Forest Service nears contempt, and court threatens prison for Department of Agriculture official
UPDATED 02/27/2008... According to an AP story, Agriculture Undersecretary Mark Rey, who oversees the Forest Service, appeared before U.S. District Judge Donald W. Molloy, stating: "There is no way to put a positive face on the fact that we dropped the ball,"
Forest Service Employees for Environmental Ethics v. U.S. Forest Service, 2008 WL 110602 (D.Mont., Jan. 11, 2008)(Judge Molloy)(agency failure to meet deadlines deemed deliberate, triggering evidentiary contempt hearing.)
The Forest Service uses an average of 15 million gallons of fire retardant each year, and considers chemical fire retardant an important firefighting tool. However, in October 2003, Plaintiffs filed against the Forest Service challenging these practices, and in 2005, 2006, and 2007, U.S. District Court Judge Molloy issued orders requiring the Forest Service to comply with the National Environmental Policy Act, and to begin formal consultations as required by section 7 of ESA. Plaintiffs alleged that deadlines in the court orders were missed, and initiated contempt proceedings against the Forest Service.
Photo of USFS fire retardant drop from www.whitehouse.gov (with further caption explaining that "On average, it costs the Forest Service $4,000 per drop of fire retardant, or slurry, to slow the advance of fire.")
EXCERPTS OF RULING:
“The Forest Service’s position, that if it did not comply with NEPA it cannot be held in contempt because of circumstances beyond its control, is duplicitous at best. A straight reading of the record here indicates that the Forest Service had no intention to comply with the Court’s orders, or, at the very least – considering its lackluster participation in the consultation process – simply did not care enough about its regulatory and legal obligations to engage the process in a manner that meaningfully contributed to it.”
“The record supports the conclusion that this course of conduct was deliberate. The record provides clear and convincing evidence supporting the conclusion that the Forest Service did not engage in the processes the law and the Court’s orders required. The record is bereft of any meaningful effort to meet the deadlines, or to even complete the processes the regulations mandate. At best, the documents show the Forest Service’s disregard for its legal and regulatory obligations and for this Court’s orders. On the record before the Court, any contrary conclusion is unwarranted.”
(In addition, the Court noted it was considering: incarcerating Undersecretary of Agriculture Mark Rey in a correctional facility, or placing him under house arrest, until the United States Forest Service has met its legal and regulatory obligations and complied with the Court’s Orders. Moreover, the Court is considering enjoining the use of all aerial fire retardants, except water, in all fifty (50) United States.”)
While Judge Molloy’s frustration may be understandable based on the federal agency’s missed deadlines, the evidence regarding the effects of fire retardants on habitat and species appears to be mixed. See, e.g. USGS(“by the end of the growing season, species richness did not differ between treated and control plots”) and USDA(“fire retardant chemicals and high temperature environments can degrade the strength properties of wood”).
- The Missoulian (Jan. 12, 2008), Molloy Orders Feds to Explain Fire Retardant Policy
- Forest Service Employees for Environmental Ethics, www.fseee.org