September 22, 2014

Federal courts can hold Forest Service accountable for fire conditions

By Anthony L. Francois Senior Attorney

Across the western United States, intense forest fires rage every summer, blackening millions of acres. One of the factors in the severity of these fires is the fuel conditions prevailing on many national forests.  For many decades the Forest Service has actively suppressed all fires, which has lead to a significant build up of fuel.  The Forest Service has worsened these conditions with policies that exclude timber, grazing, and other productive uses from the forests.  The Forest Service now states that 58 million acres of national forest lands have a high or very high potential for large wildfires that would be difficult to suppress.

Some states and local communities have had enough of the Forest Service imposing such massive risks to people, property, wildlife, and water resources.  In 2001 the State of New Mexico adopted a statute that authorizes its counties to identify major fire risks which the Forest Service is maintaining, and to take action to reduce those risks.  In 2011 Otero County in Southern New Mexico adopted an ordinance finding the conditions on the Lincoln National Forest to pose an emergency.  The County also began taking steps to abate this hazard, with or without the consent of the Forest Service.  Naturally, the federal government got right to work reducing the fire risk sued Otero County in federal court to establish that the County could not act unilaterally to abate the fire risk the Forest Service was imposing.

Last week Pacific Legal Foundation asked the court for leave to file this amicus brief in support of Otero County.  In the brief, we explain that federal law allows local governments to sue federal agencies for creating a public nuisance.  We further argue that the fire risk which the Forest Service is imposing on communities across the West is just such a public nuisance, and that the federal courts have full authority to order the Service to abate these conditions.

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