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Yellowstone Fires of 1988 Analysis


The Yellowstone fires of 1988 occupy a distinctive place in the history of the United States, largely as a result of the force and extent of public scrutiny and media attention that the fires received, as well as for the “great costs of their attempted suppression” (Agee et al. 678). The Yellowstone fires of 1988 is actually a bit of a misnomer, according to Schullery (686). The fires themselves actually took place in the Greater Yellowstone Area, which represents 4.8 million hectares of “mostly public land in Wyoming, Montana, and Idaho” (Schullery 686). The Greater Yellowstone Area is a vast tract of wilderness and national parks, including the Yellowstone National Park and the Grand Teton National Parks, as well as “two national wildlife refuges, six national forests, and [acres of] state and privately owned land” (Schullery 686).

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In addition, the fires that raged across the Yellowstone National Park and the Greater Yellowstone Area in the summer of 1988 remain significant as a result of the “timely test they provided for the management philosophies, policies, and programs of parks and wilderness areas” (Agee et al. 678). Several factors demonstrated by the Yellowstone fires of 1988 provide important insight into environmental law policy as well as disaster law policy. The government of the United States initiated its fire protection policies on public wild lands in the late 19th century, when the United States Cavalry took over the management of the Yellowstone National Park in 1886.

As the country’s first national park, the Yellowstone National Park served as a litmus test for a number of governance issues, although certainly at the time of its creation, the issue of the environment, environment protection, pollution and commons resource management was not as prevalent as it is in the current century. In 1963, according to Agee et al., the Leopold Committee came together to analyze a number of issues in the park as well as the Greater Yellowstone Area, including wildlife management issues (678). At that time, the Leopold Committee advised that the policy of total fire suppression be reformed under specific guidelines (Agee et al. 678; United States Geological Survey 3).

The National Park Service adopted the recommendations in 1968. The agency “modified its fire policies…so that naturally ignited [and] lightning fires, burning within prescribed guidelines, could be incorporated into the overall agenda of national park management” (Agee et al. 678). These so-called “natural-fire management plans” were applied in the Greater Yellowstone Area after 1972 (Agee et al. 678) The foundation of these natural fire management policies, according to Agee et al., was “based on past experience and historical data indicating that fuel conditions confined large fires to old growth pine or aging spruce fir forests” (678).

The enormity of the Greater Yellowstone Area and the immensity of the Yellowstone wilderness ecosystem was “assumed to be adequate to contain natural fires,” an assumption which proved costly not only on an economic scale but also on an environmental one.

Though wildfires have long been synonymous with fear, death and destruction, in reality wildfires have cleansing and renewing effects for the forests that they sweep through periodically. Many of the vast tracts of wilderness such as those found in the Yellowstone National Park as well as in the Greater Yellowstone Area have been formed by fire; in fact, wildfires are as equally beneficial to forests as the “cool, creeping ground fires often described as good for grass production” (“National Park Service: Wildland Fire in Yellowstone” par. 1).

In a complex and primordial ecosystem such as that that exists in the Yellowstone National Park and the Greater Yellowstone Area, ecologists understand that wildfires – specifically those sparked by lightning strikes – are natural acts that support the rejuvenation of trees and vegetation (House Senate Committee Action 2964). According to the National Park Service, “the natural history of fire in the park includes large scale conflagrations sweeping across the park’s vast volcanic plateaus, and hot, wind-driven fires torching up the trunks to the crowns of the pine and fir trees at several hundred-year intervals” (par. 1).

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Up until the 16th century and the arrival of the Europeans to the North American landscape, wildfires were a normal part of the natural world and helped define the ecosystems that exist today, particularly in places such as the Yellowstone National Park and the Greater Yellowstone Area, which house millions upon millions of trees. The vast majority of the plant species indigenous to the Yellowstone National Park and the Greater Yellowstone Area are “fire adapted” (“National Park Service: Wildland Fire in Yellowstone” par. 3). For example, the lodge pole pine, or pinus contorta, comprises almost 80 percent of the Yellowstone National Park’s forests (“National Park Service: Wildland Fire in Yellowstone” par. 3).

Lodge pole pines contain cones that are serotinous; these cones are preserved within the core of the tree by resin until the powerful heat of the wildfire bursts the bonds and liberates the seeds within them (“National Park Service: Wildland Fire in Yellowstone” par. 3). Wildfires also kindle the rejuvenation of willow trees, sagebrush, and aspens; however, the relationships between these species of plants and wildfires is convoluted by other factors, such as grazing stages and weather (“National Park Service: Wildland Fire in Yellowstone” par. 3).

In fact, when a wildfire strikes, “though above ground parts of grasses and forbs are consumed by flames, the below ground root systems typically remain unharmed, and for a few years after fire these plants commonly increase in productivity” (“National Park Service: Wildland Fire in Yellowstone” par. 3). Once the Europeans landed however, in essence wildfires took on their current dangerous and destructive connotation, largely because they destroyed property. However, in truth “wildfires play important roles in fertilizing soil, stimulating seed germinating, and supporting wildlife” (Verchick 39).

The following paper will critically examine and comment on the topic of environmental and disaster law as it relates to the Yellowstone Fires of 1988. The paper will show an awareness of relevant primary and secondary authorities and provide an in-depth analysis of the federal laws that govern the multiple stakeholder agencies that manage the Yellowstone National Park. The analysis that this paper provides reveals several of the major problems that continue to best environmental layers, disaster lawyers and policy makers in the area of resource management of large commons such as the Yellowstone National Park.

These include competing interests, diminished natural infrastructure, special interest politics, corruption, mutually exclusive goals, lack of cohesion between state and federal governing bodies, lobbying, and value shifts. These problems came to light extensively throughout the Yellowstone fires of 1988, and to a large extent, none of them have been solved to this day. While the goals of environmental and disaster law may be to preserve and protect the natural resources and natural infrastructure of the United States, as this paper will demonstrate, the law is very often hamstrung by misalignment of priorities, misallocation of funding, infighting and corruption.

