Court Action Endangers Fire Threatened Communities
Rulings Suggest A Forest Service Fire Retardant Is Illegal
If Mr. Stahl is successful in his lawsuits, he will handcuff the ability
of the Forest Service to protect rural communities from fire.
Stahl was a major player in closing millions of acres to effective forest management because of the spotted owl. He played a significant role in the loss of thousands of forestry jobs since 1989.
A major effort of the Bush Administration Forest Service has been to bring back healthy forests, protect rural communities from fire and reduce forest fires while fighting huge fires in several of the worst fire seasons on record.
The lawsuit by Andy Stahl and his FSEEE seeks to prevent the use of a proven method of fighting fires. He is seeking to stop the use of a particular fire retardant formula used to help control wildfires.
Through this ruling, Stahl will bring tens of thousands of families who live in forested and vegetated areas and rural America into increased danger from fire by limiting the ability of the Forest Service to fight fires effectively.
According to what we believe are reliable sources, Mr. Stahl and FSEEE are also currently seeking to undermine the confidence and resolve of fire fighters by carrying out an inquisition regarding the contracts and relationships between fire fighters and the Forest Service.
The judge in this case, appointed by President Bill Clinton in 1995, appears to be supportive of the effort by Mr. Stahl and his organization to limit the ability of the Forest Service to fight fires.
One of our members wrote us the following note some years ago:
“The Environmentalists have become like a new religion, a new paganism, that worships trees and sacrifices people.”
This case seems to make that point.
Chuck Cushman
Executive Director
American Land Rights Association
(360) 687-3087
ccushman@pacifier.com
Below are reprinted two articles about the controversy.
What You Can Do:
-----1. Write a very short letter to the editor of your local newspaper expressing concern about the concern about the ability of the Forest Service to effectively fight fires.
-----2. Call at least three friends and urge them to write letters to the editor as soon as they can.
Time is urgent. Please send your letter to the editor quickly.
Please also forward this message as widely as possible.
Background Newspaper -Articles:
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Bush official could go to jail for failure to submit review
By Jeff Barnard
Associated Press writer
August 21, 2006
GRANTS PASS, Ore.- A federal judge in Montana has ordered the Bush administration’s top forestry official to explain why he should not be held in contempt of court for the U.S. Forest Service’s failure to analyze the environmental impacts of dropping fish-killing fire retardant on wildfires.
If found in contempt, Agriculture Undersecretary Mark Rey, who oversees the Forest Service, could possibly go to jail until the service complies with the court order to do the environmental review.
Noting that Rey had blocked implementation of an earlier review, U.S. District Judge Donald W. Molloy in Missoula, Mont., ordered Rey to appear in his court Oct. 15 unless the Forest Service completes the analysis before then-an outcome Molloy deemed unlikely.
“It has been six years since Forest Service staff completed a ‘retardant EA’ – only to have higher-up officials embargo it,” Molloy wrote in an order issued late Friday. “The time I am giving is likely to prove insufficient if: 1) the agency is simply unwilling to follow the law; or, 2) it is prevented from following the law by its political masters, as was the case when Under Secretary of Agriculture Mark Rey ordered that formal (Endangered Species Act) consultation regarding fire retardant not to occur.”
Forest Service Employees for Environmental group based in Eugene, filed the lawsuit in 2003, a year after more than 20,000 fish were killed when retardant was dropped in Fall Creek in Central Oregon.
Andy Stahl, executive director of the environmental watchdog group, said they asked the judge specifically to hold Rey, a former timber industry lobbyist who has been reshaping policies to make it easier to log on national forests, responsible.
“I’m sure this order has got the government’s attention,” He said. “I think they have to take a hard look at their 100-year war against wildfire and explore alternatives that will allow us to live with fire, and that is what they don’t want us to do.”
Stahl said the service appears to be immune legally from fines, but not from jail time. “You can throw them in jail to coerce future good behavior,” he said. “That’s what the judge is talking about here.”
The original order
In 2005, Molloy ruled that the service violated the Endangered Species Act and the National Environmental Policy Act when it failed to publicly analyze the potential environmental harm of using ammonium phosphate, a fertilizer that kills fish, as the primary ingredient in fire retardant dropped on wildfires.
