Summer 2005. Fire provides critical habitat for the black-backed woodpecker. Rule changes on a road to nowhere. Victory at Big Bear Lake.
The black-backed woodpecker thrives in post-burn landscapes, feasting on wood-boring beetles. Its habitat is threatened by the rush to log after a fire—even a small amount of salvage logging causes a drop in the bird population. Photo © Stuart Healy
SOME LIKE IT HOT
One summer when I was a teenager, I spent two weeks paddling a canoe through the year-old scar of a massive fire in the remote lowlands of Northern Ontario. I saw wolves, bear, moose, loons and massive clouds of mosquitoes and blackflies. The only humans I saw, other than my parents, were two Cree men headed to visit family in an isolated village 100 miles upstream. Unburned patches of forest were impenetrable thickets of spindly black spruce and balsam fir, punctuated with occasional aspen groves, leaves fluttering in the wind. The burned sections were just as thick with purple fireweed and raspberries. It was here that I first met an uncommon woodpecker with a solidly black back and a yellow patch on its forehead—a woodpecker that may soon be helping the U.S. Forest Service figure out how to manage public lands for a future of safe communities and beautiful forests.
The bird was a black-backed woodpecker, and according to research being done at the University of Montana and the Forest Service Rocky Mountain Research Station, it may be North America’s most fire-dependent bird species. It is adapted to extract the wood-boring beetles that invade burns in the immediate aftermath of large fires. While most woodpeckers have four toes, the black-backed has only three, enabling it to pivot and deliver harder blows to dead wood. Its entirely black back helps it blend in with the burned trees. In the first five to eight years after a fire, there may be as many as one woodpecker pair per twenty acres, but after the initial beetle infestation declines, these woodpeckers almost completely disappear from the landscape.
Forest Service Employees for Environmental Ethics’ interest in the black-backed woodpecker arose from our attempts to help Forest Service employees answer some of today’s most difficult questions. What should our responses be to wildland fire? How do we decide when to let fires burn, and when to interfere to protect homes and communities? Ecologists frequently call for a restoration of pre-suppression fire regimes, yet doing so in a particular locale is often controversial. Furthermore, it may not make sense to simply take a hands-off approach in the wake of climate change and the expanding human population in the urban–wildland interface. One thing we know is that pre-suppression fire regimes provided suitable habitat for this burn-dependent woodpecker throughout the boreal forests of Canada and the northern United States, ranging down the Rockies as far as Yellowstone, and down the Cascades and the Sierras past Lake Tahoe. If we begin providing for the black-backed woodpecker as we plan and manage wildland fires, we will know that we are moving toward more ecologically sound management.
We do not need to rewrite our laws in order to protect this bird. The National Forest Management Act provides “for diversity of plant and animal communities,” and fire-shaped forests are among the rarest and most threatened of such communities. Instead, we need to refocus our tax dollars. Fighting wildland fires endangers firefighters, wastes money and does not protect our homes and neighborhoods. It also limits habitat for the woodpecker. Similarly, salvage logging not only loses taxpayers’ money and increases fire danger but it damages habitat quality for the black-backed woodpecker. Very few nests have been located even in areas that were lightly salvaged. If we invest federal dollars in what Forest Service Researcher Jack Cohen has shown to be the most important actions we can take to protect homes and communities—creating 100 feet of defensible space around our houses and using non-flammable roofing materials—we can protect our families from the dangers of fire while maintaining our beautiful birds and public forests. —Forrest Fleischman
On March 21, Federal District Court Judge Manuel Real dismissed a racketeering lawsuit brought by marina developer Irving Okovita against three U.S. Forest Service employees and a private citizen. In the lawsuit, Okovita accused the three San Bernardino National Forest employees of abusing their official positions to stop a marina development on Big Bear Lake. The Center for Biological Diversity and a local environmental group, Friends of Fawnskin, had earlier won a preliminary injunction barring further development because bald eagles may be harmed.
Okovita’s case, brought under the Racketeering Influenced and Corrupt Organizations law adopted by Congress to fight organized crime, was the first of its kind against Forest Service employees. The federal government’s long delay in responding to the employees’ request for legal representation led Forest Service Employees for Environmental Ethics to retain legal counsel to represent them. Without representation, the defendants would have suffered a default judgment against them for failing to respond to the lawsuit. The Department of Justice stepped in following front-page coverage of the case in the Los Angeles Times and pressure from Undersecretary of Agriculture Mark Rey to represent his Forest Service workers.
