The season for northwest wildfires has arrived, with two major forest fires already occurring in Northwestern Washington. Catastrophic wildfires have become progressively more destructive, causing enormous damage to both public and private forest and range lands, as well as posing severe risks to public health and the environment.
Pundits and politicians often claim the increasing wildfire frequency and severity is being caused by recent man-caused climate change. However, several of the largest and most destructive fires in our history occurred long before the terms “global warming” and “climate change” were coined. They happened during severe drought conditions in the 1930s and 40s in Oregon coastal range forests.
Without doubt, the primary cause of the rapid escalation in wildfire frequency and severity is the near complete failure of national forests and federal rangeland management. Ground and ladder fuels have been allowed to accumulate for decades, creating conditions for fires to burn with such intensity that they are virtually impossible to control.
There is more than 12,000 miles of contiguous border between Oregon Department of Forestry (ODF) protected forest and rangeland and federally owned forestland in this state. The proximity of state and private forest land to these federal “holocausts in waiting” pose the greatest risk to private and state owned lands and structures. Much of that destructive potential could be prevented through the active management of federally owned public lands.
Decades-long political gridlock has prohibited meaningful solution to this vexing problem. Most previous attempts to improve federal forest management has been complicated by a number of factors. They include the sheer volume of federally owned forests in Oregon, the loss of funding from federal timber harvest sales and the constant threat of lawsuits from environmental groups who are apparently content to watch our valuable timber and rangeland resources literally go up in flames year after year.
Recently, some members of our political leadership appear more willing to try to change the untenable status quo. As part of the 2014 Federal Farm Bill, Congress enacted a pathway for the state and federal governments to work together to develop a solution.
In late March, Governor Kate Brown signed a Good Neighbor Agreement (Agreement) with the U.S. Forest Service (USFS). Also signing that document were ODF State Forester Doug Decker, Oregon Department of Fish and Wildlife Director Curt Melcher and U.S. Forest Service Regional Forester Jim Pena.
Good Neighbor Authority allows the USFS to enter into cooperative agreements or contracts with states to allow them to perform watershed restoration and forest management services on lands managed by the federal agency. It prohibits the use of joint funding for construction, reconstruction, repair or restoration of paved or permanent roads or parking areas, projects in wilderness areas or any expenditures on buildings.
Authority for the Agreement was derived from two sources.
The first was the aforementioned 2014 Federal Farm Bill. One particular provision of that lengthy document provides a legal definition for “good neighbor agreement,” and enables the Secretary of Agriculture and Secretary of the Interior to enter into such agreements with a Governor to “carry out authorized restoration services.” The Secretary of Agriculture has jurisdiction over lands managed by the USFS, and the Secretary of the Interior oversees land managed by the Bureau of Land Management.
After the Master Good Neighbor Agreement was signed by Brown, a letter was sent out to regional, area and district managers and forest supervisors by Melcher, Decker and Pena touting its possible benefits.
According to that letter, the provisions of the Farm and Appropriations bills “enhanced opportunities to work across private and public land boundaries, gain efficiencies, and advance partnerships that restore and manage natural landscapes, advance jobs, and improve public values associated with National Forest System lands.” It states that the Agreement is intended to “deepen and strengthen the existing state-federal partnership between the State of Oregon and the U.S. Forest Service in advancing the interest of the public, communities, places and missions we serve.”
Goals of the Agreement, as stated in that letter, include reducing hazardous fuels, tree thinning and increasing fire resilience, addressing insect infestation and related forest disease. Equally important, it provides for addressing the enormous damage to water quality and instream habitat caused during and in the aftermath of wildfires. On-the-ground forest managers desperately need those “tools” to both help reduce the severity of wildfires and to restore stream health following wildfires.
The Good Neighbor Agreements are contracts between state and federal entities. They are meant to be significantly different than the current public-private collaborative agreements.
My staff recently spoke with a rural county commissioner about public-private collaborative projects currently happening in his part of the state. The commissioner described them as a “home run,” and added that four consecutive projects have been able to move forward without any lawsuits. Some collaborative agreements in other parts of the state have been decidedly less successful and more litigious.
Public-private collaborative projects often include organizations who have traditionally opposed private property rights and the use of natural resource assets by anybody in the private sector. Too often, these organizations, or affiliate groups, are quick to litigate proposed timber sales and even thinning projects.
The phrase “public benefit” often come up in these discussions. That term is generally used to mean the “public trust,” which is rooted in English common law. Then it meant the King held all natural resources in trust for his subjects. Today, it is used to challenge the use of public resources by individuals such as federal timber sales, rangeland permits and water rights.
A favorite legal tool for progressives and environmental extremists is to use the public trust doctrine to supplant the doctrine of prior appropriation in water law and to expand the regulatory provisions of the Clean Water Act, Clean Air Act and Endangered Species Act. The claim is routinely litigated that the government is required to provide those additional protections as a matter of “public trust.” Too often, activists judges agree, even though neither “public trust” nor “public benefit” are even mentioned anywhere in the U.S. Constitution.
We believe the Agreement has the potential to allow the state to help local officials address the backlog of issues and deferred maintenance of federal forest lands located in their communities. It is not a silver bullet that will solve the multitude of issues involving the federal ownership of about 53 percent of Oregon’s landmass. We do believe, if properly implemented, it can represent a significant step toward sustainable management of federal forest and rangeland resources.
Even incremental better management will help to prevent the kinds of devastating wildfires that have ravaged Oregon’s pristine landscapes for far too long.
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