Wildfire Lawsuite In Missula Montana

[SamsonFCDES]

I know this should have went in the wildfire area, but nobody seems to use that part of the forum much. I wanted more people to see this thread.

Has anybody nationaly been following this? I have not seen anything on Firehouse yet, so maybe it has not made the rounds of the National sene yet.

There is some major battles being fought here in Montana over the entire wildland fire fighting approach.

Here are some cut and pasts from a MT newsletter I get.

High Cost Of Fighting Wildfires Questioned (Billings Gazette)
By Allison Farrell
HELENA - After the state's most expensive fire season ever, lawmakers are
questioning how the state spends public money fighting wildfires and how
much money it spends protecting private homes tucked into the forests.
The Legislative Finance Committee on Friday asked Legislative Fiscal Analyst
Clayton Schenk to find out if an audit of state fire spending practices is
possible and how much it would cost. Schenk said he would report to the
committee at its December meeting.
Chief among state concerns is the "exponentially increasing" cost of
protecting private homes that border burning wildlands. While many rural
properties bordering forests are assessed an annual fire protection fee, the
amount the property owners pay toward their total fire bill is "minimal,"
said Bud Clinch, director of the state Department of Natural Resources and
Conservation.
"That amount of money is so minimal, it never comes close to covering the
entire cost," Clinch said. "The rest of the state of Montana picks up the
bill."
The first 20 acres of a property in a designated "fire protection district"
is assessed $30 a year, with each additional acre costing property owners 19
cents a year. All told, this tax contributes about $2 million a year to the
state's fire fighting budget.
The state's total bill for this year's fires is expected to total $27
million.
Years ago, the only structures on the borders of forests were cabins, Clinch
said. Now, trophy homes and subdivisions are crowding into the trees,
forcing all taxpayers to subsidize their fire protection costs.
Protecting the homes lining the O'Brien Creek drainage south of Missoula and
in other border areas cost the state a lot of money this past fire season,
Clinch told lawmakers. An "exorbitant" number of helicopters and fire
retardant foam were needed to protect homes from the burning woods
surrounding them.
While lawmakers want to look into how state money is diverted to protect
private homes, that's not all they want to examine.
Legislators want state auditors to investigate the state's practice of
initially attacking fires, find out how fires that cross jurisdictions are
paid for and look into various contract and service costs.
"It seems that this firefighting is escalating," said Senate Minority Leader
Jon Tester, D-Big Sandy. "Where's the money going? Who's receiving it and
how effective are the techniques that are being used to fight fires?"
This proposed audit isn't meant to pick apart the fire receipts, but to
examine the overarching policies that guide state spending, said Terry
Johnson, a principal fiscal analyst.
The state Natural Resources Department has developed its own spending
policies based on best practices, Clinch said, since lawmakers have never
set any fire spending policies for the department. That all may change, he
added.
Rep. Dave Lewis, R-Helena, said he's heard disturbing reports that federal
firefighting crews have, in some cases, turned down help from state crews.
House Minority Whip Monica Lindeen, D-Huntley, questioned the need to post
National Guard crews on forest fires after she said she saw them "playing
cards and sleeping" while on duty this year.
Clinch said he welcomes any audits and said the department will follow anypolicy guidelines the state sets.
"I'm well aware there's an incredible amount of money spent here," Clinch
said. "I'm not claiming it's perfect."
^^^^^^^^^^^^^^^^^^^^^^^^^^
Group to sue over firefighting[NL]By SHERRY DEVLIN of the Missoulian
Forest Service should study environmental, social effects, employees'
association says

Forest Service Employees for Environmental Ethics will file suit against the
U.S. Forest Service this week, demanding that the agency formally and
publicly evaluate the environmental and social effects of wildland
firefighting."Too many firefighters die each year in a fruitless and
self-defeating war against fire," said Andy Stahl, executive director of the
Oregon-based group of 12,000 former and current Forest Service employees and
agency watchdogs.


The first-ever lawsuit challenging the Forest Service's firefighting mission
and practices, the complaint will be filed Tuesday in U.S. District Court in
Missoula - because, Stahl said, "Missoula is the nerve center of a huge fire
industrial complex."

"The Forest Service has never, not once in its history, weighed the pros and
cons of firefighting," said Marc Fink, the Western Environmental Law Center
attorney representing FSEE in the lawsuit.

And yet, firefighters die every year, "trying to fight an act of nature,"
Stahl said.