In addition, lack of effective communication and transparency between stakeholder agencies, including legal entities such as the Environmental Protection Agency, often leads to the dissipation and scattering of information and ensuing weakening of legal frameworks. As Robert Verchick, author of Facing Catastrophe: Environmental Action for a Post-Katrina World explains:

Much of the data we have is scattered throughout academic disciplines and throughout many countries; and there are not enough people who are tying all of this learning together. The biologist counting polyps on the Great Barrier Reef doesn’t talk with the fire suppression expert in Yellowstone National Park; and neither of them…chats much with environmental lawyers or policy makers” (27).

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Environmental law exists to minimize the failures of environmental governance, protect natural resources, and ensure that the natural resources of an individual nation are used appropriately, “justly and wisely” (Verchick 61). In disaster law, this is especially true. The Yellowstone fires of 1988 revealed a sizeable hole in the disaster law infrastructure and response mechanism, not to mention the governance and application of environmental law as a whole.

Since the Yellowstone fires of 1988, this hole has increased in size, as evidenced most recently by the abject failure of the disaster law response to Hurricane Katrina in 2006. While the mission of disaster law in the United States may still pay lip service to governance and maintenance of the natural infrastructure and resources of the United States, in reality, disaster law and environmental law has not recovered its footing since the Yellowstone fires of 1988. As Verchick notes, “decades ago, America was the undisputed leader in environmental protection” (61). America’s environmental “laws and ideas were studied and copied around the world” (Verchick 61).

Not surprisingly, since the United States is blessed with some of the most breathtaking and awe inspiring natural resources on the planet. However, since the Yellowstone fires of 1988, this vaunted position has slipped significantly. Today, as Verchick laments, the United States is “coasting in the sag wagon, with much to learn from the European Union, Japan and others” about environmental policy and protection (61). It would appear that if the United States fails “to reinvigorate [its] laws and enforcement methods, [it is] doomed to lose the irreplaceable infrastructures that keep many of [its] communities and commercial activities alive” (Verchick 61).


Yellowstone Fires.
Yellowstone Fires.

Fire Suppression Policies

Certainly, the point of this paper is not to suggest that all naturally occurring fires are advantageous. In contrast, the number of wildfires in the United States have continues to grow in their power and devastating impact. When the Yellowstone fires of 1988 happened, it was the federal government’s long standing policy of fire suppression that came under scrutiny and chastisement form both the media and from the park stakeholders involved in the management of federal lands.

Over the course of the 20th century, both the management of the Yellowstone National Park and the public that uses the park persisted in seeing a wildfire as a “destructive force, one to be mastered, or at least tempered to a tamer, more controlled entity” (McGinnis 38). Before the arrival of the European population, the early stewards of the park chose to “battle all blazes in the belief that fire suppression was good stewardship” (McGinnis 38). This value system began to change around the time of the Second World War (McGinnis 38; “National Park Service: Wildland Fire in Yellowstone” par. 7). As McGinnis explains:

By the 1940s, ecologists recognized that fire was a primary agent of change in many ecosystems, including the arid mountainous western United States. In the 1950s and 1960s, national parks and forests began to experiment with controlled burns, and by the 1970s Yellowstone and other parks had instituted a natural fire management plan to allow the process of lightning caused fire to continue influencing wild land succession (39).

In the early years of the Yellowstone National Park’s fire policy from 1972 through 1987, “235 fires were allowed to burn 33,759 acres” “National Park Service: Wildland Fire in Yellowstone” par. 7). Of these fires, only 15 spread across more than 100 acres; in addition, each of these fires was doused naturally by rainfall (“National Park Service: Wildland Fire in Yellowstone” par. 7). More rain fell during the summers between 1982 and 1987 than average; this fact may have “contributed to the relatively low fire activity in those years” (McGinnis 38; “National Park Service: Wildland Fire in Yellowstone” par. 7).

However, the fires that raged in the Yellowstone National Park in 1988 sparked an equally fiery discussion regarding the proper role of naturally occurring forest fires on land managed by the federal government. Prior to the fires of 1988, the federal government give preferentiality to the policy of fire suppression in Yellowstone (“National Park Service: Wildland Fire in Yellowstone” par. 1). Fire suppression refers to the practice of dousing wild fires the moment they are caught; this practice “not only prevented the development of habitat…but also allowed the accumulation of dense undergrowth, increasing the risk of larger, more explosive fires” (“National Park Service: Wildland Fire in Yellowstone” par. 1). The policy of fire suppression was built on the system of values prevalent at that time in history which favored short term solutions to fires that occurred naturally within the park. As Clark explains, the Yellowstone fires of 1988 revealed the faultiness of this logic:

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Repeatedly, management decisions made on the basis of short term needs, single species, or other narrow foci have been frustrated or have produced unexpected consequences because of unforeseen linkages across space and time, often caused or affected by humans (61).

The fire suppression policies of the 1980s were a clear indication of this phenomenon. The fire suppression practice was designed to temper the short term harm caused by naturally occurring fires in the park. However, the “long term build up of fuels…caused the major fires of 1988 that were beyond the capacity of the interagency effort to contain them (Clark 61). In the current century, the policies that govern the Yellowstone National Park policy are intended to defend the naturally occurring wildfires within the park within realistic limits under the current practice of controlled burns (Clark 61; Verchick 39). However, as Verchick notes, “fire suppression remains a widespread practice on federal land, particularly where marketable timber is at stake” (39).

Fire suppression may seem a natural and logical response to a forest fire. Indeed, in any other context than the Yellowstone wilderness, the best practice concerning a fire is to suppress it by any means necessary. However, in a complex ecosystem such as the Yellowstone National Park, one that actually benefits from wildfires, the values shifted after the wildfires of 1988 to policies that embraced the natural approach to wildfires and controlled burns (McGinnis 38; “National Park Service: Wildland Fire in Yellowstone” par. 1; Wuerthner 91)

The results of human efforts to improve the behavior of a complex ecosystem in “a critical state are unpredictable and can actual make the performance worse” (Schumann 30). Since the late 19th century, the Forest Service was committed to putting out whatever fire they came across immediately. As Schumann explains, the “logic behind that policy was that it was better to catch a fire small before it became big” (30).

