be conflicting, so that no amount of accommodation makes all three groups happy. So, the National Forest changes nothing and hopes it can prevail under Chevron deference when the project is inevitably litigated.¹⁸¹

When this situation becomes a repeated pattern, everyone knows their comments and attempts to negotiate with the agency are futile. So instead, NGOs submit just enough comments to keep the door to litigation open and wait to file their suit. The goal becomes making it to court, hoping the judge will pick the NGO’s side, and maybe set precedence for future cases on the way. Instead of NEPA acting as a tool to allow public participation in agency processes, it becomes a tool for those with resources to slow down agency action, and it ultimately hands power to the courts.

This system of little local involvement and slow, painful litigation limits agency interest in prescribed burns. Since NEPA takes so long, requires so much of an agency, and costs so much, agencies are likely to focus on projects that give them the most bang for their NEPA buck. Unsurprisingly, over the past two decades, timber shops—the offices within each National Forest that manage lumber contracting and operations—have taken over as the driving force behind USFS management.¹⁸² Projects that have net costs, such as prescribed burning, get short shrift.

The second downside of the imbalance in NEPA commenters is that it prolongs erroneous cultural attitudes towards fire, creating a dangerous positive-feedback loop. Federal agencies spent half a century releasing propaganda fighting against all fire. Every cohort of Americans, from the Greatest Generation to Gen Z, has grown up with an anti-fire mascot, from Uncle Sam in the 1930s to the familiar image of Smokey Bear.¹⁸³ Communities have come to fear fire, even when they see its virtues. One meta-study by a USFS researcher reviewed attitudes towards prescribed fire by communities near national and state forests.¹⁸⁴ Although most respondents saw prescribed burning as an “appropriate management tool,” groups of participants remained leery of smoke and the potential for the fire to escape.¹⁸⁵ Others distrusted the government’s ability to execute burns or were unfamiliar with the practice. This unawareness likely hampers acceptance: the study’s authors found “a strong link between knowledge and support for . . . prescribed fire.”¹⁸⁶ But perhaps most fundamentally, the study emphasized that perceptions were flexible but required work. It emphasized that “understanding is a two-way street”:

[T]he fact that there is a clear link between familiarity with a practice and acceptance does not mean that increasing acceptance of prescribed fire is simply a case of providing information . . . . [T]he most trustworthy and most helpful methods of information dissemination were guided field trips and interaction with agency personnel. Such interactive methods are most effective at changing attitudes and behavior as they allow people to question and clarify new information . . . . Manager[]s in turn can learn through this process about key public concerns and issues and tailor their management efforts to account for them.¹⁸⁷

The type of involvement that changes opinions about fire is precisely what NEPA should, in theory, be providing, but, in reality, is stifling. Agencies do often organize public field trips to discuss projects.¹⁸⁸ Having attended several myself, few participants on these trips are curious citizens interested in a project near their community, tagging along to learn more. Participants are far more likely to be well-informed staff members from state or county governments, partner federal agencies, environmental NGOs, or industry—in other words, the NEPA regulars. The agency staff thus tailors their presentation to the experienced players, who already know the basics of prescribed burns. That leaves those few community members who do show up mostly at a loss and without the type of two-way engagement necessary to change minds. The NEPA process then chugs along, leaving community perceptions of fire unchanged. Perhaps this lack of accessible engagement explains the lack of variation in fire perceptions between people who live within a National Forest wildland-urban interface and residents of metropolitan Chicago.¹⁸⁹

C. NEPA creates out-of-date agency perceptions and perverse incentives

The combination of NEPA’s funding hurdles, emphasis on risks, and discouragement of local participation distorts agency staff’s feelings towards fire. On the one hand, the high cost of NEPA and bundling of controlled burns onto larger timber packages creates a perception that burns are expensive and may require timber sales to pay for them.¹⁹⁰ NEPA’s inherent focus on risks also emphasizes the downsides of fire, in particular smoke.¹⁹¹ The upsides it features tend to be focused on fuel reduction and wildfire prevention. Combined, this enables timber shops to cannibalize funding from fire.¹⁹² Agency staff may argue that mechanical thinning (cutting trees at fixed intervals) provides the same protection from wildfire without any of the risks of prescribed burns,¹⁹³ but the two treatments are not interchangeable. While both are helpful tools to fight wildfire, fire often has broader benefits to ecosystems that thinning cannot replicate.¹⁹⁴

On the other hand, NEPA imbues fire with a sense of fear and risk that deters agency staff from pursuing prescribed burns.¹⁹⁵ This emphasis on potential disasters over reliable results is exacerbated by the rare cases when a fire does escape. For years following the 2000 Cerro Grande Fire, for instance, federal agency officials remained “leery” about the risks of controlled fire.¹⁹⁶ The Cerro Grand began as a prescribed burn managed by NPS on the Bandelier National Monument in New Mexico.¹⁹⁷ Overnight, wind gusts intensified the flames while fire crews were short-handed, and the fire broke free, eventually burning over 43,000 acres.¹⁹⁸ While no one died, the resulting wildfire burned over 200 homes and threatened facilities storing radioactive materials at the Los Alamos National Laboratory.¹⁹⁹ The damage to the town and its infamous National Laboratory cost one billion dollars.²⁰⁰

In part because of the potential danger to Los Alamos’s nuclear facilities, the fire quickly became political. Articles and opinion pieces questioning prescribed burning appeared in national press outlets, including CBS,²⁰¹ the New York Times,²⁰² and the Chicago Tribune.²⁰³ A particularly scathing opinion piece in the Wall Street Journal declared that “the history of prescribed fires shows it is a largely failed policy.”²⁰⁴ Unsurprisingly, the fire instigated a flurry of litigation.²⁰⁵ NPS,²⁰⁶ the National Interagency Fire Center,²⁰⁷ and Congress all launched investigations into the fire.²⁰⁸ Interior Secretary Bruce Babbitt ordered a month-long suspension of all controlled burning activity.²⁰⁹

Future prescribed burns live under the cloud of this history. A fuels manager noted that he must discuss the potential for escape in every NEPA analysis.²¹⁰ For agency staff conducting forest management who live in small rural communities, the risks of escape feel perilously personal. Although the fuels manager is confident in his and his team’s skills, he obtained personal liability insurance—just in case a prescribed fire escapes.²¹¹ “You need to be gutsy to make a difference with prescribed burns . . . . [I]t takes personal risk-taking to make it happen.”²¹²

The uproar the Cerro Grande fire caused was extreme but not isolated. NEPA forces the acting agency to confront concerns around smoke with every project.²¹³ Smoke is dangerous, whether it stems from prescribed burns or a raging wildfire.²¹⁴ “Wood smoke contains many of the same toxic and carcinogenic substances as cigarette smoke” and leads to “increased risk of acute respiratory and cardiovascular outcomes, including exacerbations of asthma and chronic obstructive pulmonary disease, acute lower respiratory tract infections, myocardial infarction, stroke, and arrhythmias.”²¹⁵ NEPA public comments regularly raise smoke as a potential reason to avoid or limit prescribed burns.²¹⁶ The question of smoke became particularly difficult following the outbreak of Covid-19. Because the virus attacked lungs, commentators worried that prescribed burns could exacerbate an already deadly situation.²¹⁷ USFS and several other state and federal agencies opted to cancel all burns for the 2020 season.²¹⁸

In reality, smoke concerns from prescribed burns are likely overblown. The amount of smoke produced by a prescribed burn is generally less dangerous and more controllable than wildfire smoke.²¹⁹ But the attention that smoke gets reflects a more significant problem with agency attitudes toward fire, one reflected in NEPA’s structure. Agencies often act as if the actions they consider taking exist in a vacuum. Analyses may ignore the realities of climate change²²⁰ or the impact of actions taken over international borders.²²¹ Although courts have held agencies accountable for the former, which was particularly egregious and obvious under the Trump administration,²²² the pattern reflects a more systemic issue.

In conducting a NEPA review, an acting agency analyzes a set of discrete hypothetical scenarios. The agency will compare the impacts of one or more “action alternatives”—each scenario within the range of potential scenarios the agency is considering constitutes one “alternative”— against a “no action alternative”—what the conditions would be if the agency did nothing.²²³

But when it comes to fire management on today’s federal lands, there is no such thing as a “no action” alternative. Fires are inevitable in Western and Southeastern landscapes. And although agencies are moving away from the 10 a.m. policy to a more fire-friendly future, fire suppression is still the norm. So, paradoxically, prescribed burn alternatives more closely mirror the landscape as it would exist without agency action—mottled by fire—and no-action alternatives reflect high-intensity action. This inverted description of action and inaction produces an imbalance of perceived risk. As one commenter noted,

Fire-dependent forests will burn eventually, meaning the responsible choice is between periodic, lower concentrations of smoke in planned dispersal patterns or unplanned, heavy emissions where smoke drift and accumulation is uncontrolled. Current policy treats “unmanaged” wildfire occurrence and the resultant effects as “an act of God” when human management decisions and inaction have actually contributed to conditions that support large, severe fires.²²⁴

Because NEPA creates an aversion to risk, prescribed burns remain controversial, at least to agency politicos if not to foresters.²²⁵ The irony of this fear of prescribed burns is perhaps ironically encapsulated by the aftermath of the Cerro Grande fire: just a decade after it wreaked havoc on Los Alamos, it saved the town from further destruction by yet another fire.²²⁶ Even bad fire can be good.

D. NEPA’s disconnect from nature: A theoretical framework

Each of these three hurdles—funding, litigation, and counterproductive incentives—points to a more profound defect within NEPA: the statute assumes that human activity is innately bad for nature. In many cases, as discussed above in section III.C, this baseline assumption matches the reality of proposed projects, and NEPA’s tendency to reduce projects protects natural environments and communities. When NEPA analysis reviews a hazardous mining operation, a highway proposed to run through a neighborhood, or a proposed clearcut, this assumption tends to align with reality. Little that stems from these types of development is good for the earth. But just because many agency actions are harmful to the environment does not mean all potential human activity is environmentally harmful. Humans are capable of taking positive action too. We can restore wetlands, compost urban waste, or reintroduce native species.

