There are unresolved questions as to whether or not the Forest Service is legally obligated to implement the Fire Policy, and what laws or regulations govern the development of FMPs. The following is not intended to answer those questions, but merely to introduce important information and arguments for further exploration of this issue.
The Forest Service Manual and Handbook and FMPs
The clearest thing approaching a legal requirement for developing FMPs comes from several directives written in the 5100 series of the Forest Service Manual (FSM), and the 5108 and 5109.19 sections of the Forest Service Handbook (FSH). The Manual and Handbook codifies the agency’s fire policies, practices, and procedures. FSM Directive 5120.42b requires line officers to prepare a Forest Fire Management Plan which is defined as "A strategic plan that defines a program to manage wildland and prescribed fires and documents the fire management program in the approved land use plan." According to FSM Directive 5141.2, "the FMP tiers directly from the direction in the Forest Plan, and guides achievement of resource objectives through the use of fire."
Other specific Forest-wide directives for FMPs include:
* "Develop a fire management plan based on direction in land and resource management plans and interagency plans and assessments. Amend Forest plans where necessary to meet fire management objectives. Use the best available science to assess and plan on a landscape scale, across agency boundaries." (FSM 5103.2)
* "Conduct fire management planning, preparedness, suppression, monitoring, and research, and fire use on an interagency basis and involve affected partners. Integrate with forest planning whenever possible." (FSM 5103.3)
Some FMP-related directives in the 5130 series that discuss Forest-wide wildland fire suppression policy are:
* "Ensure a prompt and appropriate response to each wildfire that exceeds the parameters in the fire management plan (FSM 5121). Initial response should comply with direction contained in the Fire Management Plan." (FSM 5131.03)
* "Make timely decisions regarding management of a wildland fire. If a wildfire that is not caused by humans is burning in an area with an approved land and resource management plan and an approved fire management plan, and the objectives of the plans are being met, document the response decision and take appropriate action. If events cause a delay in the decision, and this delay may result in an increased risk to firefighter or public safety, the only appropriate response is to control the fire." (FSM 5131.03)
There are also some FMP-related directives in the 2324 series of the Manual that are specific to designated Wilderness Areas, currently the only places the Forest Service allows wildland fire use:
* "Document specific objectives, standards, and guidelines for the control of wildfire and the use of prescribed fire within each wilderness (FSM 5100, 5150, and 5190) in a forest plan or, where the forest planning process has not been completed, in either an interim wilderness management or fire management area plan. Document specific direction for fire program implementation in the forest fire management action plan." (FSH 5109.19) (FSM 2324.22,3).
* "No fire may be ignited or allowed to burn without documented, preplanned, specified conditions." (FSM 2324.22,3).
* "Fire ignited by lightning may be permitted to burn if prescribed in an approved plan." (FSM 2324.22,5 and 5150).
Regional Foresters are responsible for:
* "Approving the use of prescribed fire on a wilderness by wilderness basis through approval of the appropriate management plan. The management plan sets forth the standards and guidelines for the use and application of prescribed fire and the methods of monitoring results." (FSM 2324.04b)
Forest Supervisors are specifically assigned the responsibility to:
* "Plan, organize, and implement a preparedness program that is documented in the Forest's Fire Management Plan, including a mobilization guide, preparedness actions, wildland fire prescriptions, appropriate management response for all wildland fires, a schedule of reviews, and a wildfire suppression training and qualifications program. (FSM 5120.43.1)
* Ensure that the plan is adjusted annually to reflect current conditions, budget, or other significant considerations. (FSM 5120.43.2)
* Providing specific direction on fire use through annual approval of the Fire Management Plan consistent with the approved forest plan. (FSM 5140.42)
District Rangers are assigned the responsibility to:
* Ensure an Operations Fire Plan is prepared as required (FSM 5120.44.1)
* Maintain an adequate organization to implement the actions defined in the Fire Management Plan. (FSM 5120.44.2)
* Implement the Fire Management Plan when conditions make it necessary. (FSM 5120.44.3)
* Safely suppress wildfires at minimum cost consistent with land and resource management objectives and fire management direction as stated in Fire Management Plans. (FSM 5130.2)
Despite these directives in the Forest Service’s Manual and Handbook, line officers have not been held accountable for failure to complete FMPs, and there are few apparent consequences for this failure. The directives in the Forest Service Manual and Handbook are not, by themselves, enforceable by citizen lawsuits, either. Other environmental protection laws and regulations must be utilized to press a case for the legal obligation of federal agencies to develop FMPs and implement the Fire Policy.
The National Environmental Policy Act and FMPs
The National Environmental Policy Act (NEPA) does not require FMPs, but the argument can be made that FMPs should require NEPA. According to the federal Wildland and Prescribed Fire Management Policy Implementation Procedures Reference Guide, "The FMP will strive to satisfy NEPA requirements." The National Academy of Public Administration also declared that, "Fire-related plans and proposals, including FMPs, are subject to NEPA and ESA requirements," as well as other legal environmental regulations. In a special interagency teleconference broadcast on April 8, 1998, "Managing Wildland Fire: From Policy To Implementation," top federal officials repeatedly emphasized the critical importance of public involvement and NEPA in fire management planning and implementation of the Fire Policy.
