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December 18, 2020

Environmental, Natural Resources, & Energy Law Blog

To Move Forward with Fire Management, the West Coast Needs to Go Back - Rebeka Dawit

Climate change has found itself knocking at the door of every individual on the West Coast. This summer, Oregon found itself engulfed in flames, Washington found itself smothered in smoke, and California found its skies deep red. A terrifying thought, but as climate change continues to rage on, so will wildfires. Longer, hotter summers and shorter, drier winters make an imperfect concoction for the West Coast to become a tinderbox every late summer. However, there is a means by which the Western states can attempt to curb the scalding effects of climate change induced wildfires. Prior to colonization, Native American tribes throughout the West Coast prescribed controlled burns in order to alleviate the pressures of wildfires. The prescribed burns would promote the overall health of the forest, thus when a wildfire does inevitably occur, the results will not be as devastating.

Through the re-implementation of controlled burning, states on the West Coast can alleviate the impacts of wildfires. Prior to the 1800’s, this was the norm. US Tribes across the Western United States would practice “cultural burning,” smaller controlled fires that would promote forest health.[1] These cultural burnings would alleviate the pressures of a more intense seasonal wildfire from “fuel” buildup such as fallen trees or dry undergrowth.[2] The burns would also clear out invasive plants that hoard much needed water from the neighboring plants, thus allowing more water to make it to the streams.[3] As a result, these tribes were able to ensure a steady production of crops and presence of animals that provide sustenance and ceremonial or cultural significance.[4]

With the colonization of the West, came the fear of seasonal wildfires. Subsequently, laws were put in place to “prevent” these wildfires. Thus, “American” forest management practices such as the 1911 Weeks Act came into play.

Wildfire prone states such as California need to abandon their antiquated wildfire management practices because ongoing climate change and increasingly disastrous fires will only further displace and harm people, wildlife, and property. Specifically, this can most importantly be accomplished by amending California’s SB-1260, which is the most comprehensive statute available to incorporate West Coast indigenous wildfire management practices. Additionally, explicit tribal inclusion in California Legislative Budget meetings when wildfire management is on the docket can ensure that these traditional practices make it into current legislation.

 

Wildfires, the Summer of 2020, and Climate Change

 

News of wildfires raging across the West Coast dominated the media for months this summer. Cal Fire’s 2020 Fire Season Summary estimated that the length of fire season is estimated to have increased by 75 days across the Sierras.[5] Cal Fire has attributed this increase in fire season to increased spring and summer temperatures, coupled with reduced snowpack and earlier snowmelt.[6] This is the perfect concoction to create a more intense dry season, and make forests more susceptible to wildfires.[7] Just in 2020, more than 4 million acres burned, the most in a single year since Cal Fire began collecting records in 1905.[8] Over 10,000 structures were damaged or destroyed, and there have been at least 31 fatalities. [9] As of October 2020 it has been estimated that California’s wildfires cost upwards of $10 billion.[10]

Oregon is not far behind. This fire season, approximately 1 million acres of land burned.[11] This is nearly double the 10-year average, which has been a little over 550,000 acres.[12] Over 2,200 homes have been destroyed, and 11 deaths have been reported.[13] If Oregon residents weren’t directly evacuated, many experienced lung crushing smoke, and power outages. As an inhabitant of a nearly 120-year-old home, the minimal insulation and poorly sealed windows forced me and my partner to flee to Seattle to experience air that was deemed “Unhealthy” on the Air Quality Index, rather than the “Hazardous” and off the scale quality we faced in Portland.