In 1998 the Yellowstone fire consumed almost 800,000 acres, 36 per cent of the park, and the number and intensity of forest fires was increasing everywhere. Also in 1998, the geologists Bruce Malamud, Gleb Morein, and Donald Turcotte of Cornell University gathered extensive data on forest fires. They demonstrated that the number of acres consumed in a forest fire followed an inverse power law of 2.48. A forest is a complex system in a critical state, at least for forest fires. The actions of the forest service were inadvertently making the critical state more dangerous by not allowing the small naturally occurring fires to keep the system in its natural state (Schumann 30).

Some legal and ecological scholars have indicated that fire suppression may not have caused as much of the spread of the fire as the media reported (Despain and Romme 695). Despain and Romme surveyed the Yellowstone National Park’s records to show that “lightning ignitions have occurred every summer, [and that] even without suppression, most of these ignitions fail to spread (695). Rather, the wildfires are extinguished either “in a fuels complex that cannot support fire spread or during a period of wet weather” (Despain and Romme 695). Historically speaking, the indigenous vegetation of the Yellowstone National Park and the Greater Yellowstone Area burned in regular cycles of two to five years at a minimal intensity (McGinnis 38; “National Park Service: Wildland Fire in Yellowstone” par. 6).

In this natural cycle of wildfire, the adult trees were not affected by the fire; the wildfire affected the top layer of the vegetation only. As a result, “the grass fires kept a fine balance so that neither trees nor grasses dominated. Until, that is, the arrival of cattle and sheep in the 1800s” (McGinnis 38; “National Park Service: Wildland Fire in Yellowstone” par. 6). The grazing of cattle in the region removed a large portion of the naturally occurring grasses (McGinnis 38; “National Park Service: Wildland Fire in Yellowstone” par. 6). Ironically, the value system in place at that time supported the loss of the grasses as a preventative measure against wildfires.

As the grasses in the region disappeared, the net effect was a transformation in the ecology of the region. Once there were less natural grasses to prevent erosion, the rain created gullies, some of which were over 40 feet in depth – this effectively flushed away large portions of the vital topsoil (Despain and Romme 695; McGinnis 38; “National Park Service: Wildland Fire in Yellowstone” par. 6; Wuerthner 91). At the same time, the population of the indigenous trees developed rapidly (Despain and Romme 695; McGinnis 38; “National Park Service: Wildland Fire in Yellowstone” par. 6; Wuerthner 91). For example, according to McGinnis, “the ponderosa pine population jumped from an average of 23 trees to 851 trees per acre” (39).

The policy of fire suppression has caused controversy among ecologists for a number of years. In regions where the park used suppressed fires, the result is the same as placing more fuel on the flames (Despain and Romme 695; McGinnis 38; “National Park Service: Wildland Fire in Yellowstone” par. 6; Wuerthner 91). When a wildfire does get sparked it becomes more powerful, and more likely to destroy the bigger adult trees by setting fire to them (Despain and Romme 695; McGinnis 38; “National Park Service: Wildland Fire in Yellowstone” par. 6; Wuerthner 91).

Fire suppression has also made shade tolerant trees including incense cedar and white fir to occupy the territory of the ponderosa pine, once the predominant species of the region (Despain and Romme 695; McGinnis 38; “National Park Service: Wildland Fire in Yellowstone” par. 6; Wuerthner 91). If fire is permanently suppressed therefore, these trees will effectively take over the region forever (Despain and Romme 695; McGinnis 38; “National Park Service: Wildland Fire in Yellowstone” par. 6; Wuerthner 91). Nature, however, takes care of species invasion in its own way, since whenever a fire that cannot be suppressed comes along – as in the case of the fires of 1988 – the system resets itself (Despain and Romme 695; McGinnis 38; “National Park Service: Wildland Fire in Yellowstone” par. 6; Wuerthner 91).

In controlled burns, on the other hand, the policy trusts that the fire will take care if itself. Firefighters will watch the fires, which can be any size from 100 to 3,000 acres; however, emergency services are rarely if ever needed (Despain and Romme 695; McGinnis 38; “National Park Service: Wildland Fire in Yellowstone” par. 6; Wuerthner 91). Typically, a controlled fire will almost always exhaust itself. As McGinnis explains:

To pare the buildup of fuel, fire managers need to do a lot of prescribed burns. But they can’t. As in many areas of the West, complaints about man-made fire…roll in thicker than smoke. People see fire as a harmful and destructive force and are repulsed when flames turn forest to ash. Objections to the smoke from nearby homeowners…stringent air-quality regulations, and a lack of funds all hamstring forest managers’ efforts (40).

Policies aside, most forests are designed to regenerate (Despain and Romme 695; McGinnis 38; “National Park Service: Wildland Fire in Yellowstone” par. 6; Wuerthner 91). And even if the forest does go up in smoke, the hardy saplings can usually withstand the fire to a much higher degree than their adult counterparts can (Despain and Romme 695; McGinnis 38; “National Park Service: Wildland Fire in Yellowstone” par. 6; Wuerthner 91). Without wildfires, however, other species of trees such as maple and birch will eventually take root and overwhelm the area (Despain and Romme 695; McGinnis 38; “National Park Service: Wildland Fire in Yellowstone” par. 6; Wuerthner 91).

This is exacerbated by the fact that large trees like oaks tend to create canopies that block the sunlight; this in turn starves the saplings of crucial light and makes it nearly impossible for the saplings to grow (Despain and Romme 695; McGinnis 38; “National Park Service: Wildland Fire in Yellowstone” par. 6; Wuerthner 91). However, not every forest works well using frequent controlled burns. Yellowstone National Park, for example, is entirely different and “marches to a different ecological drum than Yosemite and the oak forests of the East. In Yellowstone, it all burns to the ground, or it doesn’t burn at all” (McGinnis 39)

Over one third of the Yellowstone forests burned to the ground in 1988; however, biologist Despain doesn’t blame the disaster on all those years of fire suppression (695). As Despain explains, “some say fire suppression has substituted fewer high-intensity fires for more frequent low-intensity fires. But that’s not the case in this part of the Rocky Mountains” (695). In the Yellowstone National Park, the lodge pole pine forests do not have the same undergrowth as the copious grasses located in other states (Despain and Romme 695; McGinnis 38; “National Park Service: Wildland Fire in Yellowstone” par. 6; Wuerthner 91). In addition, the wilderness does not burn effectively until the trees reach an advanced age – anywhere from 250 to 300 years old (Despain and Romme 695; McGinnis 38; “National Park Service: Wildland Fire in Yellowstone” par. 6; Wuerthner 91).