The teleconference announcer instructed federal employees across the nation that,
"Planning is key to implementing Fire Policy on the ground. Good planning is the cornerstone of all Nine Guiding Principles and all 13 Policies contained in this report…and of course, the public must be a key player from the earliest stages of planning if we’re to have the benefit of their input and support, which is critical to the success of our land management programs. We must ensure that a fire management plan is developed and continuously updated for all areas subject to wildland fire...The Plan and Project must also meet NEPA requirements before the Project begins." (emphasis added)
Several high-level officials from all federal land management agencies reinforced the critical importance and proper means of developing FMPs:
* Arch Wells, Chief Forester of the Bureau of Indian Affairs, said:
"The affected public must be involved in development of the land use plans and associated fire management plans for maximum ownership, cooperation (and) coordination through understanding and participation...Good plans result in sound, efficient decisions. The bottom line is this: without approved quality fire management plans, the only option available is total suppression with associated risks, costs, and unplanned resource loss." (emphasis added)
* Sheryl Maddux, Forest Service District Ranger from Tennessee said:
"Without an approved fire management plan that complies with NEPA, smoke management and public involvement, we only have one management option for wildfire and that is total suppression. Agency administrators need to take an active role in developing a common understanding of fire management plans both to agency employees and to the affected public. The public must be brought along throughout the planning process and their input, both positive and negative, must be addressed. This is a prime opportunity for agency administrators to explain and provide positive support for the new Fire Policy and the fire management plan or program on their unit." (emphasis added)
* Rick Coleman from the Washington Office of the U.S. Fish and Wildlife Service said:
"Teamwork is vital to successful planning. By including land managers and neighbors and stakeholders and resource specialists and fire specialists and the public, we gather all those important perspectives necessary to write the best fire management plan...Resource management specialists and the public need to help the fire staff develop the fire management plan...Agency administrators and staff specialists should not be shy about working with any group." (emphasis added)
* Elaine Marquis-Brong from the Bureau of Land Management in California said:
"Fire Planning is a must tied to the Fire Policy. That includes NEPA. The NEPA process is an extremely important process not only for the effects of fire, but the effects of accumulated fuels on the ecosystem and what impacts and tradeoffs (there) are. I’m going to say it: NEPA is an integral part of the Fire Land Policy."
(emphasis added)
Unfortunately, despite these clear, affirmative statements, the Forest Service as an institution is adamantly opposed to using NEPA for fire planning. The agency's official position is that, "A site-specific NEPA document is not prepared prior to the approval of the FMP because a FMP does not propose, authorize, or permit site-specific federal actions." The agency insists that the only role for NEPA in fire planning is at the general Forest Plan stage or a site-specific Project stage; the agency does not do "middle tier NEPA" for FMPs. Thus, several Forests have delayed implementation of the Fire Policy and development of new FMPs until scheduled Forest Plan revisions, which in some cases are several years away from getting started.
Most existing Forest Plans contain sparse fire-related scientific analysis or disclosure of impacts, especially fire exclusion and suppression impacts, and do not include pertinent new information from the Fire Policy, the National Fire Plan, and Comprehensive Strategy. This makes nearly all Forest Plans obsolete from the standpoint of fire management. Regardless, this should not deter efforts to do fire planning, for as the 2001 Policy Update repeatedly stated, "(T)he existence of obsolete land management plans should not be reason for failure to complete or update FMPs."
However, as the NAPA Report noted, there is a problem that without adequate Forest Plans, "the potential exists for the FMP to drive decisions about how to manage the land, even though the FMP does not have the same level of public involvement, regulatory scrutiny, and other inputs." Thus, for example, grandiose fire management strategies such as constructing a fuelbreak system over an entire National Forest may have been outlined in the FMP, but was never even mentioned in the Forest Plan or any other programmatic NEPA document, thereby evading full environmental impact analysis and public input until the Project stage in which citizens may critique the impacts of commercial timber extraction, but the underlying fire management strategy is an untouchable foregone conclusion.
The net effect is that the Forest Service is failing to develop high-quality FMPs that comply with the Fire Policy and NEPA--an obvious effect of the failure to include the public as partners in fire planning. For those National Forests that do have current, approved FMPs, the NAPA study revealed that federal agencies have not identified what would constitute a "good" FMP that complies with the Fire Policy, and thus FMPs differ greatly in quality from place-to-place and agency-to-agency. A serious argument could be made that there is not a Forest Service FMP in the country that fully complies with the Fire Policy, particularly its mandates for the use of the best available science and public involvement. While vigorously opposing the use of NEPA, the Forest Service has not provided any guidelines for involving non-Forest Service personnel and the public in developing FMPs. Instead, there is a basic institutional insularity that enables the agency to evade public input and legal accountability in FMPs. Explicit legislation and/or litigation will probably be required in order to clarify the legal requirements for developing FMPs, including defining the public’s rights and responsibilities under NEPA to get involved in fire planning.