In Earth Island Institute v. Forest Service (2003), and again in an identically titled 2006 case, the Ninth Circuit heard arguments concerning post-fire timber sales in Northern California's Eldorado National Forest. In both cases, the Ninth Circuit determined that the district courts improperly denied preliminary injunctions because the plaintiffs would likely succeed on the merits of their claims alleging that the U.S. Forest Service failed to comply with various provisions of the National Environmental Policy Act (NEPA) and the National Forest Management Act (NFMA). In concurring opinions in both cases, Judge Noonan suggested that the U.S. Forest Service may be disqualified as a decision maker in post-fire logging issues given the agency's financial interest in such sales. That proposition, grounded in Fifth Amendment procedural due process principles, casts doubt on the Forest Service's capacity to act neutrally where it stands to gain off-budget revenue from so-called "salvage" sales.

This Chapter expands on Judge Noonan's provocative Earth Island concurrences, identifying several statutory and budgetary incentives impelling the agency to log after fires and probing the merits of a procedural due process argument in the post-fire logging context. The Chapter concludes that although there is a high potential for the Forest Service to be unduly swayed by its financial stake in post-fire timber sales, plaintiffs will rarely be able to identify a judicially cognizable liberty or property interest to trigger the Fifth Amendment's implicit guarantee of a neutral decision maker.

 

AUTHOR FOOTNOTE:

Austin D. Saylor, 2007. Member, Environmental Law, 2006-2007; J.D. and Certificate in Environmental and Natural Resources Law expected May 2008, Northwestern School of Law of Lewis & Clark College; B.A. 2004, College of William & Mary. Thanks to Professor Susan Jane Brown for her insightful guidance, and to the staff of Environmental Law for their diligent work.

 

 

NEED A TOC

I. Introduction

In 2005, more than 66,000 wildfires of varying intensities burned roughly 8.6 million acres of public lands.[1] Those fires left the United States Forest Service (Forest Service) with a formidable, but familiar, administrative dilemma: how to manage the burned landscape so as to ensure ecological health while also recouping economic value? If these dual goals prove irreconcilable, are they cast in equal balance?

The structure of the Forest Service's budget engenders potent financial incentives to elevate post-fire logging above short- and long-term ecological stability.[2] Money from salvage sales is, by statute, deposited in a special account (independent of the congressional appropriations process) over which the agency has wide spending discretion.[3] The ability to augment off-budget revenue through timber sales risks skewing management decisions in favor of post-fire logging, and may inhibit reasoned assessment of environmental consequences.[4] A variety of statutes[5] channel the decision making process, but the Forest Service enjoys fairly wide discretion.[6] Compounding the statutory tangle, environmental groups and timber industry lobbyists press the Forest Service in opposing directions on post-fire management policies.

Post-fire logging projects spark passionate, polarized debates. While activities like reseeding, erosion control, fuels reduction, invasive species eradication, and repairs to roads and structures may sometimes provoke controversy,[7] proposals for "salvage logging" are acutely divisive. Because they implicate a fervid scientific and political debate surrounding the role of fire in our National Forests, such proposals engender potent reactions. Pitted against those who decry post-fire timber harvests as ecologically myopic and environmentally ruinous are those who insist that such logging is vital to forest recovery and imperative to avert economic waste. At stake is a fundamental question: how should the Forest Service appraise a forest's value? This inquiry is especially pertinent in the post-fire logging context because the agency is often compelled to adjudicate the legal rights of timber bidders vis-a-vis the legal rights of those challenging the project. The Forest Service reaps financial profit if it sells the burned timber but makes no money if it decides not to log, prompting some to question the agency's capacity to be a neutral decision maker.

In Earth Island v. U.S. Forest Service (Earth Island II), a case spurred by post-fire timber sales in Northern California's Eldorado National Forest, the Ninth Circuit Court of Appeals remarked on what it characterized as a "disturbing trend" in the Forest Service's recent post-fire timber sale activities.[8] Citing eight recent cases,[9] the court drew an implicit link between the Forest Service's apparent financial interest in selling burned timber and the spate of decisions faulting the agency's post-fire National Environmental Policy Act (NEPA) analyses and National Forest Management Act (NFMA) implementation.[10] The court lamented that the agency "appears to have been more interested in harvesting timber than in complying with our environmental laws," and admonished that "it has not escaped our notice that the [Forest Service] has a substantial financial interest" in harvesting timber.[11]

Judge Noonan, in a concurring opinion, asserted that the agency's financial interest "requires further investigation and evaluation."[12] As he opined in 2003 in Earth Island v. Forest Service (Earth Island I), "[a] bureaucracy, protecting its turf and cherishing the number of its employees and the extent of its empire . . . would put a premium on an operation that gives it a perpetual revolving fund not dependent on Congress."[13] Judge Noonan was clearly skeptical of the Forest Service's ability to act impartially in post-fire logging disputes, and the Ninth Circuit's recent opinion in Earth Island II signaled similar suspicion. Judge Noonan peppered his Earth Island II concurrence with key procedural due process cases, indicating his confidence that the requirement of a neutral decision maker in the post-fire logging context is grounded in the Constitution.[14]

This Chapter examines how the Forest Service's off-budget accounts foment potential financial bias in post-fire logging adjudications and identifies why the Fifth Amendment's procedural due process requirement of a neutral decision maker fails is not triggered despite this high risk of prejudice. Part II sketches a brief overview of the core ecological issues typically raised in post-fire logging debates. Part III reflects on the origins of "salvage" harvests and traces the rising prominence of salvage timber sales since the early 1990's, corresponding with a decline in regular timber harvests. The section also outlines the Forest Service's response after a wildfire, and touches on a selection of controversial post-fire logging legislation and regulation. Part IV transitions to a synopsis of the Salvage Sale Fund, the Forest Service's off-budget account that holds post-fire timber sale revenue. With this account, the agency retains income from post-fire timber sales rather than deposit it to the U.S Treasury. This dynamic yields a potential for financial bias in favor of post-fire logging, as Judge Noonan touched on in his Earth Island I and Earth Island II concurrences. Part V expands on Judge Noonan's skeletal discussion of Fifth Amendment procedural due process, first setting out the threshold inquiries and then reviewing the case law to identify the criteria for when the potential for financial bias rises too high to be constitutionally permissible.

Part VI assesses the contours of the Forest Service's potential bias, concluding that although the agency has a substantial and direct financial stake in the outcome of post-fire logging adjudications, procedural due process protections are not triggered because salvage logging contestants lack a recognized liberty or property interest. Drawing on criticisms of modern procedural due process protections as unduly narrow, Part VII lays out the argument in favor of a more expansive conception of liberty and property for due process purposes. The Chapter concludes that the Forest Service's budget structure creates a high risk of financial bias in post-fire logging adjudications, and that the inability to invoke the Fifth Amendment's basic procedural protections here underscores a dire constitutional infirmity.

