Judge: Forest Service failed to examine firefighting chemical that is deadly to fish.
Oregon, USA — A federal judge in Montana on Friday threatened to jail the U.S. secretary of agriculture for “circumventing” the law in order to continue using a firefighting chemical that is deadly to fish.
Agriculture Secretary Mark Rey could be forced to wear a monitoring bracelet until the U.S. Forest Service complies with an order to evaluate the chemical, ammonium phosphate. Rey oversees the Forest Service, which uses about 15 million gallons of the firefighting chemical annually. It is chiefly dropped from aircraft over large areas.
Judge Donald Molloy, based in Missoula, concluded Friday that the Forest Service is in contempt of his 2005 order. That ruling found the Forest Service violated federal law because it never consulted wildlife agencies to learn the consequences of spraying ammonium phosphate across the landscape.
A sanction against Rey could be imposed after a Feb. 26 hearing, at which the government gets a chance to prove it is not in contempt. The judge may also ban further use of the chemical nationwide.
It is rare for a judge to propose jailing a federal official in a civil case, much less a presidential appointee and Cabinet secretary.
“It is an extraordinary case of noncompliance we’re dealing with,” said Andy Stahl, executive director of Forest Service Employees for Environmental Ethics, the Oregon group that brought the case in 2003.
“We’re not out to punish Mark Rey,” he said. “The purpose is to find some means of holding his feet to the fire so that he and his agency comply with the laws Congress enacted.” Molloy cited a long list of evidence that the government engaged in “duplicitous” maneuvers to ignore his deadlines.
“The record in this case shows the Forest Service had no real intention to comply with the law or the court’s orders,” he wrote.
After several delays and extensions of time, Molloy set an Aug. 17, 2007, deadline to comply. A further extension was granted, and in September the National Marine Fisheries Service reported that continued use of the retardant is likely to jeopardize the survival of 26 species of salmon and other fish.
But the Forest Service still has not completed its work with the Fish and Wildlife Service, which oversees freshwater fish and mammals.
“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,” said Forest Service spokesman Joe Walsh.
Stahl’s group doesn’t want to ban ammonium phosphate, but merely impose rules for its use. The state’s firefighting agency, the California Department of Forestry and Fire Protection, uses two kinds of fire retardant depending on conditions, because ammonium phosphate is known to be worrisome, said Mike Padilla, Cal Fire aviation chief. The Forest Service uses only ammonium phosphate.