Forest Service Employees v. U.S. Forest Service, No. CV 03-165-M-DWM.

• Decision Date: 30 September 2005
• Docket Number: No. CV 03-165-M-DWM.
• Citation: 397 F.Supp.2d 1241
• Parties: FOREST SERVICE EMPLOYEES FOR ENVIRONMENTAL ETHICS, Plaintiff, v. UNITED STATES FOREST SERVICE, an agency of the United States Department of Agriculture, Defendant.
• Court: U.S. District Court — District of Montana

397 F.Supp.2d 1241

FOREST SERVICE EMPLOYEES FOR ENVIRONMENTAL ETHICS, Plaintiff, v. UNITED STATES FOREST SERVICE, an agency of the United States Department of Agriculture, Defendant.

No. CV 03-165-M-DWM.

United States District Court, D. Montana. Missoula Division.

September 30, 2005.

COPYRIGHT MATERIAL OMITTED

Timothy A. Bechtold, Rossbach Hart Bechtold, Missoula, MT, Charles M. Tebbutt, Western Environmental Law Center, Eugene, OR, Marc D. Fink, Western Environmental Law Center, Boise, ID, for Plaintiff.

William W. Mercer, Mark Steger Smith, Office of the U.S. Attorney, Billings, MT, Thomas L. Sansonetti, U.S. Department of Justice — E. N.R.D. General Litigation, Washington, DC, for Defendant.

ORDER

MOLLOY, Chief Judge.

I. Statement of Facts

A. Background on wildfire and the FS use of chemical fire retardant

Fighting wildfires is a prominent and expensive land management task: in 2001 the United States Forest Service (USFS) was appropriated $611 million for firefighter preparedness and $320 million to fight wildfires. In the 2003 fire season a total of 3.960,842 acres of federal, tribal, state and private lands were burned in over 63,269 wildfires. Following severe fire seasons between 1909 and 1934, the USFS began an aggressive policy to suppress all fires and to prevent human caused fires. From 1994-2001, the USFS fought an average of over 10,000 wildfires each year on national forests. The USFS considers chemical fire retardant an important tool in the USFS firefighting toolbox.

Though the USFS claims it uses chemical fire retardant in only a small percentage of wildfires, it uses an average of 15 million gallons of fire retardant annually, though as many as 40 million gallons have been used in some years. In FY 2003, 23,860,607 gallons of retardant were pumped into USFS, Bureau of Land Management (BLM), and state air tanker bases for a total of 18,725 aircraft loads. Def's. State. of Uncontroverted Facts, ¶ 36 (June 25, 2004). The vast majority of retardant is dumped by the USFS out of airplanes and helicopters. Each gallon of retardant is 85% water and 15% chemical fire retardant.

The USFS admits that chemical fire retardant can have adverse environmental effects, may be harmful to aquatic environments and can "adversely affect" other "forest resources," and that fire retardant has accidentally landed in streams resulting in fish kills. Def's. State. of Genuine Issues, ¶ 5 (July 30, 2004). During the period from August 2001 through December 2002, chemical fire retardant was dropped in water inhabited by endangered species eight times, six of which occurred on national forest lands. Decl. of Alice Forbes ¶ ¶ 38-39 (June 25, 2004).

The USFS admits that fire retardant has been accidentally dropped on firefighters, but states that investigations of such incidents revealed no health risks. Def's. State. of Genuine Issues, ¶ 7.

In the 1990's the USFS, U.S. Department of Agriculture (USDA), and the Department of Interior (DOI) began issuing various guidelines and policies concerning fire management. These guidelines and policies provide guidance on how to respond to fires once they occur and what tools are available to respond to wildfire. The USFS cites the following, among others, as the national guidelines and policies relating to fire management:

• Forest Service Manual 5100: provides overall guidance in fire management of the USFS. Chapter 60, section 51632 of the manual provides that the objective is to have available and utilize adequate types and quantities of qualified fire chemical products to accomplish fire management activities safely, efficiently and effectively.

• The USFS Guidelines for Aerial Delivery of Retardants or Foam Near Waterways: sets forth the operational standard that retardant is not to be dropped within 300 feet of water; it provides guidance for pilots to accomplish the objective and allows for emergency exceptions.

• Fireline Handbook: used by on-the-ground firefighters to guide suppression operations; it contains a section on the use of chemical fire retardant.

• Incident Response Pocket Guide: pocket sized reference guide containing guidelines and policies for fire suppression including the "Principles of Fire Retardant Application."

• Interagency Standards for Fire and Fire Aviation Operations 2004: Chapter 12 of this guide provides overall direction and guidance for retardant application, use and safety for firefighting personnel.

Def's. State. of Uncontroverted Facts, ¶ 29.