These kinds of restorative actions are often better than doing nothing. Yet many Americans evaluate any human activity the same way NEPA does, assuming net harm. Surveys confirm that although people see themselves as part of nature, they simultaneously perceive nature as spaces where humans are absent.²²⁷ Environmentalists often hold this same perception, a trend Robin Wall Kimmerer describes in Braiding Sweetgrass:

One otherwise unremarkable morning I gave the students in my General Ecology class a survey. Among other things, they were asked to rate their understanding of the negative interactions between humans and the environment. Nearly every one of the two hundred students said confidently that humans and nature are a bad mix. These were third-year students who had selected a career in environmental protection, so the response was, in a way, not very surprising. They were well schooled in the mechanics of climate change, toxins in the land and water, and the crisis of habitat loss. Later in the survey, they were asked to rate their knowledge of positive interactions between people and land. The median response was “none.”²²⁸

The very language of the historic (and predominantly white) American environmental movement reflects this perception. Terms like “preservation” convey that the environmentalist’s work is defending nature from humanity and that the end goal is to have two separate and closed systems, with humans kept away from nature.

We can see this type of understanding in the structure and flaws of NEPA. To an agency, a prescribed burn and a timber harvest are essentially the same activity: they both remove trees from woods, so both are analyzed in practically the same way and at the same cost. This high cost leads to the bundling and defunding of prescribed burns discussed above. The few mechanisms to change agency action through NEPA—primarily but not exclusively litigation—reflect a pessimistic view of human activity. NEPA’s impact decreases agency activity on a fairly large scale.

BIA’s success in implementing prescribed burns points to a fundamentally different understanding of nature and human activity, one grounded in indigenous practice. Many Native traditions emphasize the connectedness of humans and nature as one system.²²⁹ “In Indigenous cultures, resilience is considered as a holistic concept—everything is related.”²³⁰ Contemporary activism by tribes reflects this understanding that human activity can be beneficial and that traditions of prescribed fire connect directly to indigenous land practices. “[F]ire-dependent American Indian communities such as the Karuk and Yurok peoples stalwartly advocate for expanding prescribed burning as a part of their efforts to revitalize their culture and sovereignty . . . . However, land dispossession and centralized state regulations undermine Indigenous and local fire governance.”²³¹ And BIA stewardship is no anomaly. Successful, controlled-burn regimes are led by indigenous communities internationally: “In exceptional Australian and South American contexts where fire governance is comparatively decentralized and Tribal sovereignty and land title are no longer as encumbered by colonial regulations, Indigenous cultural burning is achieving desired social and ecological outcomes without a heavy reliance on external funding and metrics.”²³²

Recognizing that NEPA’s tacit assumption—that all human activity is dangerous to nature—is out of line with best fire practices identifies a fundamental problem. The following section dives into several strategies to combat the impact of this assumption.

IV. How to Return Fire to Western Landscapes

NEPA stands in the way of fire on federal lands. Its procedural emphasis on inaction causes budget constraints, excludes local engagement in favor of outsider litigation, and creates paradoxical incentives and understandings of risk. Policymakers and the Biden administration can increase prescribed burns in the West by addressing the individual issues within the existing NEPA framework, fundamentally changing how NEPA works, or reconsidering who should manage federal lands.

A. Increase earmarked funding

One relatively straightforward solution would be to designate significant funds for executing and analyzing prescribed burns. Increased funds could help untangle controlled burns from more complicated (and likely to be litigated) NEPA analyses, allowing agencies to take advantage of existing CEs or smaller, smoother EAs. By increasing money for burns specifically, agencies also might have additional capacity to conduct community education about fire management, increasing local involvement with and understanding of controlled burns.

B. Make NEPA and agency processes more inclusive of those impacted by wildfire

To reduce the high levels of litigation involving NEPA-prescribed burns, legislators could amend NEPA’s participation structure to increase the role of commenters in driving agency action. Revised participation structures might create local stakeholder groups with diverse membership, require that agencies involve the stakeholders in all NEPA projects, or increase the level of deference due to an agency action if a community stakeholder group signs off on a given project. Increased community power would build off of existing stakeholder coalitions like the Northeast Washington Forestry Coalition on the Colville National Forest.²³³ On the Colville National Forest, a robust collaborative process that limits litigation allows USFS to sell a timber project before completing NEPA, in an “A to Z” project.²³⁴ This reversing of the normal process ensures the agency has funds to include prescribed burns and other conservation activities in the NEPA process. Increasing stakeholder involvement would replicate BIA processes²³⁵ and, it is hoped, result in similarly successful fire management.

This solution is not without its downsides. In particular, it might allow groups with the most money, interest, and local influence—essentially industry—to capture the supposedly representative stakeholder process. But, in many places, industry capture happens regardless. If industry is already driving agency decision-making (especially at USFS, where timber shops rule the roost), it is worth exploring ways to expand the use of much-needed prescribed fire.

C. Expand Categorical Exclusions for suppression activities

A third way to increase prescribed burns would simply be to expand the scope of CEs. The availability of CEs certainly aids the BIA in expediting burns, and additional prescribed burn-specific CEs could free other agencies to follow their lead. But CEs are controversial.²³⁶ Many environmental advocates are rightly concerned about the potential for CEs to be exploited (particularly when the exception is not limited to non-fire thinning) or for unanalyzed fire to cause unintended damage.²³⁷ But policymakers could limit the applicability of CEs to cover only prescribed burns without additional treatments. And the increasing use of CEs might help begin the process of righting agency understandings of fire and inaction. If agencies were free to conduct small-scale “good” fire, it might open their eyes (and those of community members) to the long-term benefits of habitual fire.

D. Legislation that prioritizes science and community over procedural rights

A more fundamental solution would be to overhaul NEPA and its related statutes to center substantive rights for natural improvement grounded in science. Legislation could establish fire on landscapes as the baseline for no-action alternatives or require agencies to manage some set percentage of land for fire conditions. It could constitute a more essential revision to NEPA and require more significant consideration of context and dynamic conditions. Any of these solutions would complement the legacy of the substantive federal environmental law statutes, reflecting our new age of wildfire and climate change.

Some within within Congress exists to overhaul NEPA,²³⁸ but current efforts tend to focus on speeding up analysis or reducing procedural hurdles.²³⁹ These potential reforms reflect industry concerns about the length of the process and may reduce rigorous NEPA review of truly environmentally degrading activities. Given the deeply divided nature of Congress and Republican support for NEPA reform (even if on murky bases fundamentally opposed to the critiques discussed in this paper), it is unlikely that the Democratic caucus—most likely to be pro-fire and ecosystem-based management—could get behind a similarly framed (if fundamentally different) change to NEPA.²⁴⁰

E. Return lands to tribal control

One final way to increase prescribed burns would be to return federal lands to tribal jurisdiction. Recognition of indigenous sovereignty, including over public lands, is a goal of the Land Back movement, an international campaign to restore stolen indigenous land to Native people.²⁴¹ Land Back is deeply connected to other movements recognizing the injustices of American colonialism.²⁴²

Discussions about reparations have become a larger part of the public consciousness in recent years. Yet, to date, there has never been a good faith attempt at restorative justice under American democracy. Even the few attempts at reparations for disenfranchised communities have come at the cost of another community’s resources. For example, the 40 acres and a mule promised to formerly enslaved people were, in fact, 40 acres of stolen Indian land.²⁴³

Although the federal government has yet to enact any kind of systemic land-back regime, transfers are happening on a smaller scale.²⁴⁴ In 2020, after decades of advocacy by the Confederated Salish and Kootenai Tribes, Congress passed legislation returning the 18,000-acre National Bison Range in Montana to the tribes.²⁴⁵ Similarly, relatively small-scale transfers are happening internationally. In 2017, Australia handed management of 87,000 hectares to a consortium that centered the Tribal Council of the Nari Nari, a local indigenous group.²⁴⁶

Fee-simple transfers of America’s federal lands require congressional action. But federal agencies already have the power to transfer lands to tribal management. Under the Indian Self Determination Act,²⁴⁷ agencies may form sovereign-to-sovereign agreements with tribes to operate federal programs, including land management.²⁴⁸ Co-management case studies reveal these contracts’ successes, including for agencies’ bottom lines. For example, the Grant Portage Band of Minnesota Chippewa was able to reduce maintenance costs for the Grand Portage National Monument, compared with NPS services. ²⁴⁹ Yet today, co-management is underutilized; despite hundreds of tribes and millions of acres of public land, federal land management agencies currently have fewer than two dozen such contracts.²⁵⁰

Respecting and restoring tribal sovereignty is its own end, not merely a means to more sustainable fire management. It is an end that the federal government and non-natives are increasingly supporting.²⁵¹ Co-management agreements of the type authorized by the Indian Self-Determination Act probably does not meet the demands of the Land Back movement; self-determination is not the same thing as full sovereignty.²⁵² But tribal co-management presents an opportunity to restore tribal management and indigenous fire to federal lands.

Conclusion

Climate change is an existential threat, both globally and locally. Wildfires are a prime example of the type of harm threatening communities in a hotter, dryer world, and prescribed burning is one of the few tools we have to combat this destruction directly, to protect communities and ecosystems. Yet, in the American West, the legal framework of NEPA stands in the way of effective fire management.

As Part IV discussed, this problem has any number of solutions, from overhauling NEPA to agency rulemaking to legislative reapportioning. Only one of these solutions could be enacted by the Biden administration tomorrow: large-scale tribal co-management. Professor Kevin Washburn described the relative simplicity of this approach: “[The l]egal infrastructure already exists in federal law to support greater tribal management or co-management of federal public lands. While some modest federal appropriations could help, no major new legislation is essential to achieve substantially more progress.”²⁵³

Restoring indigenous sovereignty would almost certainly lead to fundamental shifts in fire management.²⁵⁴ BIA and American Indian tribes have demonstrated that they can restore prescribed burns to landscapes. If the federal agencies tasked with land management are struggling to manage fire appropriately, why not support those who can and who have, in fact, been sustainably stewarding this land for millennia?