II. The Ecological Context of Post-Fire Logging

Forests are fragile after fires, but are not "charred moonscape[s]"[15] left prostrate and helpless to recover naturally. To the contrary, there is abundant scientific evidence that fire-adapted forests not only recover rapidly, but need fire to prosper.[16] Low and moderate intensity wildfires typically burn in "mosaic" patterns, with patchy burned and unburned areas (depending on weather, terrain, and fuels).[17] Post-fire management plans are tailored to the unique conditions of particular climates and forest types,[18] but post-fire logging rarely, if ever, fits the ecological prescription.[19] With little reason to believe that post-fire salvage logging has any positive ecological benefits,[20] the push for urgent action cannot be predicated on ecological need. Time is perhaps the "enemy" in an economic sense,[21] but it is an ally in an ecological sense.

A. "Salvage Logging"

"Salvage logging" is the harvest of dead or dying trees damaged by fire, wind, flood, insects, or disease.[22] Salvage sales may encompass logging of "risk trees" and "associated trees" as well, including live, healthy trees.[23] The Forest Service's proffered justifications for post-fire logging in Earth Island II are typical-the agency claims post-fire logging will reduce the severity of future fires by reducing hazardous fuels,[24] as well as recover economic value from the burned timber.[25] Subsidiary objectives include protection of public health and safety and restoration of vegetation.[26] Post-fire logging proponents also contend that money from post-fire timber sales generates revenue vital to fund forest restoration projects.[27]

The term "salvage" connotes desperation. Framing post-fire logging operations as "making the best of a bad situation" is, however, a dubious insinuation given the widely touted ecological benefits of natural disturbances like fire.[28] In the wildfire context, where public perception is so crucial,[29] this is a sore point for those who oppose post-fire logging. A forest is "more than a collection of merchantable trees,"[30] and hasty post-fire decision making cramps a holistic perspective by sacrificing long-term sustainability for short-term profits. Research into salvage logging economics is only just beginning, but a recent "full-cost accounting" assessment indicates that in some post-fire logging projects the net economic costs may outweigh net benefits.[31]

The post-fire logging controversy, distilled to its core, is about the ordering of priorities. It is a matter of values, dealing with "societal goals for future forests and the relative risks, benefits, and costs of both action and inaction."[32] The Forest Service perceives fire as a force that burns valuable timber, and delay in logging after fire as wasteful,[33] so it crafts its response accordingly. This financial orientation suppresses consideration of competing values. Indeed, the agency's emphasis on "waste" frames the issue narrowly and "discounts social values and . . . biophysical values."[34] The Forest Service's budget structure aggravates this disconnect between economic and ecological values because it yields an off-budget haven for post-fire timber sale revenue.

B. Ecological Impacts of Post-Fire Logging

Post-fire logging works a "structural" change in the burned landscape through the environmental impacts of the harvest operations themselves and by removing dead and live trees that have "important ecological functions."[35] Intense scientific and political controversy as to the proper type and scope of post-fire management activities shears a deep rift between those who advocate comprehensive active management and those who demand a mostly "hands off" approach. Much depends on the character of the terrain, the severity of the fire, the resources at stake, and the particular method of logging (e.g. tractor skidding or helicopter).[36] For example, are there steep slopes or nearby streams? Is the area roadless or designated as wilderness? A brief overview of the most common issues sets the scene.

1. Soils

Very intense "stand replacement" fires can cause localized mortality in underground roots and seeds by a "glassification" effect that melts and fuses silica in the soil.[37] This forms a hydrophobic, or water-impermeable, layer and prevents water from seeping into the ground.[38] Research on this phenomenon is scant, but generally "the effects of fire on soils are a function of the amount of heat released from combusting biomass . . . and the duration of combustion."[39] Soil disturbance from post-fire logging may crack these water repellant layers to increase infiltration and reduce erosion, but those benefits may be offset by subsequent soil compaction from "skidding" logs over land by tractor or cable pulley.[40]

Because soils are "crucial to forest recovery" and "irreplaceable within human time scales,"[41] post-fire logging activities that damage soil structure and impair soil productivity have broad-ranging effects. Because erosive soils may lead to increased sedimentation loads in streams too,[42] soil issues play a pivotal role in post-fire ecology.

2. Snags

Snags are "standing dead trees from which most leaves and limbs have fallen," and occur naturally due to wind, lightning, insects, fire, and disease.[43] Many creatures depend on burned woody material for survival,[44] and post-fire timber harvests remove those logs. Specifically, many bird species depend on burned conifer forests for perch sites, nest sites, and food.[45] Some bird species like the kestrel and the Western bluebird may benefit from partial post-fire logging, but the most fire-dependent bird species (i.e. those that are most restricted in habitat range) are most adversely affected.[46] In a broader sense, the dead wood is a key component in "mineral cycling, nutrient mobilization, and natural forest regeneration."[47]

Large dead standing and downed trees are "biological legacies" that survived a trial by fire, and are essential to forest recovery.[48] While some espouse the need to remove large woody fuel to diminish "reburn" intensity, no studies show reduced fire intensity in stands logged after fire.[49] To the contrary, the short-term increase in fine fuels (branches, needles) following logging may actually heighten risk,[50] because those types of fuels burn more readily.[51]

3. Watersheds

Fires have significant long- and short-term impacts on watershed hydrology, most notably by increasing erosion and sediment loads in streams due to decreased vegetation.[52] Logging after fire, especially in areas of high severity burn, compounds the stresses on an already compromised ecosystem.[53] Road construction and repair projects associated with post-fire timber harvests not only damage soils, but they also accelerate runoff and erosion.[54] These effects endure beyond the short time span of the logging project, even for "temporary" roads.[55]

Few post-fire logging projects monitor the ecological effects of riparian timber harvests,[56] but recent evidence suggests that "the more trees retained and the more the impacts to survivors are minimized, the more resilient the riparian ecosystem will be."[57] Riparian ecosystems are generally resilient after a fire, so "conditions . . . may not need to be 'fixed'" to ensure long-term riparian health.[58]

Against this ecological backdrop, the Forest Service renders its post-fire logging decisions. Besides environmental considerations, however, the agency juggles political and financial pressures too. This has proven a stiff challenge.

III. Forest Service Post-Fire Logging Practices

Since its founding, the Forest Service has struggled to reconcile its institutional identity with fire and its effects.[59] The 1897 Organic Act authorized the Secretary of the Interior[60] to "make provisions for the protection against destruction by fire," and to sell "dead, matured, [and] large growth [] trees."[61] Congress lumped fire with the other "depredations" (like timber theft) as inimical to forest health.[62] The agency suppressed fire in the forests[63] to help conserve robust timber reserves for future rise in demand.[64] After World War II, the Forest Service abandoned its custodial philosophy[65] in favor of intensive timber harvesting.[66] The agency was anxious to meet the rise in demand,[67] and it "seized the moment" in the high demand economy of the 1950s and 1960s to fulfill that end.[68] The agency sought to "expand its reach without compromising its independence."[69] Clearcuts[70] facilitated high production volumes[71] and ensured vast even-aged stands of commercially valuable species.[72] Over the decades, feeble reform efforts had little effect on this rapacious trend.[73] Episodes of concerted dissent against the Forest Service's extractive bent failed to cut to the heart of the problem.

