What are the real impacts that are all too often the result of frivolous appeals and litigation on our public lands? One watershed in Northern California, the North Fork of the Feather River paints a pretty clear picture. The majority of this watershed is located in Plumas County with its confluence entering Lake Oroville in Butte County. Since 1999, approximately 250,000 acres of this watershed has burned. Now due to the Chips Fire an additional 75,000 acres has been impacted. So in just over 10 years, one watershed, two counties, several hydro-electric facilities, untold natural resources, and numerous wildlife species are paying the price for environmental groups suing the Forest Service over the well-being of individual species, how they prepare an Environmental Assessment or Environmental Impact Statement and stopping forest management projects.
At the heart of the debate are two primary pieces of legislation; the National Environmental Policy Act (NEPA) and the Equal Access to Justice Act (EAJA). NEPA was legislated to require all federal agencies follow set policy and direction to assure that “major” federal actions were offered for review and comment to the public. Since NEPA was enacted in 1969, little oversight and updating of this law has occurred. Today, NEPA is used to test whether the agency’s written documents are adequate or fallible to the appeals filed by various environmental groups. Unfortunately, the decisions as to whether a project can move forward and the forest getting treated may center on protecting a single species while the eventual demise of a whole ecosystem as well as the communities and counties takes place.
Environmental groups or individuals have taken little or no responsibility for the ever increasing catastrophic wildfire loses in areas where they appealed projects; rather they are more than eager to blame industry and federal agencies for causing the problem. Today, however most appeals and litigation are on projects where thinning is recommended and trees harvested are in 10 to 16 inches diameter, hardly old growth timber. It is these same thinning projects that need to be implemented if we ever want our ecosystem, watershed and forest health put back into a more historic natural state.
NEPA was intended for “major” federal actions, and local monitoring and research findings show the majority of all thinning projects do not cause harm to species or other resources. NEPA also allows for such projects to be accomplished by Categorical Exclusions (CEs) and need not follow a lengthy and exhaustive review. By using CEs, projects would get completed in a timely manner as well as saving millions of dollars in unnecessary analysis and document writing. Our court system appears to have little compassion for the ecosystem or the human element that is also required to be considered in all NEPA documents.
The second piece of legislation impacting federal forest management is EAJA. In 1980 EAJA was passed to give ordinary citizens the ability to recover attorney fees and costs in cases against the federal government. As the 1980 conference committee report for EAJA explains, the Act’s premise is that individuals and small businesses did not seek review of unreasonable government actions because of the expense involved, which was compounded by the disparity in expertise and resources between the government and the individual or business involved. A prevailing plaintiff under EAJA may recover fees against the government, but if the government prevails, the plaintiff cannot recover their attorney fees.
EAJA was amended in 1985 and again in 1996 to allow non-profit 501(c)(3) organizations to recover fees. Since then, lawsuits by non-profit organizations have proliferated. By June 2004, there were 7,100 environmental lawsuits. A well-intended law has now become the primary fund raiser for many organizations as they regularly sue the government, and prevent projects from moving forward. Between 1980 to the mid 1990’s, the U.S. Treasury paid $34 million in legal fees under EAJA for cases filed against the government. In 1995 Congress and the agencies halted tracking and reporting of payments made through EAJA.
The EAJA sets eligibility limits on recovery. An individual’s net worth must be no more than $2 million and a business must have less than 500 employees and a net worth of no more than $7 million. But 501(c)(3) non-profits are not subject to these income limits and environmental groups who have tens of millions of dollars in assets, can still recover EAJA compensation of legal fees and expenses when they prevail in a lawsuit.
How does all of this fit with the North Fork of the Feather River Watershed and the approximate 300,000 acres burned since 1999? Three of the fires had projects planned and at least one signed decision that were held up by litigation. The first was the Flea Project that started in 2005 with its original scoping and was appealed – then in 2008 the Camp Fire occurred in the planning area and burned over 200 homes with one fatality. The Moonlight Fire was the largest single fire that burned 65,000 acres and had designed projects that were never implemented. Finally, the Creeks Project that was started in 2006, had a signed decision, was litigated, and just had a second signed decision to be approved this month, is now part of the Chips Fire. Instead of having forest health projects that would have been implemented and provided protection to all forest resources as well as providing jobs in our rural county, we now have total devastation covering hundreds of thousands of acres.
Unfortunately, the majority of these acres that are lost to wildfire do not catch the attention of either local or national news because they are not destroying homes and property. In the longer term, they are impacting all of us in more ways through the loss of a sensitive ecosystem, watershed values, recreation opportunity and eventual social and economic impacts to our rural communities and counties.
Bill Wickman is a spokesperson for the Sustainable Forest Action Coalition.