Endnotes

1. Michael C. Wimberly & Zhihua Liu, Interactions of Climate, Fire, and Management in Future Forests of the Pacific Northwest, 327 Forest Ecology & Mgmt. 270 (2014); Jeremy S. Fried et al., The Impact of Climate Change on Wildfire Severity: A Regional Forecast for Northern California, 64 Climatic Change 169 (2004).

2. Volker C. Radeloff et al., Rapid Growth of the US Wildland-Urban Interface Raises Wildfire Risk, 115 Proc Nat’l Acad. Sci. USA 3314 (2018); Jennifer K. Balch et al., Human-Started Wildfires Expand the Fire Niche Across the United States, 114 Proc Nat’l Acad. Sci. USA 2946 (2017).

3. Marc-Andre Parisien, Science Can Map a Solution to a Fast-Burning Problem, 534 Nature 297 (2016).

4. Ed Struzik, How Wildfires Are Polluting Rivers and Threatening Water Supplies, Yale Env’t 360 (Oct. 2, 2018), https://e360.yale.edu/features/how-wildfires-are-polluting-rivers-and-threatening-water-supplies.

5. Matthew A. Thomas et al., Postwildfire Soil-Hydraulic Recovery and the Persistence of Debris Flow Hazards, J. Geophysical Rsch.: Earth Surface, June 2021, at 2; Francis K. Rengers et al., Landslides After Wildfire: Initiation, Magnitude, and Mobility, 17 Landslides 2631–2641 (2020).

6. Leonardo Ancillotto et al., Wildfires, Heatwaves and Human Disturbance Threaten Insular Endemic Bats, 30 Biodiversity & Conservation 4401 (2021); Isabel T. Hyman et al., Impacts of the 2019–2020 Bushfires on New South Wales Biodiversity: A Rapid Assessment of Distribution Data for Selected Invertebrate Taxa, 32 Tech. Reps. Austl. Museum (online) 1 (2020); Mark K. J. Ooi, The Importance of Fire Season When Managing Threatened Plant Species: A Long-Term Case-Study of a Rare Leucopogon Species (Ericaceae), 236 J. Env’t Mgmt. 17, 18 (2019) (“The threats caused by altered fire regimes may not only affect the persistence of those plant species that are already threatened with extinction, but also of many common species.”).

7. See, e.g., Christopher Weber & Noah Berger, “We Lost Greenville’: Wildfire Decimates California Town, AP News (Aug. 5, 2021), https://apnews.com/article/fires-environment-and-nature-california-13faa6976260a4a9e10906c70b4ed2d0; Amy Beth Hanson, Wildfire Destroys 24 Houses in Central Montana Town, AP News (Dec. 2, 2021), https://apnews.com/article/wildfires-business-fires-montana-great-falls-59e86452223ba1760f048de2a13e6331.

8. John R. Balmes, Where There’s Wildfire, There’s Smoke, 378 New Eng. J. Med. 881 (2018).

9. Tips for Managing Your Distress Related to Wildfires, Am. Psych. Ass’n (Aug. 1, 2011), https://www.apa.org/topics/disasters-response/wildfires-tips.

10. Ian P. Davies et al., The Unequal Vulnerability of Communities of Color to Wildfire, PLoS ONE, Nov. 2, 2018, at 1; Jia Coco Liu et al., Who Among the Elderly Is Most Vulnerable to Exposure to and Health Risks of Fine Particulate Matter From Wildfire Smoke?, 186 Am. J. Epidemiology 730 (2017).

11. YCC Team, Lack of Affordable Housing Makes Wildfire Recovery More Difficult, Yale Climate Connections (July 22, 2021), http://yaleclimateconnections.org/2021/07/lack-of-affordable-housing-makes-wildfire-recovery-more-difficult.

12. Davies et al., supra note 10.

13. See also Michael R Coughlan et al., Social Vulnerability and Wildfire in the Wildland-Urban Interface, Nw. Fire Sci. Consortium, 13 (2019) (finding that people from marginalized backgrounds are exposed to increased “risk of catastrophic loss from wildfire”). But see Jessica Debats et al., A Tale of Two Suburbias: Turning up the Heat in Southern California’s Flammable Wildland-Urban Interface, 104 Cities 102725, 102725 (2020) (“[T]his study finds that the wildland-adjacent neighborhoods most impacted by wildfire have remained predominantly white and affluent, even as Southern California has become increasingly diverse.”).

14. See Climate Change Indicators Technical Documentation: Wildfires, EPA, https://www.epa.gov/sites/default/files/2021-04/documents/wildfires_td.pdf (last updated July 2022) (“[W]hile climate change is not the only factor that influences patterns in wildfire, the many connections between wildfire and climate make this indicator a useful tool for examining a possible impact of climate change on ecosystems and human well-being.”).

15. Nancy L. Harris et al., Global Maps of Twenty-First Century Forest Carbon Fluxes, 11 Nat. Climate Change 234 (2021); USDA Forest Serv., Forest Carbon and Land Management (n.d.), https://www.climatehubs.usda.gov/hubs/northern-forests/topic/forest-carbon-and-land-management.

16. Guido R. van der Werf et al., Global Fire Emissions Estimates During 1997–2016, 9 Earth Sys. Sci. Data 697 (2017); NOAA, The Impact of Wildfires on Climate and Air Quality (n.d.), https://csl.noaa.gov/factsheets/csdWildfiresFIREX.pdf.

17. Malcolm P. North & Matthew D. Hurteau, High-Severity Wildfire Effects on Carbon Stocks and Emissions in Fuels Treated and Untreated Forest, 261 Forest Ecology & Mgmt. 1115 (2011); X. J. Walker et al., Fuel Availability Not Fire Weather Controls Boreal Wildfire Severity and Carbon Emissions, 10 Nat. Climate Change 1130, 1134 (2020) (“[T]he increase in [carbon] combustion in response to higher pre-fire aboveground [carbon] pools is also likely a function of these higher-biomass sites burning more intensely and facilitating the combustion of organic soils.”).

18. Paulo M. Fernandes & Hermínio S. Botelho, A Review of Prescribed Burning Effectiveness in Fire Hazard Reduction, 12 Int. J. Wildland Fire 117 (2003); Jolie Pollet & Philip N. Omi, Effect of Thinning and Prescribed Burning on Crown Fire Severity in Ponderosa Pine Forests, 11 Int’l J. Wildland Fire 1 (2002).

19. Dead, organic material can escalate fires literally: so-called “ladder fuels,” or tall vegetation-like shrubs and downed tree branches, let fires jump from forest floors (where they may be relatively insubstantial and restorative) up into the crowns of trees. Once in the crown, fires become intense, spread quickly, and are difficult to contain. See USDA, Forest Serv., Influence of Forest Structure on Wildfire Behavior and the Severity of Its Effects (2003).

20. USDA Forest Service, Fire Regimes of the Conterminous United States (Feb. 2012), https://www.fs.usda.gov/database/feis/fire_regime_table/fire_regime_table.html; The Burning Solution: Prescribed Burns Unevenly Applied Across U.S., Climate Cent. (May 29, 2019), https://www.climatecentral.org/report/report-the-burning-solution-prescribed-burns-unevenly-applied-across-us; Mark A. Finney et al., A Simulation of Probabilistic Wildfire Risk Components for the Continental United States, 25 Stochastic Env’t Rsch. & Risk Assessment 973 (2011).

21. Peter Z. Fulé et al., Effects of an Intense Prescribed Forest Fire: Is It Ecological Restoration?, 12 Restoration Ecology 220 (2004).

22. See Christine Wiedinmyer & Matthew D. Hurteau, Prescribed Fire as a Means of Reducing Forest Carbon Emissions in the Western United States, 44 Env’t Sci. Tech. 1926 (2010).

23. See, e.g., Benjamin A. Jones & Robert P. Berrens, Prescribed Burns, Smoke Exposure, and Infant Health, 39 Contemp. Econ. Pol’y 292 (2021).

24. John R Weir et al., Prescribed Fire: Understanding Liability, Laws, and Risk (2020), https://extension.okstate.edu/fact-sheets/print-publications/nrem/prescribed-fire-understanding-liability-laws-and-risk-nrem-2905.pdf.

25. Thomas P. Lonnie et al., National Interagency Fire Ctr., Cerro Grande Prescribed Fire Investigation Report (2000). In 2022, history rhymed with itself when another New Mexico prescribed burn escaped. The resulting Calf Canyon/Hermits Peak Fire broke records as the state’s largest and most destructive wildfire. See Bryan Pietsch & Jason Samenow, New Mexico Blaze Is Now Largest Wildfire in State History, Wash. Post (May 17, 2022), https://www.washingtonpost.com/nation/2022/05/17/calf-canyon-hermits-peak-fire-new-mexico.

26. Cerro Grande Fire: Hearing Before the S. Comm. on Energy & Nat. Res., 106th Cong. 12 (2000) (statement of Gary Jones, Associate Director, Energy Resources, and Science Issues, General Accounting Office).

27. Id.

28. Id.

29. See, e.g., Crystal Kolden, We’re Not Doing Enough Prescribed Fire in the Western United States to Mitigate Wildfire Risk, 2 Fire 30 (2019); John Bailey & Matthew Hurteau, The Right Fire to Fight Fire—Why Limiting Prescribed Burning Is Short-Sighted, The Hill (Aug. 25, 2021), https://thehill.com/opinion/energy-environment/569317-the-right-fire-to-fight-fire-why-limiting-prescribed-burning-is; Eric Bontrager, Lawmakers Propose to Boost Use of Prescribed Fires, Nat. Conservancy (May 20, 2021), https://www.nature.org/en-us/newsroom/prescribed-fire-bill-proposed.

30. Mark A. Melvin, 2020 Prescribed Fire Use Report (Nat’l Ass’n of State Foresters & Coal. of Prescribed Fire Councils eds., 2020), https://www.stateforesters.org/wp-content/uploads/2020/12/2020-Prescribed-Fire-Use-Report.pdf.

