Molloy orders review of U.S. Forest Service's use of aerial fire retardants

Siding with an environmental watchdog group, a Missoula judge this week ordered the U.S. Forest Service to take a hard look at its use of toxic aerial fire retardants and their impact on fish and wildlife habitats.

By TRISTAN SCOTT of the Missoulian Link

In a 79-page decision filed Tuesday, U.S. District Judge Donald Molloy ruled the Forest Service violated the federal National Environmental Policy Act when it determined the chemical slurry has only insignificant environmental effects.

Pointing to government studies that show fire retardant dropped into creeks and on rare plants threatens the survival of endangered species and their habitat, Molloy said the Forest Service's current assessment is inadequate and ordered the agency to prepare a rigorous Environmental Impact Statement.

Ammonium-based retardants are toxic to fish and other aquatic organisms, and promote the spread of flammable invasive weeds.

The Forest Service Employees for Environmental Ethics, an Oregon-based nonprofit group, filed suit more than two years ago in U.S. District Court in Missoula. The lawsuit names the Forest Service, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service, and accuses the three agencies of violating NEPA, the Endangered Species Act and other federal laws.
Molloy ordered the Forest Service to comply with the federal laws by Dec. 31, 2011, threatening contempt sanctions if the agency fails to do so.

"The Federal Defendants are advised that failure to comply with this deadline may subject them to sanctions, including contempt proceedings, and could conceivably result in enjoining the continued use of aerially-applied fire retardant until the law enacted by Congress is complied with," Molloy wrote. "The issue requires immediate attention."

Molloy did not prohibit the use of fire retardant before that deadline, and a Forest Service official said retardant airdrops would continue under guidelines currently in place to protect fish and wildlife habitat.

Retardant airdrops are prohibited within 300 feet of waterways unless people, property, infrastructure and critical natural resources are threatened.

Jennifer Jones, a spokeswoman for the Forest Service, said agency officials are currently reviewing the ruling, and will work with the Fish and Wildlife Service and the National Marine Fisheries Service to "comply fully" with Molloy's order.

"We strongly agree with the National Environmental Policy Act, and protecting fish and wildlife habitat remains one of our top priorities," Jones said. "Millions of acres of national forest are at risk of uncharacteristically large and severe wildfires that can cause long-term damage to fish and wildlife habitat as well as humans, and retardant is a useful tool in fire suppression both in the wildlands and near communities."

Jones said it was too early to say what the agency's next steps would be or whether it would appeal the decision.

Molloy also ruled the U.S. Fish and Wildlife Service and National Marine Fisheries Service each violated the Endangered Species Act - FWS when it failed to consider retardant's effects on critical habitat for scores of species, and both agencies when they failed to specify the amount of "incidental take," or plants and animals killed, that would be permitted from fire retardant use.

The lawsuit is part of the FSEEE's campaign to reform the Forest Service's wildland firefighting mission. The campaign includes banning retardant airdrops nationwide unless people or homes are threatened, focusing on fire prevention around communities, and allowing more remote wildfires to burn as a natural part of the ecosystem.

Andy Stahl, FSEEE's executive director, said more plant and animal species have been jeopardized by aerially dropped retardant than any other government action in history. Stahl said by not specifying the number of species that can be destroyed by retardant use, the Forest Service "set the allowance at infinity."

"The Forest Service needs to come up with retardant policies that address how, when and where they are going to use retardant, and in a way that fully protects the water, the fish and the rare plants," Stahl said. "One sensible thing to do would be to use water to fight fires instead of toxic retardant. What a wonderful idea."

Stahl compared the effects of ammonium-rich retardant to that of fertilizers used by farmers on their fields.

"Imagine if a farmer had a 3,000-gallon truckload of nitrogen fertilizer slurry and dumped it in the creek. Think what it would do to the fish. Any farmer who did that would be in jail in a heartbeat. Yet that's exactly what the Forest Service does when it fights fires, and there are no consequences at all."

FSEEE won an earlier retardant-related lawsuit against the Forest Service when Molloy ruled the agency had violated federal law by failing to properly review the environmental impact of retardants on national forests. That lawsuit - which was filed in 2003, a year after a retardant airdrop killed 20,000 fish in an Oregon stream - was dismissed in February 2008 when the Forest Service complied with Molloy's order to complete an environmental assessment of aerial retardants.
The most recent lawsuit challenged the Forest Service's assessment, which found that the chemical slurry has no significant environmental impact. In their biological opinions, however, the Fish and Wildlife Service and National Marine Fisheries Service said retardants jeopardize 45 endangered or threatened fish, plant, insect, mussel and amphibian species and their critical habitats.

The Forest Service, which spends nearly 50 percent of its budget on fire suppression, has used an average of 26 million gallons of aerial retardant annually on federal lands since 2000, a figure projected to increase by more than 500,000 gallons a year at the current pace.

"This case is all about getting safe effective fire management restored to the Forest Service," Stahl said. "Judge Molloy is putting the government on notice that they had better not ask for any extensions and they better have started work yesterday."

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Source article: missoulian.com - Link
Reporter Tristan Scott can be reached at 523-5264 or at tscott@missoulian.com.