In February 2006, the judge gave the service until Aug. 8 of this year to comply, noting that if they needed more time, they were to contact the plaintiffs well in advance, and not come to him just before the deadline.
The request for an extension was filed Aug. 8.
“It seems as if the government is playing a not too funny game, betting that the court will be forced to grant the additional time and hoping the irony of the timing will be overlooked,” the judge wrote. “The Forest Service cannot disregard the orders regarding the Endangered Species Act, and it must meet its legal obligations under NEPA and as ordered by this court.”
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Wildfire retardant drops break law, judge says
Los Angeles Business Journal -- Oct 26, 2005
GRANTS PASS, Ore. -- The U.S. Forest Service violated environmental laws, including the Endangered Species Act, when it failed to go through a public process to consider the dangers of fire retardant drops that have killed thousands of fish, a judge has ruled.
The Forest Service decision not to comply with the National Environmental Policy Act on the dangers of using toxic fire retardants "appears to be a political decision," District Judge Donald W. Molloy in Missoula, Mont., wrote in the decision released Tuesday.
Judge Molloy ordered the Forest Service to prepare a formal environmental analysis of the effects of fire retardant on the
environment and consult with the U.S. Fish and Wildlife Service on the potential harm to endangered fish, but did not bar the Forest Service from using fire retardant until it complied.
Andy Stahl, executive director of Forest Service Employees for Environmental Ethics, which brought the lawsuit, said the group did not ask the judge to bar the use of toxic fire retardants. Instead, the organization based in Eugene hopes the ruling will lead the Forest Service to stop fighting wildfire like a war and start managing it as a natural part of the ecosystem.
"For 100 years the Forest Service has fought fire rather than manage it," said Stahl. "It's a wake-up call to say, 'Hey, you've got to look at the big picture.' ... There are alternatives and we need to get smarter about fire."
Stahl compared the impact of the ruling to those protecting habitat for the northern spotted owl, which forced the Forest Service to drastically reduce logging to protect habitat for hundreds of species, not just the owl.
Forest Service spokeswoman Heidi Valetkevitch said the agency was reviewing the ruling, but as a matter of policy did not comment on legal matters.
The judge did not elaborate on the political decision comment, but environmentalists and Democrats have been complaining that Bush administration political goals of repealing environmental laws are motivating Forest Service decisions. This month the Forest Service withdrew permits for 1,500 activities on national forests around the country, such as cutting Christmas trees, to comply with a court order in a lawsuit over public participation in a timber sale. The judge in that case told the Forest Service it had gone much too far.
Stahl's organization filed the lawsuit in 2003, a year after 1,000 to 2,000 pounds of toxic retardant were dropped in Fall Creek in Central Oregon, killing more than 20,000 fish in six miles of the stream. Unknown numbers of fish died as the poison flowed into the Deschutes River.
Judge Molloy found that the Forest Service uses an average of 15 million gallons of retardant a year, and in some years up to 40 million gallons, as it supplies planes under contract around the country to fight fire. From August 2001 through December 2002, retardant was dropped in water inhabited by endangered species eight times, six of them on national forest lands.
About 40 percent of the retardant contains a toxic chemical to prevent corrosion in the tanks of retardant planes that turns into a lethal cyanide compound when it is exposed to water and sunlight, said Stahl.
Judge Molloy rejected the Forest Service argument that using fire retardant was not a major federal action, but a series of smaller actions by fire commanders with no time to do a full environmental analysis.
"All evidence suggests that the USFS was told by other agencies to consult NEPA on fire retardant issues," the judge wrote. "The decision not to involve NEPA appears to be a political decision. The only reason the USFS has provided for not applying NEPA is that there was no proposal for a major federal action. This is not a reasonable conclusion."
Molloy also rejected the Forest Service argument for not consulting the U.S. Fish and Wildlife Service over the dangers to endangered fish.
The Forest Service had argued that determining the types of fire retardant to use, issuing guidelines for its use, nationwide fire
retardant contracts, and the longtime use of retardant were not "programmatic activities" requiring consultation, and there is no effect on endangered species until the retardant is actually dropped.
"The emergency exception is meant for unexpected exigencies," Molloy wrote. "The use of fire retardant by the USFS is not unexpected but guaranteed."
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