31. Kolden, supra note 29.

32. Cong. Rsch. Serv., IF10244, Wildfire Statistics (2021), https://sgp.fas.org/crs/misc/IF10244.pdf.

33. Erin Noonan-Wright & Carl A. Seielstad, Patterns of Wildfire Risk in the United States from Systematic Operational Risk Assessments: How Risk Is Characterised by Land Managers, 30 Int. J. Wildland Fire 569 (2021).

34. Melvin, supra note 30.

35. Kolden, supra note 29.

36. Id.

37. For a survey of common critiques, see Daniel R Mandelker, The National Environmental Policy Act: A Review of Its Experience and Problems, 32 Wash. U. J.L. & Pol’y 293 (2010).

38. See, e.g., Lettie McSpadden Wenner, The Misuse and Abuse of NEPA, 7 Env’t Rev. 229 (1983).

39. E.g., Jonathan Wood, Speeding Up Environmental Reviews Is Good for the Economy and the Environment, PERC (Feb. 6, 2020), https://www.perc.org/2020/02/06/speeding-up-environmental-reviews-is-good-for-the-economy-and-the-environment; Diane Katz, Time to Repeal the Obsolete National Environmental Policy Act (NEPA) (Heritage Found. 2018), https://www.heritage.org/government-regulation/report/time-repeal-the-obsolete-national-environmental-policy-act-nepa.

40. Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act, 40 C.F.R. §§ 1500–1508, 1515–1518 (2021).

41. Stephen J. Pyne, The Pyrocene: How We Created an Age of Fire, and What Happens Next (2021).

42. Id. at 4.

43. Id. at 4, 34–52; see also Andrew C. Scott & Ian J. Glasspool, The Diversification of Paleozoic Fire Systems and Fluctuations in Atmospheric Oxygen Concentration, 103 Proc. Nat’l Acad. Sci. 10861 (2006) (finding evidence in the fossil record that fire began on earth 420 million years ago)

44. Pyne, supra note 41, at 4.

45. Id. at 4, 56–61

46. Id. at 4.

47. Jeff Hardesty, Ron Myers & Wendy Fulks, Fire, Ecosystems, and People: A Preliminary Assessment of Fire as a Global Conservation Issue, 22 George Wright F. 78, 81 (2005).

48. Jason M. Greenlee & Jean H. Langenheim, Historic Fire Regimes and Their Relation to Vegetation Patterns in the Monterey Bay Area of California, 124 Am. Midland Naturalist 239 (1990); Joseph J. O’Brien et al., Interactions Among Overstory Structure, Seedling Life-History Traits, and Fire in Frequently Burned Neotropical Pine Forests, 37 Ambio 542 (2008).

49. Hardesty et al., supra note 47, at 81; see also Pyne, supra note 41, at 21; Josep M. Serra-Diaz et al., Disequilibrium of Fire-Prone Forests Sets the Stage for a Rapid Decline in Conifer Dominance During the 21st Century, 8 Sci. Reps. 6749, 6750 (2018) (“In fire-prone temperate forests, stable community states are often maintained via feedbacks, such as when species’ characteristics reinforce a specific fire regime.”); Jennifer A. Hoss et al., Fire History of a Temperate Forest with an Endemic Fire-Dependent Herb, 29 Physical Geography 424 (2008) (“The presence of [the Peters Mountain mallow] strongly suggests that fire has played a long and crucial role on the landscape.”); Scott L. Stephens, Robert E. Martin & Nicholas E. Clinton, Prehistoric Fire Area and Emissions from California’s Forests, Woodlands, Shrublands, and Grasslands, 251 Forest Ecology & Mgmt. 205 (2007).

50. A. C. Scott, The Pre-Quaternary History of Fire, 164 Palaeogeography, Palaeoclimatology, Palaeoecology 281 (2000); Human vs. Naturally Occurring Wildfires, Bureau of Indian Affs., https://www.bia.gov/bia/ots/dfwfm/bwfm/wildfire-prevention-and-education/home-bureau-indian-affairs-bia-trust-services-division-forestry-and-wildland-fire-management-branch (last visited Dec. 20, 2022); E. L Heffern & D. A. Coates, Geologic History of Natural Coal-Bed Fires, Powder River basin, USA, 59 Int’l J. Coal Geology 25 (2004); Bill Gabbert, Hawaii Volcano Causes 75-Acre Wildfire, Wildfire Today (Mar. 15, 2011), https://wildfiretoday.com/2011/03/15/hawaii-volcano-causes-75-acre-wildfire.

51. Kevin C. Ryan, Eric E. Knapp & J. Morgan Varner, Prescribed Fire in North American Forests and Woodlands: History, Current Practice, and Challenges, 11 Frontiers Ecology & Env’t e15 (2013).

52. Id.

53. Id.

54. Frank K. Lake et al., Returning Fire to the Land: Celebrating Traditional Knowledge and Fire, 115 J. Forestry 343 (2017); William A. Patterson III & Kenneth E. Sassaman, Indian Fires in the Prehistory of New England, in Holocene Human Ecology in Northeastern North America 107, 110 (1988).

55. Lake et al., supra note 54, at 110.

56. A. Sydney Johnson & Philip E. Hale, GTR-NE-288, The Historical Foundations of Prescribed Burning for Wildlife: a Southeastern Perspective 11, 11 (W. Mark Ford et al. eds., 2002) (“Fire is more common and more important in the environment of the South than in most other areas of the United States.”).

57. See, e.g., Michael C. Stambaugh et al., Fire History in the Cherokee Nation of Oklahoma, 41 Hum. Ecology 749 (2013); Cynthia Fowler & Evelyn Konopik, The History of Fire in the Southern United States, 14 Hum. Ecology Rev. 165, 169 (2007).

58. See Indian Removal Act, Pub. L. No. 21-148, 4 Stat. 411; Jeffrey Ostler, Surviving Genocide 247–87 (2019). I want to emphasize that not all Native people were removed from the Southeast. Today, there are reservations in Alabama, Florida, Mississippi, North Carolina, South Carolina, and Virginia. Bureau of Indian Affs., U.S. Domestic Sovereign Nations: Land Areas of Federally-Recognized Tribes, https://biamaps.doi.gov/indianlands/# (last visited Feb. 9, 2023). Over one and a half million residents in Southern states east of the Mississippi identified as American Indian on the 2020 census. Census Bureau, Race and Ethnicity in the United States: 2010 Census and 2020 Census (Aug. 12, 2021), https://www.census.gov/library/visualizations/interactive/race-and-ethnicity-in-the-united-state-2010-and-2020-census.html.

59. Ostler, supra note 58.

60. Johnson & Hale, supra note 56, at 12.

61. Id.

62. Fowler & Konopik, supra note 57, at 169.

63. Johnson & Hale, supra note 56, at 13.

64. See, e.g., Albert G. Way, Burned to Be Wild: Herbert Stoddard and the Roots of Ecological Conservation in the Southern Longleaf Pine Forest, 11 Env’t Hist. 500 (2006).

65. Id.; Johnson & Hale, supra note 56, at 13.

66. George E. Gruell, Fire on the Early Western Landscape: An Annotated Record of Wildland Fires 1776–1900, 59 Nw. Sci. 97, 102 (1985).

67. See, e.g., Ray H. Mattison, The Hard Winter and the Range Cattle Business, 1 Mont. Mag. Hist. 5 (1951); William Cronon, Nature’s metropolis: Chicago and the Great West 214 (1992), http://archive.org/details/naturesmetropoli0000cron.

68. Gruell, supra note 66, at 101 (“When burned landscapes were recorded [by contemporary reports], it often was in reference to destruction of grass needed for horse forage.”). In reality, prescribed burns improve rangeland. See, e.g., Lance T. Vermeire & Terrence G. Bidwell, Okla. Cooperative Extension Service, Intensive Early Stocking (Mar. 2017) (“The advantages of using prescribed burning include brush and forb control, enhanced forage quality, more uniform grazing distribution, and increased weight gains for livestock.”), https://extension.okstate.edu/fact-sheets/print-publications/nrem/intensive-early-stocking-nrem-2875.pdf. Thus, the different attitudes of Indigenous people and settlers may have boiled down to preconceptions.

69. For more on pervasive anti-indigenous racism, see Reginald Horsman, Scientific Racism and the American Indian in the Mid-Nineteenth Century, 27 Am. Q. 152 (1975).

70. Ned Blackhawk, The Rediscovery of America: Native Peoples and the Unmaking of U.S. History (2023) (“One of over a hundred campaigns against Indigenous peoples fought during the Civil War and Reconstruction, the Dakota War became a campaign for Indigenous elimination. Calls for the extermination of Native peoples were common throughout the era. U.S. soldiers and volunteers were ordered to carry out killings.”).

71. Homestead Act, 12 Stat. 392 (1862); Preemption Act of 1841, 5 Stat. 452 (1841).

72. Pub. L. No. 42-277, 17 Stat. 605c (1873).

73. 20 Stat. 89 (1878).

74. Gary M. Walton & Hugh Rockoff, History of the American economy 302 (6th ed. 1990).

75. Yellowstone National Park Protection Act (1872).

76. Pub. L. No. 51-561, 26 Stat. 1095 (1891).

77. Pub. L. No. 58-34, 33 Stat. 628 (1905); see also Pyne, supra note 41, at 182 (“[W]hat really put forestry in a special category was the transfer of the vast forest reserves to the Bureau of Forestry in 1905. At one stroke the Transfer Act made an obscure government agency into a landholder with an estate larger than that of many nations.”).

78. 36 Stat. 961 (1911).

79. Frank Hobbs & Nicole Stoops, Demographic Trends in the 20th Century, U.S. Census Bureau 21 (2002), https://www.census.gov/history/pdf/1970suburbs.pdf.

80. Carol Hardy Vincent, Lucas F Bermejo & Laura A Hanson, Cong. Rsch. Serv., R42346, Federal Land Ownership: Overview and Data 28 (2020).