When the lodge pole pine forests are young, “low-lying vegetation stays sparse, moist, and green, offering little fuel during the fire season. The crowns of the lodge pole pines also are well separated. Both conditions hinder the spread of fire” (Despain and Romme 695; McGinnis 38; “National Park Service: Wildland Fire in Yellowstone” par. 6; Wuerthner 91). What the biologists and scientists now understand as a result of the research done after the fires of 1988 is that “Yellowstone was meant to burn infrequently, and it does” (Despain and Romme 695; McGinnis 38; “National Park Service: Wildland Fire in Yellowstone” par. 6; Wuerthner 91).

What the analysis of the policy – in this case, the suppression of any and all fires that erupted in the park prior to the disaster scale of 1988 – has revealed therefore is that the efforts of the policy makers and agency stakeholders will affect the balance of the ecosystem up until a fire arrives that cannot be controlled or suppressed. The forests themselves contain failsafe mechanism to keep themselves renewable. “Small new trees remain green and moist through the fire season and are not very flammable. Over the next few hundred years, the young forest will go through a series of changes that will again transform it into a forest ready to regenerate through fire” (Despain and Romme 695; McGinnis 38; “National Park Service: Wildland Fire in Yellowstone” par. 6; Wuerthner 91).

Despite this fact, biologists and scientists caution that “bringing fire back will probably never restore the landscapes of the West to their original states” (Despain and Romme 695; McGinnis 38; “National Park Service: Wildland Fire in Yellowstone” par. 6; Wuerthner 91). A number of areas may quickly return to their natural fire models. However, in other regions, it “may take hundreds or thousands of years to recover from the ecological impact of fire suppression” (Despain and Romme 695; McGinnis 38; “National Park Service: Wildland Fire in Yellowstone” par. 6; Wuerthner 91). Other regions may experience a state of “perpetual limbo” because of the encroachment of human populations.

These regions will be too heavily populated for a natural fire to burn without limits; therefore, in these regions, the “conflict between people and fire will continue. Civilization and the fire suppression that follows it will continue to alter forests and grasslands. But lightning will always strike and strong winds will blow” (Despain and Romme 695; McGinnis 38; “National Park Service: Wildland Fire in Yellowstone” par. 6; Wuerthner 91). Wildfires therefore are much like flood plains or fault lines between tectonic plates. As McGinnis explains, “sooner or later, something will happen. It’s just a matter of when” (38).

Description of the Fires of 1988

The fires that ignited in the Yellowstone National Park in the summer of 1988 “burned through nearly half of the United States’ first and most popular national park” (Schab 382). The weather conditions in 1988 converged to create what would become a completely unforeseen drought. Despite the fact that in April and May of 1988, the Greater Yellowstone Area saw a much greater than average rainfall in the region, by the time June, the Yellowstone National Park and its surrounding area was undergoing an intense and prolonged drought (“National Park Service: Wildland Fire in Yellowstone” par. 5).

The existing park policy of fire suppression ensured that that “forest fuels grew progressively drier” (“National Park Service: Wildland Fire in Yellowstone” par. 5). In addition, the park was besieged by a number of summer thunderstorms in the early part of the summer that generated lightning strikes but no rain (“National Park Service: Wildland Fire in Yellowstone” par. 5).

The first fire began on June 14 in the Stone Creek area (“National Park Service: Wildland Fire in Yellowstone” par. 3). This fire was followed by the Shoshone Fire, the Fan Fire, and the Red Fire on June 23, 25 and 30th respectively. This was not altogether uncommon, according to the National Park Service, since multiple fires typically start and then burn themselves during the so-called “fire season” (par. 3). For example, in June 1988, “11 of the 20 early season fires went out by themselves, and the rest were being monitored in accordance with the existing fire management plan” (“National Park Service: Wildland Fire in Yellowstone” par. 3).

What the fire suppression policy did not account for however was the fact that the summer of 1988 was the driest on record. By July 21, the park managers began to suppress all the fires; however, the fires and their attendant clouds of smoke “ had become noticeable to park visitors and to the national media” (“National Park Service: Wildland Fire in Yellowstone” par. 3). Shortly thereafter, the fires ravaged across nearly 100,000 acres. The most challenging day was August 20, 1988, when “tremendous winds pushed fire across more than 150,000 acres. Throughout August and early September, some park roads and facilities were closed to the public, and residents of nearby towns outside the park feared for their property and their lives” (“National Park Service: Wildland Fire in Yellowstone” par. 3).

During this period, the existing fire suppression policy came under intense scrutiny by the media as the fire generated national and international attention. In Congress, policy makers found themselves in heated discussions with special interest groups, business interests, home owners, wildlife specialists and environmentalists. The commons was under threat, and its various stakeholders converged on the federal government to demand changes in the law. The media added fuel to the flames by spinning the angle of the story as a massive flaw in the fire suppression policy governing the wildfires, paying special attention to the fact that the fires were and had been a natural aspect of the park’s ecosystem for centuries.

A fire of this magnitude was inevitable. When Yellowstone became the country’s first national park in 1872, fires, either natural or man-made, were put out as soon as possible. This prevented the park from cleaning itself out. With the cycle of regeneration suppressed, new plant life was stifled, and Yellowstone became clotted with aging, lodge pole pine (“Acres Afire” 24)

Then in 1972 a new “natural regulation” policy was put into effect. The idea behind it was that Yellowstone is a living, breathing ecosystem, and that fire is a necessity. The park service adopted a stance that all naturally occurring fires would be controlled so as not to damage campgrounds, visitor facilities and property outside the park, but not extinguished.

This worked for a time. For the last nine years, an average of 3,600 acres of the park burned each year. Then came the “Big Dry”. For the first time in 118 years, there has been no significant rainfall in Yellowstone. The fires started in June and have been gaining ground ever since. Other than dryness, the fire fighter’s major enemy is wind. Gusts up to 60 mph have sent flames on a rampage through tinder-dry woods.

