Communities can force government action to stop out-of-control wildfires

Every year, more of America’s forests burn. For months now, Americans throughout entire time zones have been inundated with ash and smoke from our woodlands, neighbors’ homes and ecosystems that will take years to recover.

Yet despite this predictable yearly carnage, the solutions our government can and should immediately take are lost among generalizations and talking points. Public officials on both sides of the aisle have lobbed excuses at each other over the “true” cause of these wildfires: “It’s bad forest management!” “No, it’s climate change!”

They are both right and they are both wrong.

Starting in the early 1900s, decades of flawed forest management led to the dangerous over-accumulation of forest fuel (dense forest brush and small trees). Then, in the past few decades, longer and more severe droughts made dangerously fire-prone forests literal tinder boxes where fires burned hotter, moved faster, grew bigger and posed ever-greater risks to forests, homes and lives. Our forests are burning uncontrollably today because of decades of questionable management and changing environmental conditions.

But it doesn’t matter whether it is 30 percent of one cause and 70 percent of the other, or a 50/50 mix of both. Because whatever has led to these conditions, our federal officials are 100 percent responsible for taking every reasonable step available to dramatically reduce fuel loads in our forests and making the land safe for residents, homeowners and wildlife.

This is because federally owned forests dominate our fire-prone landscapes, and Congress bears the largest share of the responsibility to make them safer. But federal legislators have handcuffed forest management staff with red tape and competing (often conflicting) priorities, all the while failing to fund the top priority, which should always be community safety. This has to stop, and Congress has the responsibility to make it so by reforming federal forest management policies to prioritize fuel reduction and make forests healthier.

Prioritizing fuel reduction means exempting fuel removal from the thicket of bureaucracy that impedes it. Things such as lengthy environmental reviews, multiple layers of planning documents, vetoes on fuel reduction by other agencies, ever-looming citizen lawsuits, and inadequate funding for proper forest management all have made the forests more dangerous and less healthy. Cutting and reforming these debilitating policies, and even removing forest fuel reduction from Endangered Species Act regulation (there are few greater risks to endangered wildlife than catastrophic fires), can have real, immediate impact on forest fire danger. 

Unfortunately, these obvious measures depend on Congress taking its responsibilities seriously and accomplishing rapid, bipartisan action. But communities at greatest risk of fire can’t wait while Congress dithers, so they should take matters into their own hands in the federal courts.

Local governments have the power to sue the federal government under public nuisance laws to force the feds to properly maintain overgrown forests threatening cities and towns. Just as a city can take action against delinquent property owners over a rundown property that poses a fire risk to a neighborhood, cities can take action against the federal government for federal forests that threaten to burn entire cities to the ground. 

Forcing the federal government to do its job through the courts has an important advantage of bypassing never-ending bureaucracy, conflicting agency priorities, and inadequate funding. When a federal judge orders an agency to do something, the staff has to put down the planning manuals and flow charts and do what the judge tells them to do. And Congress must fund it.

Every county, city and town vulnerable to catastrophic fires burning through federal lands should be preparing nuisance suits against the appropriate federal agencies. Like too many things in American history, if our legislators and agencies won’t do what is right because it is right, they may have to do it because federal judges ordered them to.

Tony Francois is a senior attorney with Pacific Legal Foundation, which litigates nationwide to achieve court victories enforcing the Constitution’s guarantee of individual liberty. Follow him on Twitter @TonyFrancoisEsq.