81. Id.

82. Fowler & Konopik, supra note 57, at 164.

83. Id.

84. Id. at 170; Johnson & Hale, supra note 59, at 14.

85. Fowler & Konopik, supra note 57, at 170.

86. Id.

87. Id.

88. The 1910 Fires, Forest Hist. Soc’y, https://foresthistory.org/research-explore/us-forest-service-history/policy-and-law/fire-u-s-forest-service/famous-fires/the-1910-fires (last visited Dec. 22, 2022).

89. Stephen J. Pyne, Year of the Fires: The Story of the Great Fires of 1910, at 3 (2002).

90. Id. at 18.

91. Pyne, supra note 41, at 239.

92. Id. at 171.

93. Id.

94. Johnson & Hale, supra note 56, at 14

95. Diane M. Smith, USDA Forest Serv., FS-1085, Sustainability and Wildland Fire: The Origins of Forest Service Wildland Fire Research 37 (2017).

96. Gifford Pinchot, USDA Forest Serv., The Use of the National Forest Reserves: Regulations and Instructions 65 (1905), https://foresthistory.org/wp-content/uploads/2017/10/USFS1905UseBook.pdf.

97. Id. at 65–66

98. Id. at 66.

99. Fowler & Konopik, supra note 57, at 171.

100. Id.; Geoffrey H. Donovan & Thomas C. Brown, Be Careful What You Wish For: The Legacy of Smokey Bear, 5 Frontiers Ecology & the Env’t 73, 75 (2007).

101. Smith, supra note 93, at 36–37.

102. Donovan & Brown, supra note 98, at 75.

103. Id.

104. Fowler & Konopik, supra note 57, at 171.

105. Id. at 172.

106. Id.; Albert G. Way, Burned to Be Wild: Herbert Stoddard and the Roots of Ecological Conservation in the Southern Longleaf Pine Forest, 11 Env’t Hist. 500, 501 (2006). Stoddard is also sometimes credited with inventing the study of wildlife management through his groundbreaking study of the bobwhite quail. See id.

107. Way, supra note 104, at 513–15.

108. Fowler & Konopik, supra note 57, at 173.

109. Id.

110. Contemporary Southern-controlled fires often resemble the low-intensity scrub and bush fires of traditional indigenous and early settler prescribed burns, but they also often mimic the larger, stand-replacing fires favored by loggers. This is partly driven by the ongoing role of timber in Southern land management: removing slash and encouraging pioneer species like Southern Pine are as desirable to twenty-first-century loggers as they were to their nineteenth-century predecessors. The change in contemporary fire may also reflect fundamental changes to forest types that resulted from even the short window of fire exclusion.

111. . USDA Forest Serv. & Family Forest Rsch. Ctr., NRS-257, Family Forest (10+ Acres) Ownership Characteristics: United States 2018 (2021), https://www.srs.fs.usda.gov/pubs/62344.

112. USDA Forest Serv. & Family Forest Rsch. Ctr., NRS-257, Family Forest (10+ Acres) Ownership Characteristics: Western United States 2018 (2021), https://www.nrs.fs.fed.us/pubs/62354.

113. USDA Forest Serv. & Family Forest Rsch. Ctr., NRS-261, Family Forest (10+ Acres) Ownership Characteristics: Southeastern United States 2018 (2021), https://www.nrs.fs.fed.us/pubs/62358. Nationally, more woodlands are owned by families and individuals than any other owner. So-called “family forests” comprise nearly forty percent of all American woodlands, with corporations owning only approximately nineteen percent. States, conservation organizations, Native American tribes, and others own the final thirteen percent. These numbers are highly regionally and state specific. For example, twenty-four percent of Minnesota woods are run by the state’s Department of Natural Resources, fifty-seven percent of Maine woods are corporate, and a whopping seventy-four percent of Missouri forests are family-owned. See USDA Forest Serv. & Family Forest Rsch. Ctr., NRS-282, Family Forest (10+ Acres) Ownership Characteristics: Minnesota 2018 (2021), https://www.fs.usda.gov/nrs/pubs/rn/rn_nrs282.pdf; USDA Forest Serv. & Family Forest Rsch. Ctr., NRS-278, Family Forest (10+ Acres) Ownership Characteristics: Maine 2018 (2021), https://www.fs.usda.gov/nrs/pubs/rn/rn_nrs278.pdf; USDA Forest Serv. & Family Forest Rsch. Ctr., NRS-284, Family Forest (10+ Acres) Ownership Characteristics: Missouri 2018 (2021), https://www.nrs.fs.fed.us/pubs/62383.

114. A. Starker Leopold et al., Wildlife Management in the National Parks: The Leopold Report, Nat’l Parks Serv. (Mar. 4, 1963), https://www.nps.gov/parkhistory/online_books/leopold/leopold.htm.

115. Id.

116. Id.

117. John L. Vankat, Fire and Man in Squoia National Park, 67 Annals Ass’n Am. Geographers 17, 26 (1977).

118. Id. at 26 (quoting U. S. Dep’t of the Interior, Nat’l Park Serv., Compilation of the Administrative Policies of the National Parks and National Monuments of Scientific Significance (1970)).

119. See, e.g., The National Cohesive Wildland Fire Management Strategy, Forest & Rangelands, https://www.forestsandrangelands.gov/strategy/thestrategy.shtml (last visited Dec. 22, 2022); 2009 Flame Act, 43 U.S.C. § 1748a.

120. For example, in one NEPA challenge to federal river and fisheries management, attorneys before the court included representatives of environmental groups, regional economic development and agricultural groups, an energy company, four states, and more than seven tribes. Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 184 F. Supp. 3d 861 (D. Or. 2016).

121. See, e.g., Oversight Hearing on Burdensome Litigation and Federal Bureaucratic Roadblocks to Manage our Nation’s Overgrown, Fire-Prone National Forests Before the H. Subcommittee on Federal Lands, Committee on Natural Resources, 115th Cong. (2017).

122. S. Rep. No. 296, 91st Cong., 1st Sess. 8 (1969). See RB Jai Alai, LLC v. Sec’y of Fla. Dep’t of Transp., 112 F. Supp. 3d 1301 (M.D. Fla. 2015), vacated sub nom. Rb Jai Alai, LLC v. Sec’y of the Fla. Dep’t of Transp., No. 613CV1167ORL40GJK, 2016 WL 3369259 (M.D. Fla. Feb. 2, 2016), for additional discussion of the origins of NEPA. See also Thomas O. McGarity, Courts, the Agencies, and NEPA Threshold Issues, 55 Tex. L. Rev. 801 (1976).

123. National Environmental Policy Act of 1969, Pub. L. No. 91-190, 83 Stat. 852 (codified as amended at 42 U.S.C. §§ 4321–4370).

124. See, e.g., Jim Murphy, Undercutting Environmental Law’s Magna Carta, 35 Nat. Res. & Env’t 50 (2020); Eva H. Hanks & John L. Hanks, An Environmental Bill of Rights: The Citizen Suit and the National Environmental Protection Act of 1969, 24 Rutgers L. Rev. 230, 245 (1969) (“In form, the National Environmental Policy Act is a statute; in spirit a constitution.”).

125. 42 U.S.C. § 4321.

126. Id. § 4332(C). The definitions of “major” and “detailed statement” vary agency to agency, resulting in wildly differing number and length of NEPA documents. See Council on Environmental Quality, Length of Environmental Impact Statements (2020), https://ceq.doe.gov/docs/nepa-practice/CEQ_EIS_Length_Report_2020-6-12.pdf.

127. See, e.g., Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87 (1983) (“NEPA has twin aims. First, it ‘places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action.’ . . . Second, it ensures that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process.”).

128. 42 U.S.C. § 4342.

129. Id.

130. Council on Env’t Quality, A Citizen’s Guide to NEPA 9 (2021); EPA, National Environmental Policy Act Review Process, U.S. EPA (2013), https://www.epa.gov/nepa/national-environmental-policy-act-review-process.

131. These documents are generally (1) a Notice of Intent (NOI) announcing the agency is going to prepare an EIS; (2) at least one draft version of the EIS; (3) the final EIS; and (4) a Record of Decision (ROD), where the responsible land manager declares what action the agency will take. See Citizen’s Guide to NEPA, supra note 128, at 12.

132. Id. at 8.

133. Id. at 9; Categorical Exclusions, Nat’l Env’t Pol’y Act, https://ceq.doe.gov/nepa-practice/categorical-exclusions.html (last visited Dec. 23, 2022). Some agencies also refer to a categorical exclusion as a “CX.” See, e.g., Categorical Exclusion (CX) Determinations, U.S. Dep’t of Energy, https://www.energy.gov/nepa/nepa-documents/categorical-exclusion-cx-determinations (last visited Dec. 23, 2022).

134. Nat’l Env’t Pol’y Act, supra note 131.

135. Citizen’s Guide to NEPA, supra note 128, at 10.

136. See, e.g., Aaron M. Lien et al., The Effects of Federal Policies on Rangeland Ecosystem Services in the Southwestern United States, 37 Rangelands 152 (2015); Shorna R. Broussard & Bianca D. Whitaker, The Magna Charta of Environmental Legislation: A Historical Look at 30 Years of NEPA-Forest Service Litigation, 11 Forest Pol’y & Econ. 134 (2009).

137. Citizen’s Guide to NEPA, supra note 128, at 12.

138. See id. at 13.

139. Id. at 14.

140. 40 C.F.R. § 1501.5 (2021).

141. Id. §§ 1500–1518; see also Lisa Friedman, Trump Weakens Major Conservation Law to Speed Construction Permits, N.Y. Times (July 15, 2020), https://www.nytimes.com/2020/07/15/climate/trump-environment-nepa.html.