Twenty-six people have died in firefighting-related incidents so far this
year; more than 900 wildland firefighters have died since 1910, the year the
federal government declared war on wildfire.

Stahl said FSEE's board of directors decided to expand its mission to
include "ending the war on fire" about two years ago, shortly after four
central Washington firefighters died in the Thirtymile fire.

An investigation eventually concluded that fire bosses broke all 10 of the
agency's standard safety rules, and their mistakes left firefighters cut off
from the only escape route out of a dead-end canyon.

All four of the firefighters died in their emergency fire shelters.

"We can't think of a more appropriate organization to come to the defense of
wildland firefighters or to hold our agency accountable for the unwarranted
risk it places on its employees," Stahl said. "Who better to question this
unjustified loss of life and squandering of almost a billion dollars a
year?"

Fighting wildfires is analogous to "putting fans on the coast of Florida to
blow the hurricanes away," Stahl said, "or trying to prevent earthquakes.

"Fighting wildfires doesn't work either. It just creates bigger fires later
and a forest health problem."
In the complaint to be filed with U.S. District Judge Don Molloy, FSEE
attorneys recount the history of wildland firefighting and the changes
brought to Western forests by fire suppression.

"As a result of the all-out effort to suppress fires, the annual acreage
consumed by wildfires in the lower 48 states dropped from 40 million to 50
million acres a year in the early 1930s to about 5 million acres in the
1970s," says the complaint.

"Decades of aggressive firefighting and fire suppression have drastically
changed the structure, characteristics and fire behavior of Western
forests," it continues. "Decades of aggressive firefighting on national
forests has resulted in thousands of injuries and hundreds of deaths for
employees of the Forest Service and other federal agencies."

At $1 billion a year, fighting fires is now one of the agency's most
expensive undertakings.

As its entree into a full-blown examination of firefighting practices and
impacts, the suit questions the use of chemical fire retardants in wildland
firefighting.

The Forest Service uses an average of 15 million gallons of fire retardant
each year, with up to 40 million gallons dropped in some years.

And while the chemicals are known to have adverse effects on water quality
and fish, the Forest Service has never prepared an environmental impact
statement on the use of chemical fire retardants, the lawsuit says. Nor has
the agency formally considered alternatives to that use.

The complaint lists several instances where fire retardants were blamed for
fish kills, including the Bircher fire in southwestern Colorado in July
2000.

The fertilizer in fire retardant can cause nitrate poisoning in animals, the
suit continues, and may cause impacts to human health.

By insisting that an EIS be prepared evaluating the pros and cons of
chemical fire retardants, the lawsuit would force the Forest Service to
rethink its entire firefighting program, Stahl said.

"It is time to evaluate which fires should be fought and which should not be
fought," he said. "It's time to focus on making communities and homes more
fire resistant. We know how to do that. We know how that works.

"And we should simply stop fighting particular classes of fires - for
instance, those that burn in the early spring or late fall, when conditions
are conducive to low-intensity fire."

Some wildfires should be suppressed, Stahl said. "But many fewer and with
much more sensitivity to the pros and cons of doing so."

Under the National Environmental Policy Act, federal agencies must write anEIS for "any proposed federal action that may significantly affect the
quality of the human environment."

And every EIS must include not only an analysis of the proposed action, but
of alternatives to that action and any "irreversible and irretrievable
commitment of resources which would be involved if implemented."

Certainly, Stahl said, wildland firefighting is a major federal action.
Certainly, he said, it significantly affects the environment.

"NEPA is the mechanism by which the Forest Service can engage with the
public in deciding how and where and when to fight fires," he said. "That's
what NEPA is supposed to do - to help federal agencies make better-informed
decisions, to insist on a balancing of the pros and cons."

FSEE's membership is wholeheartedly behind the lawsuit's call for scrutiny,
according to Stahl. Everyone involved, though, knows they are seeking "a
complete paradigm shift in the Forest Service."

"But it is possible," he said. "Everyone knows the system is broken and that
bureaucratic inertia favors the status quo."

"The first step is to shine a light and take the hard look that NEPA
requires," Stahl said. "Let's expose the benefits and the costs of
firefighting, including the human lives lost."



Firefighting policy defended
By SHERRY DEVLIN of the Missoulian
Interior assistant questions call for EIS

Fire is a necessary part of nature and "a good tool," an assistant secretary
of the Interior said Monday.

