Below is a blog post by Jacob Tomasulo of the Competitive Enterprise Institute (CEI), a nonprofit organization based in Washington, D.C., that advocates for regulatory reform on a wide range of policy issues. The Rocky Mountain Elk Foundation sees eye-to-eye with CEI’s view on the Fix Our Forests Act. 

It’s not often that legislation has as much bipartisan support as H.R. 471, the Fix Our Forests Act (FOFA) does. 

On January 23, FOFA passed the House with an overwhelming vote of 279-141, including 64 Democrat votes. Unfortunately, the Senate has not moved much on the bill. 

The goal of this bill is to promote better forest management, including the mitigation of catastrophic wildfires that have plagued the western United States. 

While eradicating wildfires entirely is impossible given that fire is a natural ecological process, wildfires today tend to be larger and more destructive than in the past. This is partly the result of decades of inadequate forest management. The policies enacted through FOFA could promote better forest management and help restore fire to its natural ecological role. 

One of the most important provisions within FOFA would stop the application of Cottonwood Environmental Law Center v U.S. Forest Service. 

This 2015 decision from the 9th Circuit Court of Appeals requires the Forest Service to re-evaluate forest plans in nine states across the west whenever a new species is listed under the Endangered Species Act, new critical habitat is designated, or any new information about a protected species comes to light. 

Forest plans are the overarching management plans that set out goals for each national forest. The forest plan itself does not approve or deny projects within the forest, but it does help guide those decisions. Think of it like a zoning code, but for a forest. 

When national forests initiate site-specific projects, they conduct analyses to ensure the project does not jeopardize protected species or their habitat. For this reason, requiring re-evaluation of the forest plan whenever there is new information regarding protected species, as Cottonwood does, is duplicative. 

Moreover, while proponents of the Cottonwood decision may believe the holding protects species, in practice it does the opposite. This is because Cottonwood significantly delays, and takes resources away from, forest management projects like prescribed burns or mechanical thinning that would improve habitat and forest health. These delays increase the risk of catastrophic wildfires that destroy forests that species rely on and the habitat they harbor. 

The unintended consequences of the opinion are costly, counterproductive, and detrimental. Former Forest Service Chief, Randy Moore, captures this when he says, “But if I was to look at right now, that decision basically says that we would have to reconsult on endangered species issue at the plan level. We feel that that is unnecessary, because we do that already at the site-specific project level. And to do that at the planning level is not necessary. And if we are required to do reconsultation at the planning level, I can tell you it is going to take over 10 years and tens of millions of dollars to do that.” 

Additionally, Cottonwood creates confusion because it conflicts with a 2007 case from the 10th Circuit Court of Appeals, Forest Guardians v Forsgren, which concluded that new information regarding protected species does not trigger re-evaluation of forest plans. 
 
Congress will help resolve this conflict through FOFA. 

The bill also encourages technological innovations in wildland firefighting, expands existing categorical exclusions under the National Environmental Policy Act (NEPA), and promotes federal, state, tribal and local collaboration. All of which will also help restore the United States’ national forests to healthier states. 

Cosponsor of the bill, and forester by trade, Rep. Bruce Westerman (R-AR) said it best when he said, “The bill ensures land managers do the work when the sky is blue, not when it’s orange, and fire is on the doorstep.” 

America’s national forests cannot continue to be managed the way they are now. FOFA is a bill that attempts to make needed changes regarding forest management and subsequently, wildfire mitigation. The House has passed this important legislation. Now it’s the Senate’s turn. 

(Photo credit: Inciweb)