142. See, e.g., Sharon Buccino, Understanding Trump’s Harmful Attack on NEPA, NRDC (July 15, 2020), https://www.nrdc.org/experts/sharon-buccino/understanding-trumps-harmful-attack-nepa; Amy Kober, NEPA Rollback Puts Clean Water and Communities at Risk, Am. Rivers (July 15, 2020), https://www.americanrivers.org/conservation-resource/nepa-rollback-puts-clean-water-and-communities-at-risk; Jonathan Hahn, Trump’s NEPA Rollback Favors More Pollution and Less Community Input, Sierra (July 17, 2020), https://www.sierraclub.org/sierra/trumps-nepa-rollback-favors-more-pollution-and-less-community-input.

143. Complaint for Declaratory and Injunctive Relief at 4, Alaska Community Action on Toxics v. Council on Environmental Quality, No. 3:20-cv-05199-RS (N.D. Cal. 2020), available at https://earthjustice.org/sites/default/files/files/ceq-nepa-rulemaking-complaint.pdf.

144. Id. at 67, 80.

145. John Ruple & Mark Capone, NEPA—Substantive Effectiveness Under a Procedural Mandate: Assessment of Oil and Gas EISs in the Mountain West, 7 Geo. Wash. J. Energy & Env’t L. 39 (2016). Ruple and Capone discuss two different hypotheses for how these reductions happen but emphasize that, regardless of the manner, the change is happening through the NEPA process itself.

Researchers speculate that the NEPA process itself can drive impact reduction through several mechanisms. For example, NEPA forces a scientific analysis of a proposed action, and this analysis alone could indirectly lead to impact reduction. The “internal reform” model suggests that NEPA forces changes in agency priorities, personnel, and process that result in more sustainable decision-making. In contrast, the “external reform” model contends that the increased transparency and public involvement associated with NEPA may result in more sustainable decision-making. The internal and external models may work together to provide synergistic benefits. Our results indicate that a statistically significant reduction in project impacts occurs over the course of the NEPA process, and the largest reduction—80% of total impact reduction across all elements—occurs between publication of the draft EIS and final EIS. The reduction in impacts could be attributed to NEPA-related mechanisms, intervening variables, or a combination of both.

Id. at 47.

146. Kevin DeGood, The Benefits of NEPA: How Environmental Review Empowers Communities and Produces Better Projects, Ctr. for Am. Progress (Jan. 16, 2018), https://www.americanprogress.org/article/benefits-nepa-environmental-review-empowers-communities-produces-better-projects.

147. Elly Pepper, Never Eliminate Public Advice: NEPA Success Stories, NRDC (Feb. 1, 2015), https://www.nrdc.org/resources/never-eliminate-public-advice-nepa-success-stories.

148. How Do You Benefit from NEPA?, Protect NEPA, https://protectnepa.org/how-do-you-benefit-from-nepa (last visited Dec. 23, 2022).

149. Western Environmental Law Center et al., Comment Letter on Proposed Rule, National Environmental Policy Act (NEPA) Compliance 145 (June 13, 2019).

150. USDA Forest Serv., Supplementing 36 CFR Part 220: Addition of New Categorical Exclusion For Certain Restoration Projects Supporting Statement 12 (2019).

151. Western Environmental Law Center et al., supra note 147, at 145.

152. Mark A. Melvin, 2018 National Prescribed Fire Use Survey Report 17 (Nat’l Ass’n of State Foresters & Coal. of Prescribed Fire Councils eds., 2018), https://www.stateforesters.org/wp-content/uploads/2018/12/2018-Prescribed-Fire-Use-Survey-Report-1.pdf.

153. U.S. Gov’t Accountability Off., GAO-14-369, Little Information Exists on NEPA Analyses (2014), https://www.gao.gov/assets/gao-14-369.pdf.

154. Jarod Dunn, Econometric Model of National Environmental Policy Act Timber Projects (2018), http://library.witpress.com/viewpaper.asp?pcode=EID18-012-1.

155. Estimated Time Required to Complete the NEPA Process, U.S. Dep’t of Transp., https://www.environment.fhwa.dot.gov/nepa/timeliness_of_nepa.aspx (last visited Dec. 25, 2022).

156. Interview with Russell Owen, former Rocky Mountain Ranger District Fuels Specialist, Helena-Lewis & Clark Nat’l Forest, in Choteau, Mont. (Jan. 7, 2022).

157. See, e.g., Schedule of Proposed Action—10/01/2021 to 12/31/2021 - Kootenai National Forest, USDA Forest Serv., https://www.fs.fed.us/sopa/components/reports/sopa-110114-2021-10.html (last visited Dec 6, 2021); Schedule of Proposed Action—07/01/2021 to 09/30/2021—National Forests in Florida, USDA Forest Serv., https://www.fs.fed.us/sopa/components/reports/sopa-110805-2021-07.html (last visited Dec 6, 2021); Schedule of Proposed Action—01/01/2021 to 03/31/2021—National Forests In Florida, USDA Forest Serv., https://www.fs.fed.us/sopa/components/reports/sopa-110805-2021-01.html (last visited Dec 6, 2021).

158. Cuckoo Vegetation Management Project, USDA Forest Serv., https://www.fs.usda.gov/project/?project=42366 (last visited Dec 6, 2021).

159. Osceola Isolated Wetlands Restoration, USDA Forest Serv., https://www.fs.usda.gov/project/?project=58983 (last visited Dec 6, 2021).

160. Black Ram (Northwest Yaak) Timber Harvest, USDA Forest Serv., https://www.fs.usda.gov/project/?project=52784 (last visited Dec 6, 2021).

161. Rebecca Worby, Proper Fire Funding Continues to Elude Congress, High Country News (Dec. 11, 2017), https://www.hcn.org/issues/49.21/wildfire-proper-fire-funding-continues-to-elude-congress; Jacob Fischler, Forest Service Reports a Year of Being on High Alert for Wildfire, Missoula Current (Sept. 30, 2021), https://missoulacurrent.com/government/2021/09/forest-service-wildfire-2/ (“But that task is made more difficult by the loss of workers. The agency has lost 38 percent of its non-fire workforce in the last 20 years, Moore said. The loss of those staffers has diminished the agency’s ability to manage forests in ways that make fires less likely and severe. Arizona Democrat Tom O’Halleran said that was a result of underfunding.”).

162. USDA Forest Serv., FY 2021 Budget Justification 135–37 (2020), https://www.fs.usda.gov/sites/default/files/2020-02/usfs-fy-2021-budget-justification.pdf.

163. Alex Wigglesworth, Prescribed Burns Are Key to Reducing Wildfire Risk, but Federal Agencies Are Lagging, L.A. Times (Nov. 8, 2021), https://www.latimes.com/california/story/2021-11-08/us-forest-service-struggles-to-complete-prescribed-burns.

164. Id. For example, the 2022 Hermits Peak Fire in New Mexico. Ella Nilsen, US Forest Service Admits Errors in Routine Prescribed Burn That Sparked Largest Fire in New Mexico History, CNN (June 21, 2022), https://www.cnn.com/2022/06/21/us/hermits-peak-fire-us-forest-service-mistakes-climate/index.html.

165. Crystal Kolden, We’re Not Doing Enough Prescribed Fire in the Western United States to Mitigate Wildfire Risk, 2 Fire 30 (2019).

166. Id.

167. Id.

168. Bureau of Indian Affs., Dep’t of the Interior Departmental Manual 516 DM 10: Managing the NEPA Process 4 (2020); see also Off. of Self Governance, Bureau of Indian Affs., 2019 Self-Governance Negotiation Guidance for BIA Programs (2018).

169. Bureau of Indian Affs., Managing the NEPA Process, supra note 166, at 5.

170. 36 C.F.R. §§ 220.6(e)(6), (25) (2021).

171. 16 U.S.C. § 6501.

172. 16 U.S.C. § 6591a.

173. For more on the role of Tribal leadership and how Indigenous perspectives may be ignored by non-indigenous practitioners, see Christopher Adlam & Deniss Martinez, Project Firehawk: Decolonizing Prescribed Fire, Fire Adapted Communities Learning Network (2021), https://fireadaptednetwork.org/project-firehawk-decolonizing-prescribed-fire; Frank K. Lake & Amy Cardinal Christianson, Indigenous Fire Stewardship, in Encyclopedia of Wildfires and Wildland-Urban Interface (WUI), Fires 1–9 (Samuel L. Manzello ed., 2019). Indigenous attitudes are of course not monolithic, and fire is not universal. But many tribes do see controlled fire as a key part of cultural heritage and spirituality. See, e.g., Jonathan W. Long, Frank K. Lake & Ron W. Goode, The Importance of Indigenous Cultural Burning in Forested Regions of the Pacific West, USA, 500 Forest Ecology & Mgmt. 119597 (2021); M. Kat Anderson & Frank K. Lake, California Indian Ethnomycology and Associated Forest Management, 33 J. Ethnobiology 33 (2013); Tony Marks-Block & William Tripp, Facilitating Prescribed Fire in Northern California Through Indigenous Governance and Interagency Partnerships, 4 Fire 37 (2021).

174. Malcolm North, Brandon M. Collins & Scott Stephens, Using Fire to Increase the Scale, Benefits, and Future Maintenance of Fuels Treatments, 110 J. Forestry 392 (2012).

175. By the Numbers, USDA Forest Serv. (Nov. 2013), https://www.fs.usda.gov/about-agency/newsroom/by-the-numbers.

176. Bureau of Indian Affs., Off. of Tr. Servs., https://www.bia.gov/bia/ots (last visited Dec. 26, 2022).

177. Off. of Self Governance, Bureau of Indian Affs., supra note 166.

178. While NEPA analysis occurs in the context of informal administrative adjudication, and not rulemaking, its structure of a published plan followed by public comment greatly resembles notice and comment rulemaking and is thus subject to many of the same critiques. Richard Stoll’s assessment of the importance of timing in notice and comment procedures certainly applies:

[T]he public comment stage of a proposed rule is, for most rules, pretty much the 11th hour. If the agency were to make a dramatic change in direction, it would either have to abandon years of work or, at a minimum, go through another (arduous) round of notice and comment. Therefore, achieving fundamental change at this stage is often an enormous uphill battle.