The raging has not been confined to the fire. There is a blazing argument between local citizens and conservationists over whether the park service has handled the fires correctly. Understandably, residents and ranchers who live close to the park are nervous and do not share the services’ enthusiasm for the “let it burn” policy. Officials of the Church Universal and Triumphant, a religious group owning 15,000 acres adjacent to the park, have threatened to sue if the fire damages their property. Meanwhile church members have been chanting to keep the fire line from their property.

Others do not question the need for fire, but wonder why the service insists on letting nature be in command. They suggest controlled burns when the weather is agreeable and manpower available. Yet most conservationists agree with the park service’s policy. Ecologists and biologists are eager to observe Yellowstone after the fire, as there will be a greater number and diversity of plants and animals. In fact, only half of the vegetation in the burnt areas will die as a result of these fires. Contrary to what Hollywood portrays (animals fleeing for their lives before a wall of roaring flames and so on), Yellowstone’s animals are taking the fires in stride. They simply move aside and look for somewhere else to feed or bed down (“Acres Afire” 24).

“At first the fires did not have much effect on the park’s tourists. The number of visitors dipped by only 7% in July. But as the smokey weeks rolled by, numbers dropped off sharply. During the second half of August, park officials estimate that Yellowstone will have had 50% fewer visitors compared with last year. While fire fighters have managed to keep the flames away from major attractions such as Old Faithful (the geyser), six camp grounds remain closed and smoke has reduced visibility. Park officials are encouraging people to come, and have dropped the $10 entry fee. Wyoming officials insist that the fire is causing little or no inconvenience to travellers and have bought radio advertising in Salt Lake City, Omaha and Des Moines to tell their story.

The fires themselves were eventually doused by the arrival of the fall. According to the National Park Service, “by September 11, 1988, the first snows of autumn had dampened the fires as the nation’s largest fire-fighting effort could not” (“National Park Service: Wildland Fire in Yellowstone” par. 11). With the change in season, the “imminent danger to life and property was over, and firefighters were gradually sent home, although the last of the smoldering flames were not extinguished until November” (“National Park Service: Wildland Fire in Yellowstone” par. 11). At the final tally, a total of 248 fires had been produced in the greater Yellowstone area; of these, 50 were located in the Yellowstone National Park proper (“National Park Service: Wildland Fire in Yellowstone” par. 11).

The media has busily spread stories that all of the fires were allowed to burn indiscriminately. However, according to the National Park Service, “only 31 of the total were; 28 of these began inside the park. In the end, 7 major fires were responsible for more than 95% of the burned acreage” (par. 11). However, the long term effect of the fires of 1988 proved to alter the values and policies of environmental law significantly. One of the main issues that the media brought to light from a policy perspective was the fact that the fire suppression policies had cost the American taxpayers over 120 million (“National Park Service: Wildland Fire in Yellowstone” par. 11).

The policy makers and the United States Congress launched a campaign to “restore damaged facilities and to study the long-term ecological, social, and economic effects of the Yellowstone fires” (“National Park Service: Wildland Fire in Yellowstone” par. 11). Laws also came under scrutiny during this period. The damage to the lodge pole pines in the park proved to be a catalyst for new growth, as “seed densities ranged from 50,000 to 1 million per acre, beginning a new cycle of forest growth under the blackened canopy above” (“National Park Service: Wildland Fire in Yellowstone” par. 11).

Although unprecedented in the 125-year history of the park, the scientists reviewing the effects of the 1988 fires reminded us that fires of such scale burned elsewhere in similar ecosystems during this century, and earlier in the landscape’s history (“National Park Service: Wildland Fire in Yellowstone” par. 1). Across the United States, national parks and forest service agencies jettisoned their existing fire policies and restructured their fire management programs, overseen by the environmental assessment plans compiled by “independent scientists” (“National Park Service: Wildland Fire in Yellowstone” par. 11).

In November of 1988, the Greater Yellowstone Coordinating Committee put together a group of scientists representing a wide variety of ecological and environmental authorities to consider the short and long term costs of the 1988 fires. In particular, the group was charged with the task of evaluating the environmental impacts and repercussions of the 1988 fires as it pertained to “watersheds, fisheries, wildlife, vegetation, soils, and biological diversity” (Agee et al. 679).

The scientists were also asked to evaluate the need for intercessions from the environmental agencies, such as “reseeding…to prevent erosion, reforestation, and supplementary feeding of ungulates” (Agee et al. 679). Finally, the group was asked to provide proposals for short term and long term study programs, and to “consider alternatives and options for future fire management plans” (Agee et al. 679). By 1992, the Yellowstone National Park had cemented a wild land fire management program, one that reflected stauncher rules under which “naturally occurring fires may be allowed to burn” (“National Park Service: Wildland Fire in Yellowstone” par. 11).


As the first designated national park in the United States, the Yellowstone National Park stands as the nexus point of a number of competing policy interests. The role of environmental law as advocate and protectorate of a sustainable relationship with the natural world is regularly confounded by deeply conflicting “ideas about nature and our relationship to it, as well as an ethic, calling to mind our responsibility for our world” (Clark 1).

Few other national parks generate as much tourism, as much revenue, as much publicity, and as much environmental debate as the Yellowstone National Park and its surrounding ecosystem. This section of the paper will discuss some of the policy shifts that occurred before, during and after the Yellowstone Fires of 1988. This section will also discuss the current policies that govern the park’s ecosystem. It also highlights some of the areas in which environmental law functions, particularly in the cases of disasters such as the Yellowstone Fires of 1988.

What Happens to the Law and Policy when Values Change?

Yellowstone National Park represents one of the “world’s most celebrated commons” (Daniels 532). The status of national park was made official in 1872; however, the Yellowstone area was used by a wide range of communities including Native Americans and early Europeans who hunted in the park and its neighboring regions and lived and worked there as fur trappers and traders (Daniels 532). The initial values that established the Greater Yellowstone Area as a national park were firmly entrenched in business interests.

A small group of financiers and businessmen from Montana toured the Greater Yellowstone Area in 1870; this expedition is now known as the Washburn Langford Doane Expedition. Among the group was Nathaniel Pitt Langford, who would become the first superintendent of the Yellowstone National Park in 1872 and operated in that post until 1877 (Daniels 533). The members of the Washburn Langford Doane Expedition glimpsed “an opportunity to bring the area the railroad, tourists, and an infusion of money” into the area (Daniels 533). As evidenced by the fires of Yellowstone in 1988, these founding values continue to influence the use of the park.

