Judge rules against Forest Service
Federal judge orders government to do new study on effects of fire retardants
Published: July 29. 2010 4:00AM PST
WASHINGTON — The U.S. Forest Service and two other federal agencies must perform an in-depth study on how fire retardant dumps could damage endangered species, a federal judge in Montana ruled, in a decision released on Wednesday.
The Oregon environmental group that sought the action praised U.S. District Court Judge Donald Molloy’s decision, which blasted the Forest Service, U.S. Fish and Wildlife Service, and National Marine Fisheries Service for failing to examine how dropping tons of toxic fire retardant could affect sensitive plants and animals. He gave the agencies until the end of 2011 to perform a new study.
The Forest Service said it will obey the judge’s decision, but added that it’s too soon to say whether or not it will make any changes in firefighting strategy.
Retardant drops have killed thousands of fish in Central Oregon — in 2002, a type of retardant that included a version of cyanide was dropped into Fall River, killing 22,000 fish.
The Oregon Department of Fish and Wildlife Service has said an accidental retardant drop in 2002 on Street Creek, near Lake Billy Chinook, killed a small number of endangered bull trout.
No endangered species were killed in Fall River, which contained mostly brown trout, red band trout, brook trout and white fish. But the Eugene-based Forest Service Employees for Environmental Ethics, which brought the lawsuit against the Forest Service, has cited the incident as an example of the potential damage that an errant load of retardant can wreak.
The decision doesn’t stop the Forest Service from dropping fire retardant while it completes the study.
Forest Service spokeswoman Jennifer Jones said the agency will “fully comply” with the judge’s order. She said, though, that retardant is a useful tool for protecting communities and wild areas from wildfire.
“Protecting fish and wildlife habitat are our priorities and millions of acres are at risk of uncharacteristically large and severe wildfires that can cause long-term damage to wildlife habitat and human communities,” Jones said. “Retardant is an effective tool in fire suppression both in the wild lands and near communities.”
Molloy blasted the Forest Service for failing to follow federal environmental rules, and had even sharper words for the Fish and Wildlife Service, which didn’t recommend any firm restrictions on use of fire retardant in its analysis.
“As the Fish and Wildlife Service has candidly admitted, the agency was unwilling to impose the restrictions necessary to protect listed species in the biological opinion because it placed a higher priority on fire suppression than on the avoidance of jeopardy or destruction” of endangered species or habitat, Molloy wrote.
The Forest Service reasoned that because it has a policy to generally avoid dropping retardant within 300 feet of lakes and streams, it was unlikely to kill endangered species. But Molloy pointed out that the agency still allows retardant dumps near sensitive species if the incident commander deemed it necessary.
“By failing to impose any binding restrictions on the use of fire retardant where it may affect listed species or critical habitat, the (Endangered Species Act) agencies have failed to alleviate the risk of jeopardy to listed species,” Molloy wrote.
Forest Service Employees for Environmental Ethics Executive Director Andy Stahl said he wants to force the federal government to be smarter about how it fights wildfires.
“We’re asking the Forest Service to really change a 100-year war on fire in which any collateral damage is acceptable,” Stahl said. “The goal of this lawsuit is to make these environmental laws work so we get safer and more effective firefighting.”
Molloy ordered the agency to perform an analysis of retardant impacts in 2005, but it took more than two years for the Forest Service to complete the report and finalize the decision covering the use of retardant. The delay had caused the judge to threaten to hold Mark Rey, then the U.S. Department of Agriculture undersecretary who oversaw the Forest Service, in contempt of court.
In his decision this week, the judge sided with the Forest Service on just one issue: that the agency shouldn’t be required to perform a new environmental study of all of its firefighting activities. Molloy wrote that the request was an overreach, based on tenuous logic.
Stahl, who was a persistent critic of the Forest Service and firefighting policy under President George W. Bush, said President Barack Obama has essentially continued Bush’s fire strategy.
“I don’t think there is any interest in the Obama administration in these topics whatsoever,” Stahl said.
Keith Chu can be reached at 202-662-7456 or at email@example.com.