Richard G. Stoll, Effective Written Comments in Informal Rulemaking, Admin. L. & Reg. News, Summer 2007, at 15. Like in notice and comment rulemaking, NEPA analysis occurs after months or years of agency planning, ossifying agency decision-making.

179. Eric J. Gustafson, Expanding the Scale of Forest Management: Allocating Timber Harvests in Time and Space, 87 Forest Ecology & Mgmt. 27 (1996).

180. Shorna R. Broussard & Bianca D. Whitaker, The Magna Charta of Environmental Legislation: A Historical Look at 30 Years of NEPA-Forest Service Litigation, 11 Forest Pol’y & Econs. 134 (2009).

181. Chevron, U.S.A., Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837 (1984). Under Chevron, courts defer to an agency’s interpretation of its substantive statute so long as it is reasonable and not contrary to the stated intent of Congress. Cong. Rsch. Serv., Chevron Deference: A Primer (2017), https://sgp.fas.org/crs/misc/R44954.pdf. In practice, Chevron acts as a wide umbrella, protecting agency action from challenges. However, this area of administrative law is rapidly shifting; recent Supreme Court jurisprudence may evidence a shift away from Chevron and towards its precursor, Skidmore deference, which allows courts to consider other factors, such as agency consistency, in weighing the agency’s interpretation. See Richard J. Pierce Jr., Is Chevron Deference Still Alive?, Reg. Rev. (July 14, 2022) https://www.theregreview.org/2022/07/14/pierce-chevron-deference.

182. Interview with Russell Owen, supra note 154.

183. Cynthia Fowler & Evelyn Konopik, The History of Fire in the Southern United States, 14 Hum. Ecology Rev. 165 (2007).

184. Sarah M McCaffrey, Prescribed Fire: What Influences Public Approval?, in Fire in Eastern Oak Forests: Delivering Science to Land Managers 192 (Matthew B. Dickinson ed., 2006).

185. Id. at 193–94.

186. Id. at 194–96, 197.

187. Id. at 197.

188. See, e.g., Press Release, White Mountain Nat’l Forest, Prescribed Burn Planned (Mar. 29, 2021) (on file with author) (“At a date to be determined after the fire, the USFS will host an informational field trip for the public. All are welcome to take a tour of Hudson Farm and learn more about why prescribed fire is used to manage grassland bird habitat on this property.”); Press Release, Shasta-Trinity Nat’l Forest, South Fork Sacramento Public Safety and Forest Restoration Project Public Field Trip (June 11, 2021), https://www.fs.usda.gov/detail/stnf/news-events/?cid=FSEPRD921639; Gus Smith & Isaiah Hirschfield, Nat’l Park Serv., Fire Ecology Annual Report: Yosemite Nat’l Park (2008), https://irma.nps.gov/DataStore/DownloadFile/520874.

189. McCaffrey, supra note 182, at 196.

190. Interview with Russell Owen, supra note 154.

191. See, Suraj Ahuja & Laurie Perrot, National Environmental Policy Act Disclosure of Air Quality Impacts for Prescribed Fire Projects in National Forests in the Pacific Southwest Region (Proceedings of the 2002 Fire Conference: Managing Fire and Fuels in the Remaining Wildlands and Open Spaces of the Southwestern United States), https://www.fs.usda.gov/research/treesearch/34703. Federal regulations often consider the impacts of smoke from prescribed burns, but exempt impacts from potential wildfire smoke. See, e.g., Scott L. Stephens et al., U.S. Federal Fire and Forest Policy: Emphasizing Resilience in Dry Forests, 7 Ecosphere e01584 (2016) (“Wildfire smoke in the Clean Air Act is exempted from regulatory compliance standards, while smoke from prescribed and managed fire is regulated.”).

192. Interview with Russell Owen, supra note 154.

193. See, e.g., James D. Johnston et al., Mechanical Thinning Without Prescribed Fire Moderates Wildfire Behavior in an Eastern Oregon, USA Ponderosa Pine Forest, 501 Forest Ecology & Mgmt. 119674 (2021).

194. Eric E. Knapp et al., Efficacy of Variable Density Thinning and Prescribed Fire for Restoring Forest Heterogeneity to Mixed-Conifer Forest in the Central Sierra Nevada, CA, 406 Forest Ecology & Mgmt. 228 (2017); Malcolm North, Jim Innes & Harold Zald, Comparison of Thinning and Prescribed Fire Restoration Treatments to Sierran Mixed-Conifer Historic Conditions, 37 Can. J. For. Res. 331 (2007).

195. Interview with Russell Owen, supra note 154.

196. Scott Wyland, Cerro Grande Fire Remains Burned into New Mexico’s Memory 20 Years Later, Santa Fe New Mexican (May 10, 2020), https://www.santafenewmexican.com/news/local_news/cerro-grande-fire-remains-burned-into-new-mexicos-memory-20-years-later/article_190f6252-896c-11ea-8ab4-e78b330ac4e3.html.

197. Id.; Lonnie et al., supra note 25.

198. Wyland, supra note 194; Lonnie et al., supra note 25.

199. Id.

200. Id.

201. Fire Policy Under Scrutiny, CBSNews.com (May 11, 2000, 6:40 PM), https://www.cbsnews.com/news/fire-policy-under-scrutiny.

202. George Johnson, Ideas & Trends: Chaos Theory; Harness Fire? Mother Nature Begs to Differ, N.Y. Times (May 21, 2000), https://www.nytimes.com/2000/05/21/weekinreview/ideas-trends-chaos-theory-harness-fire-mother-nature-begs-to-differ.html.

203. U.S. Suspends Controlled Fires, Chi. Trib. (May 13, 2000), https://www.chicagotribune.com/news/ct-xpm-2000-05-13-0005130098-story.html.

204. Micah Morrison, Environmental Dogma Goes Up in Flames, Wall St. J. (May 16, 2000), https://www.wsj.com/articles/SB958435213779302914.

205. See, e.g., Evans-Carmichael v. United States, 250 F. App’x 256 (10th Cir. 2007); Velarde v. Rio Arriba Bd. of Cty. Comm’rs, No. CV 01-0877 DJS/RLP, 2005 WL 8163908 (D.N.M. Apr. 1, 2005); Safeco Ins. Co. of Am. v. Oliver, No. CV-03-1268 JC/DJS, 2006 WL 8444554 (D.N.M. Jan. 23, 2006).

206. Nat’l Park Serv., Cerro Grande Prescribed Fire Board of Inquiry Final Report (2001), https://www.nwcg.gov/sites/default/files/wfldp/docs/sr-cg-cerro-grande-board-of-inquiry-report-feb-2001.pdf.

207. Lonnie et al., supra note 25.

208. Fire Management: Lessons Learned from the Cerro Grande (Los Alamos) Fire and Actions Needed to Reduce Fire Risk: Hearing Before the Subcomm. on Forests and Forest Health of the H. Comm. on Resources, 106th Cong. (2000).

209. U.S. Suspends Controlled Fires, supra note 201.

210. Interview with Russell Owen, supra note 154.

211. Id. This concern about liability is not driven by state laws, which are relatively similar across the Northwest and Southeast. See Melvin, supra note 150, at 15 fig.17.

212. Id. The fuels manager elaborated in a subsequent email that “the risk assumed by a burn boss is primarily related to the potential of having anyone injured or killed in connection to a prescribed fire, or the loss of private property or infrastructure resulting from a prescribed fire. This is also a risk that line officers have to bear. Burn bosses know, though, that when a burn goes wrong, they will be the focus of attention (not to diminish the pressure and repercussions for others.” E-mail from Russell Owen, former Rocky Mountain Ranger District Fuels Specialist, Helena-Lewis & Clark Nat’l Forest to Jane Jacoby (Apr. 7, 2022, 19:15 EST) (on file with author).

213. See, e.g., Bureau of Land Mgmt., Final Programmatic EIS for Fuel Breaks in the Great Basin—Volume 1: Executive Summary, chs. 1–5, at 25–26, https://eplanning.blm.gov/public_projects/nepa/71149/20012654/250017231/FuelBreaks_FEIS_Vol1_ES-Ch1-5.pdf (2020).

214. See, e.g., Benjamin A. Jones & Robert P. Berrens, Prescribed Burns, Smoke Exposure, and Infant Health, 39 Contemp. Econ. Pol’y 292 (2021); Balmes, supra note 8, at 881.

215. Balmes, supra note 8, at 881–82.

216. See, e.g., Bureau of Land Mgmt., Final Programmatic EIS for Fuel Breaks in the Great Basin - Volume 3: Apps. B through N at N50, N55–56, N61 N72, https://eplanning.blm.gov/public_projects/nepa/71149/20012654/250017231/FuelBreaks_FEIS_Vol1_ES-Ch1-5.pdf (2020).

217. See, e.g., Editorial, COVID-19 Era Is No Time to Play with Fire, Yakima Herald-Republic (Apr 14, 2020), https://www.yakimaherald.com/opinion/editorials/editorial-covid-19-era-is-no-time-to-play-with-fire/article_992880c0-3a2c-5b65-b260-aa410b07d0e3.html.

218. Will McCarthy, Will Smoke from Controlled Burns Hurt Covid-19 Patients?, N.Y. Times (May 4, 2020), https://www.nytimes.com/2020/05/04/us/coronavirus-california-air-pollution.html; Eli Cahah, COVID-19 Worries Douse Plans for Fire Experiments, Science (Sept. 11, 2020), https://www.science.org/content/article/covid-19-worries-douse-plans-fire-experiments; Press Release, U.S. Army, Prescribed Burns of Forest Debris, Halted During Pandemic, Back on with Much Work Ahead (Mar. 24, 2021), https://www.army.mil/article/244613/prescribed_burns_of_forest_debris_halted_during_pandemic_back_on_with_much_work_ahead; Nichola Groom, Trump Administration Halts Wildfire Prevention Tool in California over Coronavirus, Reuters (Apr. 15, 2020), https://www.reuters.com/article/us-health-coronavirus-usa-wildfires-idUSKCN21X1HD.

