USA — A federal judge on Friday warned the Bush administration’s top forestry official he could go to jail for contempt of court in a case challenging the use of fire retardant by the U.S. Forest Service to fight wildfires.
U.S. District Judge Donald W. Molloy in Missoula, Mont., issued the warning in a written order canceling a contempt hearing for Agriculture Undersecretary Mark Rey that had been scheduled for Monday. The judge said he needed time to read 200 pages of material filed at the last minute by the Forest Service.
“If on review I find there is noncompliance, I will reschedule the contempt hearing and Secretary Rey will be required to appear and show cause why he should not be held in contempt and jailed until the law and the court’s orders have been complied with,” Molloy wrote.
The judge gave the Forest Service 10 days to produce the environmental analysis the agency did on fire retardant six years ago, to evaluate the “legitimacy” of the analysis.
Rey said the Frost Service was committed to complying with the judge’s orders and he stood ready to appear at any future contempt hearing set by the judge.
“If he wants us to be there we will be there,” Rey said.
In 2005, Molloy ruled that the Forest Service violated the Endangered Species Act and the National Environmental Policy Act when it failed to go through a public process to analyze the potential environmental harm from using ammonium phosphate, a fertilizer that kills fish, as the primary ingredient for retardant dropped on wildfires.
The ruling stemmed from a lawsuit brought by Forest Service Employees for Environmental Ethics after fire retardant dropped in Fall Creek in Central Oregon in 2002 killed 20,000 fish.
Ever since Molloy’s ruling, the Forest Service has been dragging its feet on producing a new environmental review.
Forest Service Employees for Environmental Ethics pressed to have Rey found in contempt, arguing the environmental assessment filed on the deadline Wednesday lacked a formal declaration of no significant impact.
On Thursday, Forest Service Chief Gail Kimbell signed a finding of no significant impact, despite the lack of a review by U.S. Fish and Wildlife Service on the potential harm to endangered species.
A NOAA Fisheries review found that with the Forest Service’s lax attention to fire retardant drops in streams, the program jeopardized the survival of 26 species of salmon and other anadramous species. However, if the Forest Service agrees to test the toxicity of various formulations of fire retardant and pay more attention to when it is dropped in streams, there should be no problem.
Jim Lecky, director of the office of protected resources for NOAA Fisheries, said they had found only a handful of cases where fire retardant drops harmed fish, some of which were serious and others minor.
Though there was no formal acceptance of these recommendations in the Forest Service environmental analysis, Rey said they would be followed.
Andy Stahl, director of Forest Service Employees for Environmental Ethics, said they expected the latest fire retardant program would be declared illegal just as the old one was.
“The real question is whether we can compel the Forest Service to change its 100-year old war on fire,” said Stahl. “That is what this is really all about.”