By the early 1990's, however, the veneer of reform had worn thin.[74] Timber sale volumes declined dramatically in a "sobering climate of resource scarcity, fiscal conservatism, management humility, and awareness of ecosystem degradation."[75] Not only were there fewer prime trees to cut after so many years of intensive logging, but a determined environmental community with an "aggressive litigation agenda"[76] vigorously defended those that remained, crippling the "harvesting juggernaut."[77] But as the "green" timber sale program withered, the salvage sale program blossomed.

A. The Rise of the Salvage Sale

The Forest Service has administered a formal salvage sale program since 1976, when the National Forest Management Act officially enabled it to do so.[78] Salvage sales have become a significant part of the Forest Service's operations, especially since the mid-1990s.[79] A combination of factors fuels the trend: increasingly intense and enduring western wildfires,[80] declining revenues from "green" timber sales,[81] and heightened emphasis on fire management generally.[82] Since "green" timber sales have fallen off, salvage sales make up a larger percentage of the total volume of Forest Service sales.[83] Black is the new green.

B. 1995 Timber Rider

Symptomatic of the rising prominence of salvage logging was the now-infamous "rider"[84] nestled in a 1995 Emergency Appropriations bill.[85] Undersecretary of Agriculture Mark Rey, then-aide to Senator Larry Craig (R-Id.), devised much of the bill's original language.[86] After a dramatic and widely publicized wildfire season in the summer and fall of 1994,[87] the salvage timber struck the law's proponents as "black diamonds sprinkled across the landscape just waiting to be collected."[88] The salvage rider allowed for below-cost salvage sales[89] (which could include healthy trees as long as the sale contained a "salvage" component) and suspended environmental laws to speed those salvage sales.[90] The Rider announced an "emergency period" lasting until September 30, 1997,[91] until which time the Secretaries of Agriculture and Interior were to use the law's expedited procedures[92] to increase the volume of salvage timber sales "to the maximum extent feasible . . . to reduce the backlogged volume of salvage timber."[93] The rider insulated salvage sales from administrative appeal[94] and curtailed the scope of judicial review.[95] Leery of questioning Forest Service actions under this extensive grant of discretion, courts gave the agency wide berth.[96]

Especially controversial was the inclusion of a provision ordering the Forest Service to revive certain previously offered green timber sales that had been cancelled or delayed because of legal challenges.[97] This provision applied to "all timber sale contracts," not just salvage sales.[98] This section belied the "emergency" rationale ostensibly underpinning the rest of the rider, indicating the true motives were economic, not ecological. By mandating that the revived timber sales make "no change in originally advertised terms, volumes, and bid prices,"[99] the provision "open[ed] the door to wholesale logging in the [West's] remaining old growth forests and roadless areas."[100] Now sensitive to this tactic of logging live old-growth trees under the "salvage" guise, environmentalists have grown wary of projects purporting to restore the landscape after fires.[101]

C. Post-Fire Response

Immediately after a wildfire, the Forest Service appraises the fire's immediate effects through the Burned Area Emergency Response (BAER) program.[102] Broadly, the purpose of this program is to "determine the need for and to prescribe and implement emergency treatments to minimize threats to life or property or to stabilize and prevent further unacceptable degradation to natural and cultural resources resulting from the effects of a fire."[103] The BAER process simply begins the task of "evaluat[ing] . . . the condition of forest resources."[104] Satellite imaging technologies, including remote sensing data, are helpful in measuring fire severity at the landscape level.[105] On the ground, groups of technical specialists conduct Burned Area Assessment field reports to identify the ecological and property elements at stake.[106] The resulting BAER Report enables the Forest Service to determine what "emergency stabilization" measures are needed and lays the groundwork for the agency's subsequent rehabilitation projects.[107]

After the initial BAER "stabilization" period, the agency identifies its rehabilitation (work up to three years after fires) and restoration (work beyond the first three years) priorities.[108] Field staff have fairly wide discretion here, for there is no discrete overarching program requiring the agency to classify, prioritize, and finance these projects in any particular way.[109] The Forest Service's stated goal for post-fire restoration is to "closely match historical or pre-fire ecosystem structure, function, diversity, and dynamics."[110] The agency determines from the initial BAER Report what long-term rehabilitation or restoration activities will further that goal, triggering the need for NEPA documentation if the project will have a significant effect on the environment.

Post-fire logging should not be confused with restoration. Though the agency does not often make the appropriate distinction between the two, the dissimilarity is plain given the primacy accorded to economic values over ecological values.[111] Salvage logging, which generates revenue deposited to Forest Service accounts,[112] is the only type of "restoration" project that replenishes rather than depletes agency coffers.[113] Indeed, the argument that receipts from salvage sales are needed to pay for restoration efforts[114] indicates that economic inducement, not rehabilitation, spurs post-fire logging.

D. Expedited Notice, Comment, and Appeals Processes

Speedy administrative processes facilitate higher post-fire timber profits; the faster the agency acts, the less time the wood has to rot.[115] To secure the maximum value from burned timber before the fiber deteriorates or otherwise becomes unmarketable,[116] the Forest Service seeks to expedite salvage logging projects. The agency also operates quickly because it regards the dead and dying trees as dangerous kindling tempting future fires.[117] Swift decisions may ensure higher timber values, but they run contrary to the "look before you leap" ethic underlying NEPA.[118]

The Forest Service views the administrative appeals process as a protracted, onerous waste of time.[119] Congress enacted the Appeals Reform Act (ARA) in 1993 to ensure availability of administrative appeals of Forest Service timber sales.[120] The law directed the agency to "establish a notice and comment process" for proposed projects and activities implementing land and resource management plans, and to modify the appeals process to allow those involved in the commenting process to appeal within forty-five days of the Forest Service's decision.[121]

In 2003, the Forest Service amended its regulations implementing the ARA.[122] In a display of "mystical legal prestidigitation," these new regulations provide that "decisions of the Secretary of Agriculture or Under Secretary, Natural Resources and Environment are not subject to the notice, comment, and appeal procedures set forth" in the regulations implementing the ARA.[123] However, district courts in Montana and California have found this provision in direct contravention of the ARA's mandate that the agency have an administrative appeals process in place.[124] The Forest Service cannot "streamline its appeals process by creating an escape hatch that thwarts congressional intent."[125]

The Forest Service asserts that post-fire logging reduces the risk of future catastrophic fire and is vital to avert waste and economic loss.[126] Based on these rationales, the Forest Service has the power to make an "emergency situation determination" (ESD).[127] An "emergency situation" is one "for which immediate implementation . . . is necessary for relief from hazards threatening human health and safety or natural resources" on National Forest or adjacent lands.[128] Since 2003, the definition has also included situations where delays in project implementation would "result in substantial loss of economic value to the Federal Government."[129] The agency may implement the project immediately after publishing notice of the ESD in a record or decision or a decision notice.[130]

In the events leading up to the litigation in Earth Island II, the Forest Service developed the "Power Fire Restoration Project" for the 17,000 acre Power Fire and "Freds Restoration Project" for the 4,500 acre Freds Fire.[131] Both Projects entailed post-fire logging.[132] The Forest Service identified four core purposes for the Power and Freds Fire Projects, most notable of which were to (1) reduce long term fuel loads to diminish future fire severity, and (2) "recover the volume and value of timber killed or severely injured by the fire for the purpose of generating funds to offset the cost of future restoration activities and supplying wood fiber to local sawmills."[133] To accomplish those goals, the agency partitioned the burned areas into eight separate timber sale units.