219. North, Collins & Stephens, supra note 172, at 398; Bureau of Land Mgmt., Final Programmatic EIS for Fuel Breaks in the Great Basin - Volume 1: Executive Summary, chs. 1–5, at 25–26, https://eplanning.blm.gov/public_projects/nepa/71149/20012654/250017231/FuelBreaks_FEIS_Vol1_ES-Ch1-5.pdf (2020).

220. See, e.g., Wilderness Workshop v. U.S. Bureau of Land Mgmt., 342 F. Supp. 3d 1145, 1156 (D. Colo. 2018) (“BLM acted in an arbitrary and capricious manner and violated NEPA by not taking a hard look at the indirect effects resulting from the combustion of oil and gas in the planning area under the RMP. BLM must quantify and reanalyze the indirect effects that emissions resulting from combustion of oil and gas in the plan area may have on GHG emissions.”).

221. David Heywood, NEPA and Indirect Effects of Foreign Activity: Limiting Principles from the Presumption Against Extraterritoriality and Transnational Lawmaking, 2013 BYU L. Rev. 691 (2013).

222. Christy Goldfuss, Sally Hardin & Marc Rehmann, 12 Climate Wins From the National Environmental Policy Act, Ctr. for Am. Progress (May 29, 2019), https://www.americanprogress.org/article/12-climate-wins-national-environmental-policy-act.

223. 43 C.F.R. § 46.30 (No action alternative “has two interpretations. First ‘no action’ may mean ‘no change’ from a current management direction or level of management intensity (e.g., if no ground-disturbance is currently underway, no action means no ground-disturbance). Second ‘no action’ may mean ‘no project’ in cases where a new project is proposed for implementation”).

224. North, Collins & Stephens, supra note 172, at 398.

225. Interview with Russell Owen, supra note 154.

226. April Reese, Previous Burn, Restoration Work Helped Spare Los Alamos from Catastrophe, N.Y. Times (July 7, 2011), https://archive.nytimes.com/www.nytimes.com/gwire/2011/07/07/07greenwire-previous-burn-restoration-work-helped-spare-lo-38246.html.

227. See, e.g., Joanne Vining, Melinda S. Merrick & Emily A. Price, The Distinction Between Humans and Nature: Human Perceptions of Connectedness to Nature and Elements of the Natural and Unnatural, 15 Hum. Ecology Rev. 1 (2008).

228. Robin Wall Kimmerer, Braiding Sweetgrass: Indigenous Wisdom, Scientific Knowledge and the Teachings of Plants (2013).

229. See, e.g., Indigenous Principles of Just Transition, Indigenous Environmental Network (2017), http://www.ienearth.org/wp-content/uploads/2017/10/IENJustTransitionPrinciples.pdf (“A Just Transition affirms the need for restoring indigenous life ways of responsibility and respect to the sacred Creation Principles and Natural Laws of Mother Earth and Father Sky, to live in peace with each other and to ensure harmony with nature, the Circle of Life, and within all Creation.”).

230. Lake & Christianson, supra note 171, at 1–9.

231. Marks-Block & Tripp, supra note 171, at 37.

232. Id.

233. See Who We Are, Ne. Wash. Forestry Coal., https://www.newforestcoalition.com/our-vision (last visited Dec. 27, 2022).

234. Colville Nat’l Forest, North Fork Mill Creek A to Z Project Environmental Assessment (2016), https://www.fs.usda.gov/nfs/11558/www/nepa/97804_FSPLT3_3106469.pdf; Russ Vaagen, A to Z Forest Restoration Project, Vaagen Timbers, https://vaagentimbers.com/stories/finding-the-perfect-log-while-conserving-the-forest-2 (last visited Dec. 27, 2022).

235. Off. of the Assistant Sec’y–Indian Affs., 59 IMA 3-H, Indian Affairs National Environmental Policy Act (NEPA) Guidebook (2012), https://www.bia.gov/sites/default/files/dup/assets/public/raca/handbook/pdf/59_IAM_3-H_v1.1_508_OIMT.pdf.

236. Stephanie Young, Categorical Exclusions: Are Agencies Silencing the Public’s Voice?, 23 Nat. Res. & Env’t 39 (2009).

237. Kevin H. Moriarty, Circumventing the National Environmental Policy Act: Agency Abuse of the Categorical Exclusion, 79 N.Y.U. L. Rev. 29 (2004).

238. See S. 716, 117th Cong. (2021).

239. See, e.g., Press Release, Office of Congresswoman Liz Cheney, Cheney Introduces NEPA Reform Bill to Streamline Regulations & Empower State/Local Leaders (June 11, 2021), https://cheney.house.gov/2021/06/11/cheney-introduces-nepa-reform-bill-to-streamline-regulations-empower-state-local-leaders.

240. Efforts by democrats to endorse widespread NEPA reform have had limited impact, and raised concerned eyebrows at environmental organizations. See Emma Dumain & Kelsey Brugger, The House Democrat Trying to Move His Party on NEPA Reformi E&E News (Feb. 17, 2023), https://www.eenews.net/articles/the-house-democrat-trying-to-move-his-party-on-nepa-reform.

241. Kanahus Manuel & Naomi Klein, Opinion: ’Land Back’ Is More Than a Slogan for a Resurgent Indigenous Movement, Globe & Mail (Nov. 19, 2020), https://www.theglobeandmail.com/opinion/article-land-back-is-more-than-a-slogan-for-a-resurgent-indigenous-movement. Between the arrival of European settlers and today, Indigenous people in North America were disposed of ninety-nine percent of their land. Justin Farrell et al., Effects of Land Dispossession and Forced Migration on Indigenous Peoples in North America, 374 Science eabe4943 (2021).

242. See LANDBACK, https://landback.org (last visited Dec. 27, 2022); Jim Robbins, How Returning Lands to Native Tribes Is Helping Protect Nature, Yale E360 (June 3, 2021), https://e360.yale.edu/features/how-returning-lands-to-native-tribes-is-helping-protect-nature; Anna V. Smith, When Public Lands Become Tribal Lands Again, High Country News (Aug. 16, 2019), https://www.hcn.org/issues/51.15/tribal-affairs-when-federal-lands-become-tribal-lands-again-public-lands.

243. #LandBack Is Climate Justice, Lakota People’s L. Project (Aug. 14, 2020), https://lakotalaw.org/news/2020-08-14/land-back-climate-justice.

244. Robbins, supra note 242.

245. Id.

246. Id.; see also The Nimmie-Caira Project, New S. Wales Gov’t, https://www.industry.nsw.gov.au/water/plans-programs/state-significant-projects/nimmie-caira (last visited Dec. 27, 2022); Exploring Gayini–Nari Nari Country, Nature Conservancy Austl., https://www.natureaustralia.org.au/what-we-do/our-priorities/land-and-freshwater/land-freshwater-stories/gayini (last visited Dec. 27, 2022).

247. Indian Self-Determination and Education Assistance Act of 1975, Pub. L. 93-638, § 2, 88 Stat. 2203 (codified as amended at 25 U.S.C. § 450a–n).

248. See Kevin Washburn, Facilitating Tribal Co-Management of Federal Public Lands, 2022 Wis. L. Rev. 263 (2022). As Washburn notes, there are multiple parallels to the type of relationship created by ISDA contracts: “Philosophically, the ISDA contracting regime can be seen, on the one hand, as tribes acting like independent government contractors that provide federal services for a fee. On the other hand, ISDA also could be viewed as treating tribes like states. Numerous federal programs, across a wide spectrum ranging from entitlement programs to environmental policy, simply provide a framework, and sometimes financing, for programs that are actually implemented by state governmental agencies. But the tribal self-determination regime is a little different from a state running a federal program . . . . ” Id. at 271. For more on state management of federal lands, see Carol Hardy Vincent & Alexandra M. Wyatt, Cong. Rsch. Serv., R44267, State Management of Federal Lands: Frequently Asked Questions (2016).

249. Mary Ann King, Co-Management or Contracting? Agreements Between Native American Tribes and the U.S. National Park Service Pursuant to the 1994 Tribal Self-Governance Act, 31 Harv. Env’t L. Rev. 475, 521 (2007) (“The [Grand Portage Band, Minnesota Chippewa Tribe] has run the [Grand Portage National Monument] maintenance program more efficiently and cost-effectively than the NPS.”).

250. Washburn, supra note 248, at 290. (“For the most recent reporting period, the BLM has two such contracts; the Bureau of Reclamation has four; the National Park Service has three . . . and the Fish and Wildlife Service has only one.”). In the months after Washburn’s survey, USFS announced eleven additional co-stewardship agreements, bringing the current total to twenty one. USDA Forest Serv., USDA Forest Service Signs 11 New Agreements to Advance Tribal Co-stewardship of National Forests (2022), https://www.fs.usda.gov/news/releases/new-agreements-advance-tribal-co-stewardship (last visited Jan. 24, 2023).

251. See, e.g., Memorandum from Arati Prabhakar, Office of Sci. & Tech. Pol’y to Fed. Dep’ts & Agencies (Nov. 30, 2022), https://www.whitehouse.gov/wp-content/uploads/2022/12/OSTP-CEQ-IK-Guidance.pdf (“The Federal Government recognizes the valuable contributions of the Indigenous Knowledge that Tribal Nations and Indigenous Peoples have gained and passed down from generation to generation and the critical importance of ensuring that Federal departments and agencies’ . . . consideration and inclusion of Indigenous Knowledge is guided by respect for the sovereignty of self-determination of Tribal Nations . . . .”).

252. Sibyl Diver, Co-management as a Catalyst: Pathways to Post-colonial Forestry in the Klamath Basin, California, 44 Hum. Ecol. 533, 534 (2016) (“Risks of co-optation are a particular challenge for Indigenous communities working to achieve greater self-determination, a term that signifies the ability of Indigenous communities to participate meaningfully in the creation of the government institutions that they live with.”).

253. Washburn, supra note 248.

254. See Adlam & Martinez, supra note 173.