Judge orders federal government to re-evaluate environmental harm of fire retardant drops

Judge orders tougher look at fire retardant drops

GRANTS PASS, Ore. — A federal judge Wednesday ordered the U.S. Forest Service to take a tougher look at the possibility that routinely dropping toxic fire retardant on wildfires from airplanes will kill endangered fish and plants.

U.S. District Judge Donald W. Molloy in Missoula, Mont., ruled that the current environmental assessment is inadequate in light of federal biologists’ findings that fire retardant that lands in creeks and on rare plants jeopardize the survival of endangered species and their habitat.

Molloy did not restrict the use of fire retardant this summer, but in a sternly written order gave the Forest Service until the end of 2011 to do a tougher environmental impact statement. He warned the agency could be found in contempt for failing to meet the deadline and refused to hear further arguments on the issue.

He also sent environmental analyses in support of the Forest Service assessment, known as biological opinions, back to the U.S. Fish and Wildlife Service and the National Marine Fisheries Service.

The judge wrote that they violated the Endangered Species Act by failing to put any real limits on firefighters from calling in retardant drops, despite finding that the mix of water and fertilizer could poison fish and their food and kill rare plants.

Andy Stahl of Forest Service Employees for Environmental Ethics, which brought the lawsuit, said half the 20 million gallons of fire retardant dropped by the Forest Service in 2008 was dropped in California, where it has become a public relations display for television cameras that is rarely effective because it is used in windy conditions that cause it to be widely dispersed.

“If a farmer took a 3,000-gallon truckload of liquefied fertilizer and dumped it in a creek, that farmer would be in jail in a heartbeat,” Stahl said. “But when the Forest Service does it, everybody looks the other way because it is a war on fire.”

Millions of dollars go to private contractors to dump fire retardant, Stahl added. “So there is developed a fire industrial complex between the government and these contractors that keeps the money flowing. And it’s led to a quintupling of Forest Service firefighting expenses in the last 10 years.”

The judge cited an e-mail from a Fish and Wildlife Service official to conclude the agency’s findings were arbitrary and capricious. The e-mail said the agency could not restrict the use of fire retardant because it might be blamed for the loss of a home or someone’s life.

“This determination is not scientific, it is a political decision-making by the Fish and Wildlife Service,” Molloy wrote.

Noting that only 14 of the 128,000 retardant drops over a period of eight years had killed protected fish or plants, Molloy said it was still necessary to avoid harming protected species.

The judge also found Fish and Wildlife and the fisheries service violated the Endangered Species Act by failing to include an “incidental take permit” in the biological opinion that would allow killing some endangered species. The agencies had argued they would consider permits on a case-by-case basis.

Molloy rejected arguments from the conservation group that challenged the Forest Service’s entire approach to fighting wildfire as harmful to the environment.

The case stretches back to 2003, when the Forest Service Employees for Environmental Ethics originally challenged the Forest Service’s use of chemical fire retardants without properly considering the harm to the environment. Molloy ordered the Forest Service to look at the issue more closely, and in 2007 threatened the Bush administration’s top forest official with jail for failing to meet the deadline.

After the Forest Service issued an environmental assessment in 2008, Molloy dismissed the lawsuit. But Forest Service Employees for Environmental Ethics filed again three weeks later claiming the document was inadequate.

Representatives for the fisheries service, which is a unit of the National Oceanic and Atmospheric Association, and the Fish and Wildlife Service said they had not seen the ruling and could not comment. The Forest Service did not immediately respond to an e-mail for comment.