Keen to ensure that the sales proceeded in "an expeditious manner,"[134] the Forest Service sought Emergency Situation Determinations (ESDs) for both the Power and Freds Projects.[135] In its request, the agency stressed that "substantial loss of economic value to the Federal Government will occur if implementation of the [Record of Decision] were delayed," which would in turn "jeopardize the implementation of the project[s] resulting in long term consequences to the environment."[136] The agency estimated that if the sales were delayed for one year, as a consequence of rapid wood deterioration it would lose $11.3 million on the Power sales and $800,000 on the Freds sales.[137] The Regional Forester granted the ESDs on July 1, 2005, and the agency issued records of decision (RODs) for both sales on August 1, 2005.[138]

Emergency situation determinations like those in Earth Island II, which estimate some financial effects of delayed action, reveal what the agency stands to gain from individual salvage sales. Picturing millions of dollars rotting in the forest, the Forest Service seeks to act swiftly to secure that value.

IV. Trust Funds and Off-Budget Accounts: Wasteful Boondoggles or Islands of Stability?

With the foregoing ecological and factual background in mind, it is important to understand the Forest Service's fiscal incentive to conduct salvage sales. Uniquely potent financial incentives impel the Forest Service to favor timber harvesting, including post-fire logging, over other forest uses. A complex statutory patchwork of trust funds and other off-budget accounts not dependant on the congressional appropriations process[139] afford the Forest Service administrative flexibility.[140]

The funds are at once hailed as islands of stability secure against fickle legislators and mercurial politics,[141] and assailed as wasteful boondoggles breeding irresponsible and myopic decisions.[142] Those who take a dim view of the Forest Service's access to funds insulated from the congressional appropriations process argue that it allows the agency to "focus[] excessively on obtaining revenues from market commodities [i.e. timber], at the expense of other services."[143] Since a major function of trust fund financing in the natural resources context is to secure more money than would likely be forthcoming from Congress,[144] it follows that "one's view of the financing scheme tends to be influenced by one's view of the social merits of the activity in question."[145] In the post-fire logging context, the Forest Service deposits salvage sale receipts to a special fund[146] called the Salvage Sale Fund (SSF).[147] Environmental organizations opposed to post-fire logging, like the plaintiffs in Earth Island I and II, contend that this account generates biasing financial incentives to log without regard for ecological consequences.[148]

A. The Salvage Sale Fund

In 1976, the National Forest Management Act created the Salvage Sale Fund as a permanent appropriation authorizing the Forest Service to keep all money from salvage sales to pay for future salvage sale preparation and administration costs.[149] To kickstart the nascent salvage program, Congress appropriated three million dollars in 1977 and 1979,[150] with an additional thirty-seven million dollars in 1988 in response to severe fires in 1987.[151] Though salvage revenues were originally exempt from the revenue-sharing provisions mandating payments to states,[152] since 1988 Congress has included in every annual Forest Service appropriation a Continuing Resolution directing the agency to treat salvage revenue as receipts for purposes of the revenue-sharing program.[153]

Before the Forest Service collects or spends salvage sale funds, it must prepare a SSF Plan projecting anticipated costs and volumes to be harvested.[154] Regional Foresters must determine the amount of revenue needed to "maintain the Region's SSF,"[155] based on the information recorded in the SSF Plans. Plans identify direct and indirect costs to be funded by SSF revenue, where indirect costs are expenses "not specifically identifiable with, or traceable to, any specific output."[156] Direct costs encompass personnel costs for employees working on some portion of the salvage project (e.g. salary, benefits, travel, training, office space, computer equipment), equipment and materials costs, and contracting costs.[157] As if the direct costs were not sprawling enough, indirect costs cover salaries and benefits for general management personnel and business management personnel.[158]

Revenue from salvage sales stays under Forest Service control for exclusive Forest Service use.[159] This creates an incentive to conduct salvage logging projects, for it empowers agency managers to augment on-budget resources by selling burned timber, which generates off-budget revenue.[160] Because the agency profits from salvage sales, post-fire logging is "sometimes selected over other activities that might be more appropriate" under the circumstances.[161] Congress envisioned the SSF as a means for the Forest Service to pay for salvage sale preparation and administration costs,[162] thus rendering the damaged trees more attractive to timber purchasers.[163] Freed from those expenses, purchasers will, the reasoning goes, be more inclined to bid on salvage timber. The reality, however, is that the agency still lowers minimum bid prices[164] and most salvage sales are below cost.[165]

The SSF absorbs all revenue from salvage sales, and if the sale brings in money over and above what the agency spent to prepare and administer the sale, NFMA mandates that "excess" be directed to the U.S. Treasury.[166] Yet seldom, if ever, has the agency admitted to excess.[167] The breadth of the phrase "sale preparation and administration" is unbounded, so the agency shoehorns in a wide array of loosely associated costs.[168] In addition to direct costs like road construction, indirect costs may include overhead, staff salaries, and even vague "contingencies."[169] The SSF has swollen as salvage sales have come to account for an increasingly substantial portion of total Forest Service timber sales.[170]

B. The Knutson-Vandenberg Fund

The Salvage Sale Fund's counterpart in the realm of regular timber sales is the Knutson-Vandenberg Fund (K-V Fund).[171] While the two accounts have different purposes and mechanics, criticisms of excessive K-V Fund overhead expenditures translate to the SSF as well. The Knutson-Vandenberg Act of 1930[172] established the K-V Fund, the Forest Service's largest and most versatile fund.[173] Regular timber sales are the K-V Fund's primary source of income.[174] The law authorizes the agency to require timber purchasers to "make deposits of money in addition to the payments for the timber, to cover the cost to the United States" of sowing tree seeds and generally "protecting and improving the future productivity of the renewable resources of the forest land" in the sale area.[175] The Act vests the Secretary of Agriculture with discretion to charge the fee when "in his or her judgment such action will be in the public interest."[176] As a practical matter, the agency charges the fee for most timber sales.[177]

The K-V Fund's original purpose was to provide a mechanism for reforesting cut-over lands by authorizing the Forest Service to charge timber purchasers a premium to cover those costs.[178] Because the Forest Service can only use K-V money where timber sales occur, the K-V Fund "tend[s] to function as an incentive to engage in timber sales, reinforcing the handmaiden status of nontimber resources."[179] As economist Randal O'Toole argues, the agency came to regard "profits" (money left over after the costs of arranging and administering timber sales) as "losses" because that money went to the U.S. Treasury rather than remaining under agency control.[180] A boon to the government at large is a loss to the agency, a perverse situation indeed.

