FOREST Serv. EMPLOYEES FOR Envtl. ETHICS v. UNITED States FOREST Serv.
| Decision Date | 27 July 2010 |
| Docket Number | No. CV-08-43-M-DWM.,CV-08-43-M-DWM. |
| Citation | 726 F.Supp.2d 1195 |
| Parties | FOREST SERVICE EMPLOYEES FOR ENVIRONMENTAL ETHICS, Plaintiff, v. UNITED STATES FOREST SERVICE, United States Fish & Wildlife Service, and National Marine Fisheries Service, Defendants. |
| Court | U.S. District Court — District of Montana |
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Tim Bechtold, Missoula, MT, for Plaintiffs.
Jared S. Pettinato, Mark Brown, Main Justice, Washington, D.C., for Defendants.
The Plaintiff in this case, Forest Service Employees for Environmental Ethics, seeks review under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706, of federal agency actions and the associated planning documents relating to the use of chemical fire retardant to fight wildfires on United States Forest Service lands. Plaintiff's Second Amended Complaint alleges claims under the National Environmental Policy Act (“NEPA”) (Count I) and the Endangered Species Act (“ESA”) (Counts II-IV). The planning documents challenged are the Forest Service's Environmental Assessment, Decision Notice, and Finding of No Significant Impact; and the Biological Opinions issued by the Fish and Wildlife Service and NOAA's National Marine Fisheries Service (“NOAA Fisheries”). 1
Plaintiff asks the Court to declare that the agencies have violated the relevant statutes and to set aside the challenged documents. Plaintiff seeks injunctive relief compelling the agencies to comply with the law, and also requests an award of reasonable fees, costs, and expenses, including attorney's fees. The case is now resolved on the parties' cross-motions for summary judgment for the reasons set forth below.
This legal dispute originated in a 2003 case in which Plaintiff sued the Forest Service, claiming that the agency should conduct a NEPA analysis and consult with the Fish and Wildlife Service pursuant to ESA § 7 regarding its use of chemical fire retardant. Forest Service Employees for Environmental Ethics v. United States Forest Service, 397 F.Supp.2d 1241 (D.Mont.2005) (the “2003 case”). Summary judgment was granted in favor of the Plaintiff on both the NEPA and ESA claims. In its discussion of the agency's failure to comply with NEPA, this Court concluded that “[i]t is probable that substantial questions are raised here as to the environmental impact of the annual dumping of millions of gallons of chemical fire retardant on national forests.” 397 F.Supp.2d at 1254. The Court ordered the Forest Service to comply with NEPA, leaving it to the agency to determine whether an environmental impact statement is necessary or an environmental assessment will suffice. In the ESA context, the Court rejected the Forest Service's argument that post-hoc, case-by-case consultation through the regulatory emergency consultation procedure is sufficient to satisfy the requirements of the ESA. The Court ordered the Forest Service to begin formal consultation with the Fish and Wildlife Service. Id. at 1257. The Court did not enjoin the continued use of chemical fire retardant.
The Forest Service did not diligently pursue compliance with the judgment. Unable to meet the Court's original deadline for NEPA compliance of August 8, 2007, the Forest Service sought and received an extension until October 10, 2007.
Forest Service Employees for Environmental Ethics v. United States Forest Service, 530 F.Supp.2d 1126, 1127 (D.Mont.2008). On October 10, 2007, the Forest Service issued an Environmental Assessment (USFS AR 337). 2 Id. at 1128. Plaintiff filed a motion for contempt on the same day, arguing the Forest Service had failed to meet the Court's deadline because it had not fully complied with NEPA. Id. The agency attempted to moot the contempt motion by hastily filing a Decision Notice and Finding of No Significant Impact on October 11, 2007 (USFS AR 326). Id. The Forest Service then sought to justify its untimely compliance by placing the blame on the ESA agencies, claiming it could not complete its analysis and issue a decision notice until formal ESA consultation was complete. Id. at 1129-1130.
The Court was not persuaded by the Forest Service's argument, in large part because the record showed that the ESA agencies had not completed consultation due to the Forest Service's incomplete, insincere, and untimely efforts to comply with the law and the Court's orders. 530 F.Supp.2d at 1131-1134. 3 The Court also expressed doubt about the sufficiency of the Forest Service's Environmental Assessment, noting that but for the contrary insistence of the ESA agencies, the Forest Service would have conducted an assessment of only the narrow question of its continued use of the 2000 Guidelines, 4 rather than the proper Court-ordered analysis of the use of retardant generally. Id. at 1134-1135.