During the hearing, Judge Real pointedly asked Okovita’s lawyer whether he was supposed to believe that one of the defendants, Friends of Fawnskin citizen activist Sandy Steers, was actually a racketeer. Apparently, he was not convinced. Judge Real dismissed the case from the bench at the end of the hearing. —Andy Stahl
PLANNING WITHOUT PURPOSE
For years, the U.S. Forest Service brass has complained about “analysis paralysis”—supposedly the burden of law compliance has prevented them from implementing many projects. The claim was that new planning regulations would end this analysis paralysis, freeing land managers to focus on getting the job done. On March 17, 2005, the Forest Service released 300 pages of new planning directives. The directives are convoluted and confusing, and more than double the length of the old, supposedly paralyzing, laws, but the picture emerging from them is disturbing. The new directives do not decrease the amount of planning, analysis or paperwork, but they do systematically eliminate nearly every opportunity for meaningful public involvement in the land management process.
The new directives are supposed to govern how the Forest Service complies with our landmark environmental laws, including the National Environmental Policy Act and the National Forest Management Act. These laws were passed in response to citizen concern over the negative environmental effects of government actions, and were designed to make the Forest Service clearly accountable to citizens. Their combined effect is the requirement that each national forest prepare a management plan, with substantial citizen input, which will govern all actions on the forest. But it would seem that dealing with all of those pesky citizens and laws got in the way of the Forest Service’s interests.
Citizen groups like Forest Service Employees for Environmental Ethics used the legal requirements written into forest plans to halt numerous destructive projects. For example, last fall, a federal judge granted FSEEE an injunction against salvage logging of living trees greater than twenty-one inches in diameter on the Malheur National Forest in Oregon. The decision was based on the fact that the forest plan clearly forbade the logging of living trees larger than that diameter.
The new directives are an end run around laws and citizens. Strangely, they don’t reduce the burden of preparing forest plans. Instead, they take a linguistic route, requiring plan preparers to steadfastly avoid the use of any language that could be interpreted by a court to require specific action. The new forest plans will read like vision statements—but will not include words such as “must,” “should,” “shall,” or other verbs “that imply a compulsory condition or action.” In other words, the Forest Service still writes plans, they just don’t mean anything.
Without compulsory language, there is no way to hold public officials accountable for their actions. And since these new forest plans don’t mean anything, the Forest Service claims that it no longer has to prepare environmental impact statements, thereby eliminating the process by which the public can review and comment on the agency’s plans.
The Bush administration’s winning message in the recent election was its promise to create an “ownership society.” But in spite of their promises of a leaner federal government, the new forest rules read like a permanent employment program for Forest Service planning professionals. If there is anything more threatening to the prospect of individual rights than a large and powerful government, it is a large and powerful government that cannot be held accountable. Of course laws, standards and citizen oversight can slow things down, but as the Soviet Union aptly demonstrated, so can unrestrained bureaucracies. It seems ironic that these proposals are being put forward under the leadership of a president who speaks so frequently about freedom, free markets and smaller government.
In her recent book, The Majesty of the Law, Supreme Court Justice Sandra Day O’Connor writes, “Governments must create a haven where citizens enjoy their constitutional and civil liberties in defiance of all the powers that the state or the masses can bring to bear. And these rights must be enforceable.” O’Connor goes on to differentiate the constitutions of Soviet Bloc nations, which glowed with the promise of freedom while delivering totalitarianism, with the constitution of the United States, which was able to deliver freedom by giving citizens the right of private action to defend their rights against government intrusion with clearly written laws and independent courts.
Fortunately, we don’t live in a totalitarian state. We live in a democracy where the actions of our government are constrained by law. FSEEE is preparing to challenge the new rules and directives, and gearing up to monitor many individual projects, which, although they may not have to comply with a forest plan, must still satisfy the requirements of our basic environmental laws—to protect clean air, clean water, wildlife and recreation opportunities. In the coming months, we will also be calling on you, our members, to help us defend these signature environmental laws as they come under attack in Congress. —FF