In 1957, the Forest Service dramatically amplified revenue directed to the K-V Fund through a subtle change in accounting practices. Abandoning its previous practice of itemizing the price of timber and the K-V premium fee separately, the agency shifted its policies to accept lump sum bids from timber purchasers.[181] The non-itemized bid assimilated the K-V fee, thus allowing the agency to treat most of the timber sale revenue as off-budget, flexible K-V money.[182] Agency discretion to use K-V funds was further expanded in 1976 under NFMA, which amended the K-V Act to allow spending of K-V funds for a vast range of activities.[183] This amendment reflected a preference for agency flexibility. In fact, the 1976 amendment gave the agency "such flexibility that the[] K-V funds amount to nearly wholly discretionary money for the Forest Service."[184] The K-V Fund has thus evolved from a modest, restoration-oriented trust to an expansive, bureaucracy-sustaining slush fund.

V. Does the Forest Service's Post-Fire Decision making Implicate Constitutional Procedural Due Process Concerns?

In Earth Island I and Earth Island II, Judge Noonan questioned the Forest Service's impartiality in view of longstanding Constitutional principles of procedural due process. Judge Noonan traced a skeletal argument suggesting that the Forest Service's financial interest in the outcome of post-fire timber sales might render its decisions "nullit[ies],"[185] but did not develop a thorough analysis of the Constitutional issues. Statutory conflicts of interest protections in the NEPA context[186] generally only apply to actors outside the federal government.[187] Restrictions in NFMA obligating the Forest Service to "insure timber will be harvested from National Forest System lands only where . . . the harvesting system to be used is not selected primarily because it will give the greatest dollar return or the greatest unit output of timber"[188] afford the agency wide deference.[189] The procedural due process right to a neutral decision maker, fundamental as it seems, it not constitutionally guaranteed absent a showing that the deprivation at stake involves a life, liberty, or property interest.[190]

A. Fifth Amendment Procedural Due Process: The Right to a Neutral Decision maker

The Due Process Clause of the Fifth Amendment provides that "no person shall be deprived of life, liberty, or property without due process of law."[191] Even before ratification of the Constitution, James Madison in Federalist Paper No.10 declared that "[n]o man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity."[192] The Fifth Amendment guarantee of due process encompasses procedural and substantive facets, but only the procedural strand is relevant in the post-fire logging context.[193] Predicated on a baseline of fundamental fairness,[194] this protection extends to all government proceedings that might deprive an individual of his or her life, or a liberty or property interest.

Procedural due process serves two basic goals: (1) ensuring accurate results through the use of fair procedures, and (2) reassuring people that they have been treated fairly.[195] Due process procedures are "responsive to demands for revelation and participation" because they "attach value to the individual's being told why the [decision maker] is treating him unfavorably and to his having a part in the decision."[196] Procedural due process requires a "neutral and detached judge in the first instance,"[197] though neutrality is only deemed compromised where there is actual bias or where the risk of bias is too high to be constitutionally tolerable.[198] The term "bias" subsumes a broad range of situations in which the decision maker has a personal or financial stake in the outcome of the proceeding.

Administrative agencies are subject to the Fifth Amendment's procedural due process guarantee of a "fair trial in a fair tribunal."[199] Due process "demands impartiality on the part of those who function in judicial or quasi-judicial capacities,"[200] and agency adjudications are no exception. As Judge Noonan opined, the function of agency decision makers "can be called judicial or quasi-judicial or even administrative without changing the relevant analysis,"[201] for it is the nature of the proceeding, not the label, that governs bias. Agencies are commonly vested with dual rulemaking and adjudicative powers, but the decision makers enjoy a presumption of honesty and integrity.[202] To overcome that presumption, the aggrieved party faces a difficult burden of persuasion to show that the risk of actual bias or prejudgment is impermissibly high.[203]

B. Threshold Inquiries: Is Procedural Due Process Triggered?

Procedural due process protections only apply to deprivations of life, liberty, and property, and do not extend to "all cases of unwelcome official decisions about individuals . . . ."[204] As the Supreme Court stated in Board of Regents of State Colleges v. Roth, "the range of interests protected by procedural due process is not infinite."[205] Two preliminary investigations will verify that the Due Process Clause applies: (1) the deprivation at issue must be individualized as opposed to policy-based,[206] and (2) the deprivation must implicate a liberty or property interest.[207] Absent these elements, the Due Process Clause does not protect against the claimed injury.

1. The Requirement of Individualized Decision Making

The Due Process Clause only applies to decision making that affects individualized property interests.[208] That is, procedural due process protections attach only to administrative actions that involve "adjudicative" type facts. Whereas general public policy decisions like rulemaking involve "legislative" type facts that embody principles of general application, individualized decisions involve "adjudicative" type facts that necessitate examination of particular facts on a case by case basis.[209] In determining whether decision making is individualized, the number of persons affected is less revealing than the type of facts involved (i.e. whether "legislative" or "adjudicative" facts are at issue). For instance, in Londoner v. City of Denver, the city assessed taxes on landowners whose property abutted a newly paved street.[210] The rationale was that since those owners benefited specially from the improvement, they should bear the bulk of the cost.[211] The city taxed particular landowners on the basis of individualized facts as to who received the benefits of the paved street. The Court held that the city denied the landowners procedural due process because it did not afford the landowners an opportunity to support their allegations by argument or submit proof.[212]

The Court reached the opposite result in Bi-Metallic Investment Company v. State Board of Equalization, where the city of Denver increased property taxes by forty percent for all city residents.[213] In that case, the Court held that due process rights are not implicated by an across-the-board tax levied against a large number of people.[214] The relevant facts were of wide applicability, based on "general determination[s]" of broad policy matters.[215] Such regulatory, quasi-legislative action does not trigger the Due Process Clause.

The Forest Service engages in individualized decision making when it adjudicates post-fire logging disputes. Through NEPA documentation, the agency assesses the proposed project's environmental impacts.[216] These are "adjudicative" type facts like those that triggered due process in Londoner because they depend on the particular features of the area and the specific attributes of the project. However, the matter is complicated by the use of Categorical Exclusions (CEs)[217] and programmatic environmental impact statements (EISs),[218] which are policy-oriented and entail the sort of general determinations involved in Bi-Metallic. Site-specific EISs prepared for actions of narrow scope may be "tiered" to programmatic EISs so as to minimize repetition and reduce paperwork,[219] incorporating by reference the broader analysis in the programmatic EIS.[220] While this dynamic suggests that some policy-based facts do shape the Forest Service's post-fire decision making, ultimately the project depends on case-specific facts. Categorical exclusions and programmatic EISs are used for site-specific projects, and are thus imbued with the type of "adjudicate" facts that trigger due process protections.