The founding values that created Yellowstone, made it into a national, multi-use park and established its presence as one of the world’s foremost commons did not agree with the values that had governed the area in previous centuries. As Daniels notes, the establishment of Yellowstone marked the first of many value shifts that would affect the laws that governed the park and its management (533). “While visitors today may see Yellowstone…as nature untamed, for centuries before Yellowstone became a park, it was a place where people hunted and even lived” (Daniels 533). Prior to the business interests that created the park, the area did not fall under any legal jurisdiction and its purpose and conventional uses was decidedly practical. As Daniels explains:

The coming of the park closed an era for Native Americans and fur trappers. Yet, these established uses did not fade away the moment that President Grant signed the bill that made Yellowstone a national park. Even though the federal government was much more powerful than these traditional users, rooting them out took decades (533).

The Role of Environmental Law in Disasters

Similar to justice delivered in the environmental sphere, “disaster justice is about the failure of law – specifically, the failure of law to provide vulnerable people with the protection and benefits they need to lead safe and productive lives” (Verchick 128). One of the most important roles that environmental law plays is the protection and maintenance of what Verchick deems the “natural infrastructures” of the United States (61).

The Yellowstone Fires of 1988 revealed a key misalignment in the interpretation and application of environmental law as a protector and advocate for the natural infrastructures that maintain both economic and social resources for generations as yet unborn, a misalignment that has unfortunately persisted since that disaster. Particularly in the aforementioned example of the old growth timber that functions as a natural and literal fire wall against wildfires, it is the role of environmental law to protect these fundamental elements that nature has put in place to protect and sustain the ecosystem.

Disaster Preparedness

In June of 2006, the Department of Homeland Security conducted an “unprecedented analysis of state and urban emergency plans around the country”, including analyses of evacuation plans and leadership systems in place to prepare for a disaster similar to the Yellowstone fires of 1988 (Ripley 3). The Department of Homeland Security’s analysis came to the conclusion that most of the disaster preparedness plans currently in place in the United States “cannot be characterized as fully adequate, feasible, or acceptable” (Ripley 3). However, according to Ripley, it is not mere question of “bureaucrats who are unprepared for calamity” (3). In fact, as Ripley notes, “regular people are even less likely to plan ahead” (3).

A Time magazine poll concluded that “half of those surveyed said they had personally experienced a natural disaster or public emergency. But only 16 percent said they were very well prepared for the next one” (Ripley 3). The lack of disaster preparedness evidenced by this poll has ramifications for policy makers and disaster law professionals alike. At the time of the Yellowstone National Park’s creation, the population of the United States was a fraction of what it is in this century – many of the areas that were remote at the time of the park’s creation are now filled with livestock, homes and people, people who do not believe that they “live in a high-risk area” (Ripley 3). On the contrary, as Ripley explains:

91% of Americans live in places at a moderate-to-high risk of earthquakes, volcanoes, tornadoes, wildfires, hurricanes, flooding, high-wind damage or terrorism, according to an estimate calculated for TIME by the Hazards and Vulnerability Research Institute at the University of South Carolina (3)

The federal system currently at work in the United States does not work well as a means of disaster preparedness, largely because the system of government in the United States was designed to maintain the autonomy of the individual states. Massive disasters that crisscross state lines – such as the Yellowstone fires of 1988 – tend to tax the system since there is no real centralized government. As George Foresman, the former United States Under Secretary for Preparedness admits, “everything we’re trying to do goes counter to how the Founding Fathers designed the system” (Ripley 5) The lack of centralized government in the United States means that no one force exists to compel the individual states to amend their policies in a way that recognizes the need for a comprehensive disaster law built on stable and cooperative policy.

However, as it currently stands – and this was equally apparent during the Yellowstone fires of 1988 the federal government “cannot easily force states or companies to act. And when the feds try to demand changes anyway, state and local officials bristle at the interference” (Ripley 5)

Applicable Federal Laws

The agencies responsible for the Yellowstone National Park include the Greater Yellowstone Coordinating Committee, the Forest Service, the National Park Service and the Fish and Wildlife Services. The Greater Yellowstone Coordinating Committee is a group of representatives from the six public American forest and the two national parks that encompass the Greater Yellowstone Area (Agee et al. 679). A collection of federal laws governs these agencies.

The Forest Service operates within the confines of the Multiple Use Sustained Yield Act of 1960 (Clark 82). This federal law requires the agricultural secretary to cultivate and manage the “renewable surface resources of the national forests for multiple use and sustained yield of several products and service obtained there from” the major natural infrastructure holding of the federal government, including Yellowstone and Yosemite National Park (Clark 82).

In 1976, the National Forest Management Act confirmed the Multiple Use Sustained Yield Act of 1960 by clarifying that the overall goal of the Forest Service to facilitate multiple use for the government’s natural holdings (Clark 82). The law mandates “conservation of viable populations of all desirable and introduced vertebrate species through planning, use of interdisciplinary teams, interagency concurrence, public involvement, and resource production estimates” (Clark 82). Concurrence between agencies continues to be one of the main challenges to environmental law, particularly at the state and federal level.

The National Park Service Act of 1916 governs the National Park Service (Clark 82). The National Park Service Act mandates that the national parks be protected at the federal level, and the act specifically “calls for protecting and using the parks to benefit the American people, with equal emphasis on their enjoyment and protection” (Clark 82). One of the original advocates of the National Park Service Act, according to Clark, was the railroad companies (82).

Interestingly, the act was buoyed and lobbied by business interests as a key marketing necessity, since the maintenance of the beauty of the parks guaranteed that railway travelers and tourists would continue to use the service. A number of legal scholars, park historians and environmental law policy critics have pointed to the divisive and rival nature of the “two-part goal” of protection and enjoyment stipulated by the law.

During the Yellowstone Fires of 1988, for instance, the agencies continued to attempt to promote the park for the enjoyment of the American public, as was their mandate, and to some this goal trumped the equally important goal of the protection of the park (Agee et al. 678; Clark 82; Verchick 39). Observers have noted that these often mutually exclusive goals of park protection and enjoyment of the park, as mandated by the federal laws that govern the key agency stakeholders, “keeps the National Park Service divided between providing access for public use and protecting our natural heritage” (Clark 83).