There is no denying that climate change will only further exacerbate the catastrophe that wildfires cause. Scientists are in consensus that climate change has increased not only the frequency of wildfires, but their spread and intensity as well.[14] If this climate change trajectory continues, the annual mean area burned in the US will “increase by 54% in the 2050’s.”[15]

 

Indigenous Communities and Controlled Burns

 

Tribes in the West Coast, prior to colonization and subsequent outlawing, practiced cultural burning since time immemorial. Cultural burning would entail the “intentional lighting of smaller, controlled fires to provide a desired cultural service, such as promoting the health of vegetation and animals that provide food, clothing, and ceremonial items…”[16] These fires would be “controlled” by ensuring that the burnings are done on slightly humid, low wind days. Once a site is decided upon, a 3ft buffer is cleared around the area to contain that fire to the site.[17] Cultural burning has been attributed to the necessity of maintaining ecosystem balances, such as clearing out “fuel” that would otherwise cause a seasonal wildfire to burn out of control. [18]It is meant to “maintain the abundance of productivity of all ecosystem services” that would keep forests from feeling the shock of a natural wildfire.[19]

With colonization came the attitude of deeming all fires as destructive.[20] In 1793, a Spanish bureaucrat in California named Don Jose Joaquin de Arrillala made the argument that these controlled burns would cause “wide spread damage,” calling these deeply generational practices “childish” and “tolerated” by the Spanish settlers.[21] Thus, he found, it was necessary to outlaw all of these types of burnings. This theory would lay the foundations of the 1911 Weeks Act, which authorized the government’s purchase of millions of Acres throughout the West and would ultimately outlaw fires in nearly 20 million acres of forestland.[22] Remnants of this rhetoric can be found in our everyday lives, most notably in Smokey the Bear’s slogan, “Only you can prevent wildfires.” This attitude that fire is inherently bad, has crept its way into statutory language, and thus, fire management practices.

 

Current Fire Management Practices and Statutes in California

 

The most reassuring means of remedying the outright outlawing of controlled burns can be found in the Interagency Federal Wildland Fire Policy Review Working Group’s 1995 Program Review. This group, which is a coalition of multiple federal agencies including the EPA, Departments of the Interior, Commerce, Agriculture, Energy and Defense, are responsible for evaluating fire management policies and making recommendations on future changes or enhancements. The Working Group’s outlook on fire management does not differ too far from those of the indigenous practices before them.[23] The Working Group emphasized the archaic anti-fire mentality most commonly seen in the early to middle 1900’s.[24] Over the course of the century, the Working Group recognized the benefits derived from natural as well as prescribed fire.[25] The review and update does not provide concrete means to implement controlled burns, which leaves ample room for indigenous voices to be heard, and controlled burns implemented.

Senate Bill No. 1260, Chapter 624 is the controlling law in California as it pertains to controlled and prescribed burns.[26] This bill gives local authorities the ability to implement their own plan for conducting prescribed burns on private and State land. A county or city needs to submit a draft plan of implementation to the state board, which will then approve, deny, or give recommendations to that plan. Most importantly, the bill amends previous California law, allowing for a person, firm, corporation to essentially, fight fire with fire. Indeed, the bill allows such an entity to “use the use of fire to abate a fire hazard, as provided.”[27] That entity needs to receive a “fire boss” certificate, approved by the state board, in order to use the burning permit.

The California Legislature, in implementing this new Senate Bill, explicitly acknowledged the fact that Native Americans across the West Coast have been implementing controlled burns for generations, prior to laws outlawing the practice.[28] They acknowledged that this prescribed burning would reduce the fuels in forest lands that today ends up making wildfires significantly more catastrophic.[29]

While this is all fantastic, it is important to note that the Bill also expresses concern about the intricacies of implementing a safe and effective prescribed burning program. They express the need to work with nonprofit entities, universities, landowners and “other relevant organizations.”[30] A huge means of alleviating that concern is bringing Tribes to the table. There are 109 federally recognized tribes in California. That is 109 opportunities to bring various forest management knowledge into the realm of modern wildfire management.

The main way that tribes can be included in updating fire management practices is ensuring their inclusion in California Legislative Budget Meetings. These budget meetings often discuss how funds will be appropriated as pertaining to wildfire management.[31] While the hearings of the budget conference committee are open to the public, and broadcast on the “California Channel” (which is found on the California Secretary of State’s Website or on public broadcasting in California), public testimony is not allowed. Thus, it is crucial that the Budget Committee, either through explicit tribal representation or through pressure on respective District Assembly Members, include tribal voices and perspectives in their considerations.