A contempt hearing was set for February 26, 2008. Eight days before the hearing, on February 18, 2008, the Forest Service issued an amended Decision Notice and Finding of No Significant Impact accepting the reasonable and prudent alternatives established by the ESA agencies. USFS AR 341. The Court held the contempt hearing as scheduled and issued an order afterward in which it denied the motion for contempt on the ground that the contempt power may be used only to coerce compliance with the law and court orders, and may not be used for punitive reasons. Doc. No. 157, CV 03-165-M-DWM. Finding that the Forest Service had complied with the judgment by performing a NEPA analysis and consulting with the ESA agencies, the Court dismissed the 2003 case on March 12, 2008. Doc. No. 160, CV 03-165-M-DWM. Three weeks later, on April 2, 2008, Plaintiffs filed this action challenging the NEPA and ESA documents that resulted from the Forest Service's compliance.
The Forest Service has used chemical retardants to fight wildfires on federal lands since at least 1955. USFS AR 337 at 9. Today, fire retardant solutions are 85 percent water, with the remainder consisting mostly of inorganic fertilizer along with thickeners and corrosion inhibitors. 5 Id. at 10. Retardant is used primarily in the western part of the country; it is not commonly used in the Northeast or Midwest, and is used periodically in the Southeast. Id. at 8.
The Forest Service consulted under the ESA with both the Fish and Wildlife Service and NOAA Fisheries. USFS AR 339 at 1; USFS AR 1075 at 1. The ESA agencies issued programmatic biological opinions, defining the action area as all National Forest System lands (totaling 192 million acres) together with a buffer area surrounding those lands. USFS AR 339 at 10-11; USFS AR 1075 at 17. According to the Fish and Wildlife Service, “[t]he size of this buffer is dependant upon the species in question and the likelihood of said species being exposed to fire retardant when applied on [National Forest System] lands.” USFS AR 339 at 11. NOAA Fisheries defined the action area “broadly to encompass lands and waters of the United States with particular emphasis on [Forest Service] lands and adjacent properties.” USFS AR 1075 at 17. The ESA agencies assumed that any listed species within the action area could potentially be affected by the use of fire retardant, resulting in a significant number of listed species included in the analyses: 27 species for NOAA Fisheries and 387 species for the Fish and Wildlife Service. USFS AR 1075 at 18-19; USFS AR 339 at 11-20.
NOAA Fisheries issued its first Biological Opinion on October 9, 2007. USFS AR 338. The agency issued an amended Biological Opinion in June of 2008 to correct typographical errors in the original. USFS AR 827. The agency amended its opinion again to include an analysis for the recently-listed Oregon Coast coho salmon, and issued the currently operative Biological Opinion on July 25, 2008. USFS AR at 1075. The Biological Opinion concludes that the Forest Service's use of fire retardant is likely to jeopardize the continued existence of all 27 listed species examined by NOAA Fisheries, and likely to destroy or adversely modify critical habitat for 23 of those species. Id. at 140.
NOAA Fisheries went on to identify a reasonable and prudent alternative that “must be implemented in its entirety” to avoid jeopardy to the 27 listed species and prevent destruction or adverse modification of their habitat. USFS AR 1075 at 141. The reasonable and prudent alternative contains the following provisions:
1. The Forest Service must evaluate the toxicity of two retardant formulations that have not yet been studied, and must similarly evaluate any new formulations, and report the results to NOAA Fisheries within two years.
2. The Forest Service must perform toxicological studies on all currently approved long-term fire retardants to evaluate acute and sub-lethal impacts on fish. The Forest Service must work with NOAA Fisheries to develop a research plan within one year.
3. The Forest Service must develop guidance for on-site assessment of waterways in which retardant is dropped.
4. The Forest Service must implement a policy requiring personnel to report to NOAA Fisheries on all drops in waterways, including information on the amount of retardant dropped, the area affected, whether the drop was accidental or intentional, the expected direct and indirect impacts, and the results of field evaluation of the affected waterway.
5. The Forest Service must provide NOAA Fisheries with a biannual summary of the cumulative impacts of the Forest Service's continued use of fire retardant.
There is no incidental take statement in the NOAA Fisheries Biological Opinion. The agency explained that uncertainty over where and to what extent retardant will be used made it impossible to supply an...
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