2. Deprivation of a Liberty or Property Interest

The Due Process Clause is not triggered unless the alleged deprivation involves a liberty or property interest.[221] Due process procedures, therefore, are not constitutionally mandated absent a showing of some "preexisting legal entitlement[]."[222] To determine whether due process requirements apply, courts look to the nature of the interest at stake.[223]

Liberty interests extend beyond literal freedom from bodily restraint or injury, to embrace such abstract interests as the right to practice a profession.[224] Liberty interests cover "those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men."[225] That formulation also encompasses stigmatic injuries to one's reputation, so long as the stigma also subjects the individual some other disability,[226] even one as trivial as the ability to purchase alcohol.[227] In Roth, the Court held a university's summary decision not to rehire a professor at the terminus of his year-to-year contract did not implicate due process rights.[228] The school did not make any charges against him impugning his "good name, honor, reputation, or integrity,"[229] nor did it impose "a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities."[230]

Against this backdrop, post-fire logging adjudications are not likely to implicate the type of liberty interest necessary to rouse due process protections. The Forest Service's decision to log after a fire does not hamper freedom in a corporeal sense, nor does it defame in a stigmatic sense.

Property interests under the Due Process Clause are defined differently than "property" under the Takings Clause, because the search for a "legitimate claim of entitlement" is broader than assessment of property already owned.[231] A court cannot assume an individual has a protected property interest, and must make the determination as a threshold matter.[232]

The Due Process Clause's procedural protection of property "is a safeguard of the security of interests that a person has already acquired in specific benefits."[233] While property interests "extend well beyond actual ownership of real estate, chattels, or money,"[234] a person must still "have more than an abstract need or desire"[235] for the benefit. The modern view of property interests triggering due process protections includes loss of government entitlements such as welfare benefits,[236] a shift from a historically narrow definition of property.[237] This recognition of "new property" is known as the entitlements doctrine.[238] A person must have a "legitimate claim of entitlement" to the property, as opposed to a mere "unilateral expectation."[239] Existing rules or understandings, independent of the Constitution, form and define property interests.[240] The professor in Roth had no legitimate entitlement to re-employment because neither his contract, nor state law, nor university policy secured such an interest.[241] His "abstract concern in being rehired"[242] was insufficient to spur due process procedures.

Where an individual possesses no explicit statutorily-created rights, courts look to the degree of discretion accorded the decision maker in rendering judgment.[243] This inquiry helps resolve whether the plaintiff has a legitimate claim of entitlement to property. Procedural protections are not, by themselves, sufficient to create a substantive property right.[244] Thus, where a university professor was not rehired after the school failed to take certain promised procedural steps in making its decision, the procedural lapse did not spawn a property interest in rehiring.[245] Similarly, in Federal Lands Consortium v. United States, the Tenth Circuit Court of Appeals held that the Forest Service's procedural protections for the grazing permit renewal process did not create a property right in the grazing permit's terms and conditions.[246] Despite having abandoned the rigid distinction between "rights" and "privileges" in Goldberg v. Kelly, the Supreme Court's ostensibly more elastic "new property" formulation fails to protect many significant deprivations.[247]

C. The Contours of Judicial and Administrative Financial Bias

Two types of pecuniary interests elicit procedural due process concerns. First, courts have recognized bias where individual decision makers stand to gain personal financial benefits from their decisions.[248] The test is whether the decision maker has a "direct, personal, substantial pecuniary interest."[249] Second, courts have recognized bias where the decision making body has an institutional financial interest that may lead it to make biased decisions.[250] This latter category is labeled "institutional" or "structural" bias.[251] Both situations admit de minimis incentives, so that only "strong" biasing motives violate due process.[252] The threshold, however, defies precise definition.

1. Judicial Bias

Courts have chiseled some rough touchstones over the years to resolve these slippery issues. Since there is no bright line rule specifying when a pecuniary interest precipitates too high a risk of bias, courts must settle the matter on an ad hoc basis. Generally, pecuniary interests are deemed to bias judicial proceedings where they are substantial enough to create a high risk of unfairness. In Tumey v. Ohio, the Supreme Court established the baseline rule that "officers acting in a judicial or quasi-judicial capacity are disqualified by their interest in the controversy to be decided."[253] In that case, where a mayor's salary was paid in part by court fees and costs levied by him in a judicial capacity, the Court held that his "direct, personal, substantial pecuniary interest" violated Fourteenth Amendment Due Process.[254] The Court stressed that "[e]very procedure which would offer a possible temptation to the average man as a judge . . . not to hold the balance nice, clear, and true"[255] denies due process of law.

To be substantial, the financial stake need not be as direct as it was in Tumey.[256] In Ward v. Village of Monroeville, sums from a mayor's court accounted for a substantial portion of municipal revenues, but the mayor's personal salary was not augmented by these funds.[257] The Court found a violation of due process because the mayor's partisan responsibilities for the town's finances were "practically and seriously inconsistent" with his judicial role.[258] The institutional bias in Ward was so strong as to violate due process because the mayor had an incentive to levy high fines against criminal defendants as the executive directly responsible for the city finances.[259]

Due process is not infringed if the financial interest is "too remote to warrant a presumption of bias."[260] Dugan v. Ohio[261] presents an instructive contrast to the decisions in Tumey and Ward. In Dugan, a mayor received a fixed salary from the city, "had a right to vote on the appropriation and spending of city funds," and was empowered to levy fines for the offense of "possession of intoxicating liquor."[262] Half of the amount was deposited in a general fund of the city treasury, out of which his salary was paid.[263] The Court held there was no breach of due process.[264] Crucial to the Court's analysis was that under the city charter the mayor had no executive authority and his salary was drawn from a general fund, unaffected by whether he convicted or acquitted in a particular case. The mayor had no personal financial interest in the outcome of the cases he heard because he received no fees or compensation depending on conviction or acquittal, and he had no institutional financial interest because he lacked executive responsibility for the town's finances.[265]

The test for judicial bias was further refined in Gibson v. Berryhill,[266] where the Court deemed the Alabama Board of Optometry (composed only of optometrists in private practice) biased in its ethical conduct adjudications because the members had a financial interest in putting commercially-employed optometrists out of business. The Court probed for "substantial pecuniary interest,"[267] and found no clear error in the district court's finding that the Board's financial interests in the outcomes of its decisions was amply high that risk of bias was too great.[268] The Board was constitutionally disqualified from hearing the charges filed against commercially-employed optometrists because revocation of licensure would "possibly redound to the personal benefit"[269] of Board members.