The Reorganization Act, which was created in 1939, in turn created the Fish and Wildlife Service (Clark 82). The Reorganization Act governed this agency in 1988 during the fires and continues to do so in the present day. However, the Fish and Wildlife Service also answers to a number of other federal laws including the Endangered Species Act and the Emergency Planning and Community Right to Know Act. The main purpose and mandate of the Fish and Wildlife Service is to protect and conserve the wildlife populations with the Yellowstone National Park and ensure that their habitats remain viable for current and future generations. However, as Clark notes, “taken together these laws and many others form a complex mix of exploitation and protection formulas that federal officials must balance in their daily work” (83).

In essence, the environmental laws in place during and after the Yellowstone fires of 1988 lacked a certain cohesiveness and unity of vision (Agee et al. 678; Clark 82; Verchick 39). In addition, economic changes in the 1980s and since have had a diluting effect on the environmental law infrastructure – namely the manpower necessary to enforce these laws – as well as the political will to combat the depletion of natural resources (Verchick 61). As Verchick notes:

Even democracies with robust markets, like the United States, fail to use natural infrastructure in ways that are efficient, sustainable and fair. That’s because failures in markets cause many services provided by natural infrastructure to be discounted and degraded over time. Failures in governance – special interest politics and corruption – lead to misallocation in infrastructure investment, in terms of both artificial infrastructure and natural infrastructure (61).

Competing Interests and the Tragedy of the Commons

The Yellowstone fires of 1988 revealed a problem that continues to haunt environmental legal scholars and policy makers taxed with the management and maintenance of any large resource shared among a number of communities – what is most often referred to as the commons – that is, the difficulty that arises in sustaining the Yellowstone National Park for its myriad of uses and wide range of stakeholders.

In truth, the Yellowstone National Park houses a dizzying amount of competing interests and mutually exclusive mandates and all of their concomitant problems and issues, including, but certainly limited to, parkland conservation, wildlife conservation, natural gas and oil extraction, air quality, air pollution, conservation of water, water use, water pollution, fishing, grazing, public use and enjoyment, tourism, logging and the extraction and use of forest products. As Daniels notes, “the pursuit to build stable commons institutions systematically creates four important barriers to emerging values. First, we often design institutions to govern the commons with a narrow vision of why a common has value” (515). The value of the commons will therefore change according to the interests of those involved. “Commons institutions are intentionally myopic” (Daniels 515).

For example, the oil and gas producers will look at the Greater Yellowstone Area and see rich resources ripe for exploitation; ecologists and wildlife and fishery experts will view the rivers and oceans in the ecosystem in terms of their relationship to the habitat of the wildlife they are sworn to protect (Daniels 527). The jurisdictions responsible for the control and limitation of greenhouse gases view at the lush forests of the Yellowstone National Park “as greenhouse gas sinks” that must be preserved by any means necessary (Daniels 515). Similarly, wilderness promoters will view the remote landscapes such as Yellowstone as areas “where the earth and its community of life are untrammeled by man” (Daniels 527). Therefore, given the complexity of the opposing values, understanding “what a common is almost invariably results in tradeoffs” (Daniels 515).

Policy makers, legal professionals and agency stakeholders tend to view a multi-use common such as the Yellowstone National Park from the lens of their own interests; they also have a tendency, as Daniels notes, “to focus on one use of a commons at a time sets institutions on a path-dependent course at the outset” (537). In addition, these agency stakeholders will create a commons institution that resist change, namely because they want to commons to continue to provide for their needs indefinitely. However, large natural infrastructures do not ever stay the same. They change depending on a myriad of influences, including time, weather, and a host of other unforeseen factors.

Though the value system that creates this static view of commons resources is prevalent among agency stakeholders, it does not reflect any kind of engagement with the reality of the natural world. Invariably, this policy of trying to stop change leads to problems like the fires of 1988. The policy makers of 1988 sought to suppress the naturally occurring fires as a means of keeping the park from changing; however, the result transformed the park and the surrounding area irrevocably. As Daniels explains:

Stability breeds resistance to change by enhancing a shared worldview that favors and perpetuates the values the institution serves. In a dynamic world, stability is not only a virtue but also a vice. When we change the way we value the commons, stability transforms into rigidity. Those with a stake in incumbent institutions often invest and cooperate to maintain, and ideally expand, their grip on the commons. This public choice problem amplifies the costs of institutional change (527).

In addition, the multiple users and agency stakeholders involved in the management of the resource will typically develop mutually beneficial relationships with powerful political groups and lobbyists in order to cement and sustain their usage of the commons. The more influential the relationships, the more likely the usage of the commons will be sustained, often to the detriment of other stakeholders. As Daniels explains, “interest groups provide political constituencies and governments deliver political rewards. Rent-seeking, agency capture, and symbolic politics naturally follow, and disenfranchised stakeholders are often marginalized” (527).

In addition, powerful policy makers in corrupt relationships with agency stakeholders or interest groups can often use their power and influence to “physically alter the commons, making change more difficult” (Daniels 527). A well known example of this in the Yellowstone context is the impact of oil and gas exploration and logging on the park’s ecosystem. The logging of the Yellowstone forest can and have manifested “difficulties for alternative uses such as tourism, wildlife conservation, or preservation of old growth stands” (Daniels 527).

Where value shifts are concerned, sometimes the action of special interest groups will have long term ramifications for other users of the commons. As Daniels notes, “a logged forest will take a considerable amount of time and effort to restore, if restoration is possible at all; some old growth forests may not return for centuries…and some species within the forest may become extinct” (528).

After the Yellowstone fires of 1988 revealed the lack of synergy between state and federal agencies and the failure of the environmental laws in place in regards to park management, the member agencies of the Greater Yellowstone Coordinating Committee took it upon themselves to carry out some “federal state coordination activities” (Clark 41). The result was the so-called “Vision Exercise” tabled in 1990, two years after the fires (Clark 41).

Disaster Law

Disaster law and those lawyers working in the disaster law arena typically work with clients that are facing Federal Emergency Management Agency eligibility problems; these include utility companies, state governments, public institutions, municipal governments, and other groups such as schools (Stansky 8). At the time of the Yellowstone fires in 1988, the practice of disaster law was in its infancy. Since then, the need for trained lawyers in this field has grown by leaps and bounds.