 

Conclusion

 

Through the Fire Policy Review and SB-1260, and through tribal inclusion in budget meetings where wildfire proposals are discussed, there are real, meaningful ways to reincorporate traditional native forest management practices into the forefront of combating needlessly catastrophic wildfires. Fires are a natural and healthy part of our ecosystems, however, with increased vulnerabilities as a result of climate change, we need to act fast. Bringing tribes to the table to effectively implement forest management practices has the immense potential to guide the West Coast into a more sustainable dry season.

 

[1] Roos, “Native Americans Used Fire to Protect and Cultivate Land”, September 18th, 2020. lhttps://www.history.com/news/native-american-wildfires#:~:text=While%20those%20types%20of%20natural,that%20provide%20food%2C%20clothing%2C%20ceremonial

[2] Id.

[3] Cagle, “’Fire is Medicine: The Tribes burning California forests to save them” November 21st, 2019. https://www.theguardian.com/us-news/2019/nov/21/wildfire-prescribed-burns-california-native-americans

[4] Id.

[5] CAL Fire, 2020 Incident Archive. https://www.fire.ca.gov/incidents/2020/

[6] Id.

[7] Id.

[8] Center for Disaster Philanthropy, “2020 North American Wildfire Season” (2020) https://disasterphilanthropy.org/disaster/2020-california-wildfires/

[9] Id.

[10] Louie, “Damage from California’s wildfires estimated at $10 billion, experts say” October 9th, 2020. https://abc7news.com/california-wildfires-cost-of-cal-fire-stanford-wildfire-research/6897462/#:~:text=Damage%20from%20California’s%20wildfires%20estimated,cooperation%20needed%20%2D%20ABC7%20San%20Francisco

[11] Center for Disaster Philanthropy, “2020 North American Wildfire Season” (2020) https://disasterphilanthropy.org/disaster/2020-california-wildfires/

[12] Id.

[13] Id.

[14] Liu, et. al, Particulate Air Pollution from Wildfires in the Western US under Climate Change, Climate Change. (2016 October) ; 138(3) 655-666. doi:10.1007/s/10584-016-1762-6. Accessed at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5476308/pdf/nihms-830265.pdf

[15] Id. at 2.

[16] Roos, “Native Americans Used Fire to Protect and Cultivate Land”, September 18th, 2020. lhttps://www.history.com/news/native-american-wildfires#:~:text=While%20those%20types%20of%20natural,that%20provide%20food%2C%20clothing%2C%20ceremonial

[17] Cagle, “’Fire is Medicine: The Tribes burning California forests to save them” November 21st, 2019. https://www.theguardian.com/us-news/2019/nov/21/wildfire-prescribed-burns-california-native-americans

[18] https://www.history.com/news/native-american-wildfires

[19] Id.

[20] Id. https://www.npr.org/2020/08/24/899422710/to-manage-wildfire-california-looks-to-what-tribes-have-known-all-along?utm_term=nprnews&utm_campaign=npr&utm_medium=social&utm_source=twitter.com

[21] Roos, “Native Americans Used Fire to Protect and Cultivate Land”, September 18th, 2020. lhttps://www.history.com/news/native-american-wildfires#:~:text=While%20those%20types%20of%20natural,that%20provide%20food%2C%20clothing%2C%20ceremonial

[22] Forest History Society, “The Weeks Act” https://foresthistory.org/research-explore/us-forest-service-history/policy-and-law/the-weeks-act/. Full text available at http://www.pawild.org/pdfs/1911weeksact.pdf

[23] Review and Update for the 1995 Federal Wildland Fire Management Policy (2001) https://www.nifc.gov/PIO_bb/Policy/FederalWildlandFireManagementPolicy_2001.pdf

[24] Id.

[25] Id.

[26] SB-1260 Fire prevention and protection: prescribed burns (2018)

[27] Id. at Para. 6

[28] Id. at Section 1(a)

[29] Id.

[30] Id. at (l)

[31] California Senate, “The Budget Process: A Citizens Guide to Participation” https://www.senate.ca.gov/sites/senate.ca.gov/files/the_budget_process.pdf