2. Administrative Bias

In the context of traditional judicial proceedings, a decision maker is deemed biased by financial interests only where the interest is substantial and direct.[270] A parallel standard governs administrative bias, where administrators are presumed to be fair and impartial absent some showing of actual bias or a probability of bias too high to be constitutionally tolerable.[271] That is, to prove a violation of procedural due process, a plaintiff must show an "unacceptable probability of actual bias on the part of those who have actual decision making power."[272] As in the judicial realm, where "[t]he Due Process Clause entitles a person to an impartial and disinterested tribunal,"[273] so too must adjudications by administrative agencies be impartial.[274] There is a strong presumption in favor of impartiality,[275] and analysis is acutely fact-intensive. A nuance of administrative bias is the subtle distinction between individual versus institutional bias.[276]

In the administrative realm, as in the judicial realm, no sharp threshold distinguishes de minimis bias from impermissible bias. Analysis hinges on intensive factual inquiry as to the amount of money at stake, where the money is channeled, and who makes the spending decisions.[277] In Marshall v. Jerrico, Inc., the Supreme Court held it did not impinge due process for civil penalties levied by the Employment Standards Administration of the Department of Labor (for violations of the Fair Labor Standards Act) to go directly to the agency as reimbursement for its investigative and legal costs.[278] The Court held there was not an impermissible risk of bias in enforcement and administration, and hence no due process violation.[279] The Court reasoned the potential for bias was "too remote and insubstantial"[280] because not only did revenue from civil penalties amount to less than one percent of the agency budget, but the bulk of the funds were returned to the U.S. Treasury.[281] Because the prospect of institutional gain was so implausible, and because no individual administrator was "financially dependent on the maintenance of a high level of penalties,"[282] there was no contravention of due process.

In an opinion written by retired Justice White,[283] the Ninth Circuit applied a very similar test[284] to an allegation that the City of Berkeley's rent control board was not an impartial adjudicator because it financed itself by assessing late payment penalties on landlord registration fees.[285] The court held the financial benefit to the board was de minimis because only five percent of the budget could ever possibly be at stake.[286] Moreover, if it ever lacked funding, the board was authorized by its charter to seek money from the City of Berkeley or other sources.[287] The court did acknowledge the "less than optimal" design of the board's structure for due process purposes, wherein the board was both "adjudicator of [rent control] coverage and executor of its finances."[288] The system was not unconstitutional, however, because neither the amount of money at stake nor the incentive to collect it posed an ample temptation "not to hold the balance nice, clear, and true."[289]

A recent D.C. Circuit case offers further insight into the factors at issue in determining administrative bias. In Village of Bensenville v. Federal Aviation Administration, the Village of Bensenville invoked the Religious Freedom Restoration Act to challenge the Federal Aviation Administration's (FAA) approval of an airport expansion plan, which required relocation of a church cemetery.[290] The Village contended that it was denied a fair hearing by the FAA because the agency "create[d] financial incentives that drive FAA employees and officials to approve runway projects" and "employ[ed] individuals who formerly worked for the [City of Chicago, owner of the airport]."[291] While conceding that "administrative decisions made by adjudicators with a pecuniary interest in the results of the proceeding may suffer reversal," the court found the assertions at bar too "vague and conclusory" to establish an infringement of due process.[292] The FAA's "standard performance-based compensation system" did not generate improper financial incentives, the court held, for bonuses were not directly linked to runway approvals.[293]

In sum, while administrative adjudications are subject to due process standards and may be overturned upon a showing of substantial bias, case law demonstrates that there are no precise bounds to the term "substantial." To parse de minimis biasing incentives from substantial biasing incentives, courts make ad hoc determinations based on the particular facts of each case. Actions taken by agencies vested with concurrent adjudicative and executive roles are presumed valid absent a strong showing of risk of bias.[294] "[G]eneralized assumptions of possible interest" will not suffice.[295]

VI. Is the Forest Service a Biased Adjudicator?

The powerful financial incentives engendered by the Salvage Sale Fund and the Knutson-Vandenberg Fund help to explain the Forest Service's proclivity for post-fire logging. Forest Service managers, like all rational administrators, respond to incentives that promise to enhance fiscal flexibility and advance career prestige.[296] Indeed, the "incentives [driving the Forest Service] are so pervasive that most people simply take them for granted as immutable."[297] Forest Service managers ignore these pressures at their peril, for to disregard such incentives would be to slight a very important source of funding. Because the agency has wide discretion over how to spend deposits from post-fire timber sales, the decision not to log would necessarily diminish the potential to cull off-budget income.

Like private sector employees, employees in bureaucracies naturally desire "organizational stability" and job security.[298] As Randal O'Toole argues, Forest Service employees will take logical steps to maximize their budget.[299] The K-V Fund and the SSF are structured so as to keep timber sale revenue under agency control-a windfall to "[a] bureaucracy, protecting its turf and cherishing the number of its employees and the extent of its empire."[300] Under this budget maximization theory, "the Forest Service would attempt to minimize the amount of land devoted to wilderness and keep these lands with the largest timber sales potential in the nonwilderness category."[301] Revenue from regular and salvage sales flows to each level of the Forest Service bureaucracy, from the Washington office down to the district offices.[302] Agency officials "at every level" have a budgetary incentive to log.[303] The potential for financial bias, therefore, arises at both a personal and institutional level: individual decision makers may be motivated by desires to secure their own jobs and fund their particular programs, while the agency's budget structure reinforces those incentives by ensuring that timber sale revenue remains off-budget.

It is axiomatic that action agencies are inclined to proceed with projects they propose,[304] but that proclivity does not necessarily translate to disqualifying bias. Were that true, government would grind to a halt for want of absolutely impartial decision makers. By requiring a record utterly purged of bias, agency preferences might slip into "the land of winks and nods,"[305] obscuring motivations even further. Pecuniary bias, however, presents a singular dilemma. Action tainted by the prospect of financial gain seems inherently unfair and prejudicial. A sense of fundamental injustice though, without some recognized property or liberty interest, is not enough to obtain due process protections.

A. Due Process Claims in Post-Fire Logging Adjudications: Dead on Arrival?

Under modern procedural due process entitlement doctrine, those who contest Forest Service decision making in post-fire adjudications probably do not have a judicially cognizable due process property or liberty interest at stake. Though it may be that "[n]onconsumptive users advance no less a liberty concern than consumptive users when they argue for a free flowing river or an intact wetland,"[306] the prevailing entitlements doctrine is not of such an expansive scope.

Environmental groups couch their objections in statutory terms, citing procedural and substantive violations of statutes such as NEPA and NFMA and using APA "arbitrary and capricious" review as the vehicle to carry those arguments to court.[307] These procedural protections do not beget property rights.[308] A property interest is a precondition for Fifth Amendment Due Process inquiry, and a lack thereof would be fatal to a procedural due process claim in a post-fire logging adjudication. A more thorough assessment of the potentially biasing financial incentives at stake in post-fire logging adjudications reveals the fundamental injustice done by a narrow entitlements doctrine.

1. Substantiality of the Pecuniary Interest

Since the Supreme Court's holding in Tumey, substantial financial interests have been held to violate basic procedural due process.[309] The Forest Service's financial stake in post-fire timber sales is unmistakably substantial: not only do salvage sales account for between one third and one half of annual harvests,[310] but the agency derives roughly forty percent of its total timber sale revenue from salvage sales.[311]

In 2006, the Forest Service sold over 970 million board feet (mmbf) of salvage timber for $67 million, accounting for roughly thirty-four percent of the agency's total timber sales.[312] In 2005, the agency offered over 880 mmbf for $64 million, about fifty-four percent of the agency's total timber sales.[313] Salvage sales in 2000 and 2003 were comparatively low at about 390,000 MBF for each year, but regular sales were in corresponding slumps.[314] Thus, while salvage sale volumes were lower in those years, they still accounted for about half of the total volume sold.[315]

In developing petitions for emergency situation determinations, Forest Supervisors typically estimate the potential financial consequences of delay.[316] By the agency's own estimation, it suffers a "substantial loss of economic value" from delay.[317] In Earth Island II, the agency pegged losses at $11.3 million for the Power Restoration Project and $800,000 for the Freds Project.[318] Regardless of the precision of these estimates, the relevant inquiry for the purpose of showing potential financial bias is what the value the agency perceives is at stake, not the value in fact at stake. If in its own estimate it has much to lose, the agency will have an incentive to push for the post-fire logging project.

