Courts – A federal jurist challenges the agency on the use of retardant in wildfires
Oregon, USA — A federal judge in Montana said Friday he’s prepared to hold the U.S. Forest Service in contempt of court for a “duplicitous” strategy of skirting the law so it can keep fighting wildfires with retardant that kills fish.
Judge Donald Molloy set a Feb. 26 hearing in U.S. District Court in Missoula to give the Forest Service a chance to convince him that Agriculture Undersecretary Mark Rey should not be put in jail and that fire retardant drops from aircraft should not be stopped until the agency properly considers the danger to the environment.
“The Forest Service, throughout these proceedings, evidenced a strategy of circumventing, rather than complying with,” the National Environmental Policy Act and the Endangered Species Act, he wrote. “The apparent pattern suggests a strategy of looking for ways to avoid the law’s mandate as opposed to looking for a means of complying with the law.”
Potential sanctions include sending Rey to jail, putting him under house arrest and banning the Forest Service from using any fire retardants but water in air tankers, Molloy wrote. In an earlier order, Molloy wrote that Rey, who oversees the Forest Service, should appear in person.
“We take very seriously our obligations to perform the environmental analysis required by law, and have made every effort to comply with the court’s rulings in this case,” Forest Service spokesman Joe Walsh said. “We expect to demonstrate the government’s good faith in further proceedings before the court.”
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 harm from using ammonium phosphate, a fertilizer that kills fish, as the primary ingredient for retardant.
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.
Andy Stahl, executive director of the Eugene-based group, said the government’s use of fire retardant is like the use of pesticides, polluting watersheds and killing fish and wildlife. “The Forest Service view is, ‘Whatever the harm to the environment, it’s irrelevant, because we are fighting a war, and fire must be worse than anything we are doing to fight a fire,’ ” Stahl said. “That’s not true. Most of our Western forests need fire to stay healthy. It’s been the overzealous war on fire that’s been the underlying cause of our forest health crisis.”