According to Ernest Abbott, chair of the Homeland Security and Emergency

Management Committee of the American Bar Association’s Section of State and Local Government Law, a disaster lawyer in private practice, and an associate of the American Bar Association’s Special Committee on Disaster Response and Preparedness, disaster law is a currently a “micro niche practice” (Stansky 8). While natural disasters such as the Yellowstone fires of 1988 happen all the time, they rarely if ever happen in the same place and they typically involve a complex web of stakeholder relationships, both public and private. In the years since the Yellowstone fires of 1988, new entities such as the Department of Homeland Security have further complicated these relationships (Stansky 9). As Stansky notes, the field of disaster law since the Yellowstone fires of 1988 has grown to resemble:

A practice knowledgeable in state and federal laws and regulations and multistate compacts, and local police powers, that would be implemented before and during a major emergency. Some of the issues that these laws and regulations concern…which public agencies have which authorities, private sector and individual rights and responsibilities, the practice of quarantine, detention of goods at ports or borders, regulation of mass transit and air travel (9).

Disaster law and environmental law also requires a firm grounding in government relations and an understanding of private sector business interests as they relate to commons issues such as large scale disasters like the Yellowstone fires of 1988, which is something that might have helped the governing bodies responsible for the management of the Greater Yellowstone Area in 1988.

One may also note that since the Yellowstone fires of 1988, the number of significant national disasters in the United States has grown – as evidenced by the lingering impact of Hurricane Katrina – and as a result the need for a solid field of disaster law, especially as a partner of environmental law, has become more pressing. According to 2007 statistics brought together by the National Interagency Fire Center in the United States, both global warming and variable weather patterns have created the conditions that are “even riper for wild land fires” (Dress 38).

Also, heavily populated areas built close to the wild and unpredictable wilderness lands such as those found in Yellowstone and in the Greater Yellowstone Area tend to amass media attention whenever there is a wildfire, regardless of the benefits that fire may provide for the ecosystem (Dress 38; Gardner et al. 411; Romme et al. 1196) Ultimately, both disaster law and environmental law are charged with the long term preservation of the natural infrastructures of the country, while the former may place more emphasis on the immediate welfare of the human beings affected by the disaster, while the latter encompasses the whole environment, including wildlife, air and water quality, and the ecosystem at large.


While it is prudent to accept that a certain element of chance will always permeate the natural world and that this variable renders the practice of environmental law and disaster law a moving target for most legal professionals, this reality does not mean that environmental law and disaster law cannot actively and efficiently manage the multiple stakeholders involved in large commons natural resources and infrastructures such as the Yellowstone National Park.

The Yellowstone fires of 1988 revealed many of the holes in the environmental law template, and since then within the growing field of disaster law practice, more holes have opened up. However competing and seemingly mutually exclusive the interests of stakeholders in the Yellowstone National Park and the Greater Yellowstone Area may seem, as Verchick notes, “it is the law’s job to minimize…failures and make sure that natural resources are used justly and wisely” (61).

What the analysis found in this paper revealed is that where knowledge is deficient or under manipulation be special interests, environmental and disaster law specialists must partner with large commons resource managers to “recognize that it is possible to narrow the choice of purposes, to contract the range of ambiguity surrounding objectives, and to shrink the domain of ignorance” (Agee et al. 690). Many of the unknown aspects of the environment as it pertains to disasters can be minimized using simple communication between environmental and disaster legal scholars, ecologists, scientists, policy makers at both the federal and state levels, and the special business groups such as oil and gas interests and logging interests.

In addition, the value shift currently afoot in legal circles – particularly amongst disaster laws scholars – is the understanding and appreciation of the interconnectedness of the environment. The federal government policy of fire suppression that created the conditions for the 1988 conflagrations represented a value system that viewed the short term solution as preferable to the long term one, particularly from an economic standpoint.

However, as the cost of the 1988 fires rose into the millions, it became clear that the value system needed to shift in order to embrace the reality that human action in the short term invariably has an impact on the environment – perhaps in 10 years, or 30 years – but eventually the full impact of narrow, imprudent thinking in the environmental sphere makes its presence felt. This remains one of the key value shifts that possess the power to transform environmental “uncertainties into probabilities” (Daniels 560). This value shift alone can facilitate the legal frameworks necessary to understand the environment as a synergistic entity as opposed to an isolated system. As Daniels explains:

Human presence in and around wilderness landscapes is inescapable, human intervention and manipulation will be necessary to preserve those processes. The questions that the next generation of natural area managers must address are not whether manipulations is desirable, but what kind of manipulation is acceptable? By what means? For what purposes? On what scale? And according to what social and political processes?

The next generation of environmental lawyers will also be increasingly faced with the challenges of developing a cohesive response to natural disasters and disaster law. As such, the new generation of environmental and disaster lawyers must revise current legal value systems into ideals that recognize the synergy of the environmental. These value systems in turn must then be developed into “management objectives” (Daniels 560).

The management objectives must inform the process of law and the policy of environmental stewardship concurrently, toward the realization of the protection of the natural infrastructure of the United States, and legal professionals as well as policy makers must work together to “develop and install monitoring procedures adequate to measure progress toward those objectives” (Daniels 560). In addition, legal professionals and policy makers “must actively support research programs that reduce the state of uncertainty regarding the natural phenomena they are charged with managing” (Daniels 560). Interagency communication, one that recognizes the complexity of commons resources such as the Yellowstone National Park and Greater Yellowstone Area, is the clarion call of all disaster law specialists.

Works Cited

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Clark, Susan G. Ensuring Greater Yellowstone’s Future: Choices for Leaders and Citizens. New Haven, Connecticut: Yale University Press, 2008. Print.

Daniels, Brigham. “Emerging Commons and Tragic Institutions.” Environmental Law 37. 3 (2007): 515-565. Academic OneFile. Web.

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Ripley, Amanda. “The Next Big One: The Human – The American – Reluctance To Plan For Disaster: Floods, Tornadoes, Hurricanes, Wildfires, Earthquakes, Why We Don’t Prepare.” Time 20 August 2006: 1-6. Print.

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