2. Directness of the Pecuniary Interest

Pecuniary interests must be sufficiently direct to rise to constitutionally impermissible levels.[319] Without this directness element, the link between decision and benefit may be too tenuous to qualify as bias.[320] The mechanics of the Salvage Sale Fund, which affords the agency flexibility in allocating the money for overhead and administrative purposes, gives individual agency decision makers a direct incentive to log after fire.[321] Much like the situation in Ward, where an institutional incentive to levy fines created a high likelihood of financial bias, the Forest Service has a similarly potent incentive to generate salvage sale revenue.

Once deposited in the SSF, post-fire timber sale revenue is available for a wide array of uses, including all aspects of the sale from site preparation and NEPA planning through sale administration and litigation.[322] The Forest Service Manual also lists a catchall "General Administration and indirect costs" category as appropriate for use of SSF money,[323] which includes payments for line officer salaries, support costs for line officers, and personnel.[324] Salvage sale revenue may also be spent on "procurement and other activities that broadly support all resource functions" related to the salvage sale.[325] Unlike the situation in Dugan, where there was little risk of financial bias because the mayor's salary did not depend on penalty revenues and he had no control over spending the income, here Forest Service districts spend salvage revenue and have discretion to apply it in a medley of uses. By and large, salvage sale revenue generated in a district stays in that district.[326]

Overhead costs charged to the Salvage Sale Fund, as with the K-V Fund, sustain Forest Service bureaucracy.[327] As salvage sales rose in prominence through the 1990s, so did the amount of overhead charged to the SSF.[328] In the mid-1990s, the Forest Service's Washington office raised overhead charges by 800 percent, from $500,000 in 1993 to $5.4 million in 1997.[329] There is no overarching clarity as to what "indirect expenditures" may include, so uses vary somewhat Region to Region.[330] While the agency views these administrative support and indirect expenses as "essential costs of getting the work done on the ground,"[331] others perceive such expenses as foreclosing on-the-ground work.[332] There is truth to both views-overhead costs are necessary to run programs, but inflated overhead costs drain a limited pool of money. Regardless, the mere fact that salvage revenues go to pay overhead costs suggests a high risk of bias under the standards set by Tumey and its progeny.

Regional Foresters are authorized to pool salvage revenue from all National Forests within the region and maintain a single fund out of which they make subsequent disbursements to particular districts.[333] This system is not intended to simplify accounting, but to facilitate salvage revenue transfers between National Forests.[334] The pooling scheme is "not intended to fund Forests unable to attain or sustain a viable salvage sale program."[335] This dynamic not only encourages individual districts to generate their own salvage revenue, but it also provides some shelter against incursion for salvage revenue already earned. Remember also that the Regional Forester is vested with dual authority to oversee regional SSF administration[336] and to render emergency situation determinations.[337] This patent conflict of interest raises exactly the type of potentially biasing situation held constitutionally impermissible in Tumey and Ward.

Substantial and direct financial incentives plague Forest Service post-fire logging decision making. These incentives create an impermissibly high risk of bias, and would likely violate the Fifth Amendment's procedural due process guarantee of a neutral decision maker-if the Due Process Clause is triggered. Based on the earlier explanation of the entitlements doctrine, however, the Clause would not likely apply in a post-fire logging adjudication because most plaintiffs would be hard-pressed to demonstrate any legitimate claim of entitlement. While the Forest Service does indeed "determine[ ] the legal rights of a private corporation and the legal rights of those seeking to enforce the statutes protecting the environment,"[338] the latter group will rarely, if ever, be able to muster a judicially cognizable liberty or property interest. It is true that "[t]he requirement of impartiality is imposed by the constitution,"[339] but only when certain forms of liberty or property are at stake. Judge Noonan's assessment of the situation is correct-if a plaintiff demonstrates a liberty or property interest to trigger due process protections. In its current manifestation, however, the Supreme Court's conception of liberty and property does not likely encompass plaintiffs' interests in post-fire logging adjudications.

VII. A New "New Property" Interest in Post-Fire Logging Adjudications

Environmental organizations like Earth Island, sensing that the Forest Service slighted their interests in a decision to log after a wildfire, will be unable to invoke the Fifth Amendment's procedural due process protections no matter how severe the ecological harm nor how substantial the agency financial bias. Absent a judicially cognizable liberty or property interest, there is no Fifth Amendment guarantee of a neutral decision maker. Some commentators have envisioned a more expansive conception of due process, however, that would "give[] every person in America a constitutional right to . . . a clean and healthy natural environment."[340] Latent in that sweeping ideal are the rudiments of a new notion of property, broadening the modern entitlements doctrine.

Charles Reich first posited his "new property" framework in 1964, arguing that the Supreme Court's view of property was too narrow given the rise of "non-traditional interests" like welfare benefits. The Court adopted a "modest" version[341] of that innovation when it recognized a welfare recipient's right to procedural due process protection in Goldberg v. Kelly,[342] but entrenched the entitlements approach in Board of Regents v. Roth.[343] Reich argues that procedural due process protections are warranted because "[p]ollution of the ocean, or lumbering the last ancient forests, or commercial development of the national parks . . . have a direct impact upon the quality of our lives and are part of each person's share in the commonwealth,"[344] and in this sense we all own "property" in the environment. In a similar vein, Michael Herz argues that NEPA reveals "what procedural due process could be without the entitlements doctrine: a due process responsive to actual human harms, that rests on dialogue and engagement, that explores alternatives . . . ."[345] This is precisely the sort of paradigm shift necessary to secure procedural due process protections in the post-fire logging context.

VIII. Conclusion

Post-fire timber sales are an acute illustration of the skewed incentives driving Forest Service timber sales generally. As the revenue from traditional timber sales has declined, post-fire timber sales offer a new way to substantially augment the Forest Service budget. While the agency's extractive bent is likely due to a variety of factors apart from financial incentives,[346] the ability to derive off-budget revenue from timber sales is undeniably enticing. While the procedural due process principles Judge Noonan espoused in his Earth Island I and Earth Island II concurrences cannot gain traction without a liberty or property interest, those terms are not stagnant. Just as the rise of welfare benefits and other government entitlements programs wrought a fresh conception of property in Goldberg, so might future courts come to recognize the moral frailty of current entitlements doctrine. A stilted view of liberty and property should not cripple the right to a neutral decision maker in post-fire logging adjudications.