The USFS recognizes that these guidelines and policies are promulgated at the national level, but maintains that the guidelines for the manner in which fires are or will be managed and suppressed in a particular national forest are set forth in that forest's Land and Resource Management Plan (LRMP). The USFS also maintains that the ultimate decision to use chemical fire retardant is not a national decision, but a local decision made by the incident commander in charge of a particular fire. Plaintiff cites other evidence that the decision to allow the use of chemical fire retardant in fighting fires is a national decision. On March 28, 2000, the FS issued a Stop Work Order halting the use of chemical fire retardant containing sodium ferrocyanide on 46 of 75 interagency aerial retardant firefighting bases; this order was rescinded on April 20, 2000. Def's. Statement of Uncontroverted Facts, ¶¶ 38-40. The USFS also contracts for the purchase of fire retardant through National Retardant Contracts. Id. at ¶ 30. However, according to the USFS, the National Retardant Contracts do not require the agency to purchase fire retardant. Second Decl. of Alice Forbes ¶ 10 (July 30, 2004).

In April of 2000, the USFS developed the Guidelines for Aerial Delivery of Retardants or Foam Near Waterways (Guidelines), which prohibit application of chemical fire retardant within 300 feet of waterways.

B. The USFS's Attempts at Endangered Species Act Consultation

After the Guidelines were issued, the USFS asked the United States Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) to accept the interim use of the Guidelines through the 2000 fire season pending further study and consultation under Section 7 of the Endangered Species Act (ESA). The FWS and NMFS did so, but emphasized the "interim nature" of the Guidelines and the need for programmatic review of the environmental effects as soon as practicable. Pl's. Statement of Uncontroverted Facts, ¶ 13-14; Def's. Statement of Genuine Issues, ¶ 13-14. In October 2000, the USFS completed a Biological Assessment/Evaluation of the Guidelines, determining that their use until December 2001 "may affect but is not likely to adversely effect" threatened or endangered species. In response to a request from the USFS, the FWS and NMFS concurred that if the Guidelines were followed, adverse effects to threatened or endangered aquatic species were not likely, but also reminded the USFS of its earlier commitment to programmatic consultation and that the FWS/NMFS concurrence on the use of the Guidelines would cease on December 31, 2002. Pl's Statement of Uncontroverted Facts, ¶ 19; Def's Statement of Genuine Issues, ¶ 19. In 2003, the USFS began preparing a new Biological Assessment pursuant to Section 7 of the ESA. A USFS biologist indicated that the assessment would have reached a "likely to adversely affect" determination, but the USFS decided that there would not be formal consultation, despite the contrary advice of the USFS legal counsel. Pl's Statement of Uncontroverted Facts, ¶¶ 24, 31-32; Def's. Statement of Genuine Issues, ¶ 24, 31-32. The USFS has engaged in "emergency consultation" with the FWS in response to chemical fire retardant dumps in waterways inhabited by listed species and the spills were determined to have a "May affect, likely to adversely affect" impact on listed species.

C. The USFS's Attempts at NEPA Compliance

The USFS previously recognized the need to conduct NEPA analysis concerning the use of chemical fire retardant on national forests. The USFS admits that the DOI firefighting agencies suggested that the USFS should determine whether to conduct NEPA analysis on the Guidelines and that the USFS attempted to do some environmental analysis at the national programmatic level. Def's. State. of Uncontroverted Facts, ¶ 41. In 2000, the USFS in cooperation with the Council on Environmental Quality (CEQ), agreed to prepare an interim Environmental Assessment (EA) to address the new information concerning fire retardant and the interim Guidelines. The USFS also began preparing an Environmental Impact Statement (EIS) for the broader spectrum of retardants/foams etc; NEPA compliance was to be "a phased process beginning with this nationwide interim EA" and ending with future NEPA studies for any later issues regarding fire retardant use in the long term. Pl's. State. of Uncontroverted Facts, ¶¶ 15-16; Def's. State. of Genuine Issues, ¶¶ 15-16. In May of 2001, the "retardant EA" was completed and ready for signature; the EA recommended continued use of the Guidelines. However, the USFS did not sign the EA. The USFS says this was because it determined that "there is no proposal for major federal action related to the national action as to the use of chemical fire retardants." Def's. State. of Uncontroverted Facts, ¶ 42. Plaintiff cites USFS documents indicating that the decision not to sign the EA was made because there was no public scoping or involvement in the EA, and that the USFS recognized that even if the EA was not signed, the USFS still needed to prepare the fire retardant EIS or EA. Pl's. State. of Uncontroverted Facts, ¶¶ 21-22. The USFS recognizes these statements, but attributes them to the "opinions of staff" in an "internal briefing paper" that "does not represent the agency's position." Def's. State. of Genuine Issues, ¶¶ 21-22. The USFS has still not signed the initial fire retardant EA, has not...