But the federal government is not going to stop fighting forest fires, said
Rebecca Watson, a Helena lawyer and Bush administration appointee.
Watson's comments came in response to a complaint to be filed Tuesday by
Forest Service Employees for Environmental Ethics challenging wildland
firefighting on social and environmental grounds.

"I think people in Montana might take issue with a lawsuit that says you
should not suppress fires," she said. "There are many Montanans living in
the wildland-urban interface who have an expectation that their federal
government, state government, county government will protect them from
wildfires."

Watson and top federal land managers, tribal leaders and state foresters
will meet in Arizona this week to review the 2003 fire season and discuss
firefighting costs, implementation of the National Fire Plan and PresidentBush's Healthy Forests Initiative.

"The whole point of the Healthy Forests Initiative and the National Fire
Plan is to get out of the fire suppression business by restoring the health
of the land and reducing the prevalence of catastrophic wildfires, so fire
can be used as a tool," said Watson, who oversees land and mineral
management at the Interior Department.

Federal land managers have changed their approach to firefighting in recent
years, she said, and actually do allow more acres to burn.

"There is now an understanding that fire is a part of nature, and that we
need to restore these landscapes so fire can be reintroduced," Watson said.
"We understand that fire is a good tool, but we also understand that there
are limitations."

On Tuesday, FSEEE will file suit in U.S. District Court in Missoula, hoping
to force the Forest Service to write an environmental impact statement
weighing the pros and cons of wildland firefighting - beginning with a look
at the use of chemical fire retardants.

Firefighters die every year "trying to fight an act of nature," without any
consideration being given to ending the federal government's "war on fire,"
said Andy Stahl, executive director of FSEEE, whose 12,000 members are
former and current Forest Service employees and agency watchdogs.

It is time, he said, for someone to hold the federal government accountable
"for the unwarranted risk it places on its employees."

On Monday, the complaint received the endorsement of the Western Fire
Ecology Center, which has also questioned the government's firefighting
policies in recent years.

"Firefighting is extremely hazardous duty that takes the lives of young
people," said Timothy Ingalsbee, the group's director. "It also damages the
environment; in some cases, the impacts of firefighting are more significant
than the effects of the fire itself."

"Neither the direct nor the indirect impacts of firefighting have ever been
analyzed," he said. "There is no accountability."

In Washington, D.C., Watson said all are in agreement that "the No. 1 goal
in fighting fires is to keep our firefighters safe."

"There is a constant message that a piece of property is not worth a humanlife," she said. "The culture of wildland firefighting is changing. Our goal
now is a different goal than it was 20 years ago. The goal now is forest
restoration."

At this week's meeting in Arizona, members of the Wildland Fire Leadership
Council will talk about ways to contain the cost of fighting the largest
wildfires, Watson said.

"We'll look at the recurring themes," she said. "What are the criticisms we
have received on costs? What are the problems? What are the solutions? What
are our next steps?"

The Bush administration is not waiting for Congress to enact healthy forests
legislation to begin work on the wildfire issue or thinning in the national
forests, Watson added.

Every year, she said, land managers are approving more fuel-reduction
projects and prescribed burns.

But FSEEE is wrong if its members are suggesting a radical reduction in the
number of fires that are actively suppressed, Watson said.

"Is fire appropriate everywhere? No," she said. "You do not want fire around
communities and important infrastructure. And you also have to address the
air-pollution impacts of fires. There are times when you don't want a fire."

Watson said she believes both fire and land managers have looked at the pros
and cons of firefighting over the years.

FSEEE's request for an environmental impact statement on firefighting is
simply unnecessary, she said.

"If we did an EIS, what would we be doing in the meantime?" Watson asked.
"Let these fires burn while we analyze whether suppression is acceptable? I
think that is questionable.

"I'm certainly not convinced that we need to have an EIS on whether we
suppress fires or not. I think the public tells us pretty clearly that they
want these fires put out."

I know that this is a distant issue to a lot of our Eastern folks, but it has the potential to turn a very sizeable part of the fire service right on its head. It will most likely have a very hard felt national impact.

There are many factors and ways to look at the issue. I know personaly that the way the Federal Gov fihts wildfire is not that efficient. They throw a LOT of money at it, but the problem just keeps on getting worse.

In 2002, wildfires burned 6.9 million acres at a cost of $1.6 billion dollars. That is more then 2 years of Fire Act Grant money!!!

I have worked wildfire with USFS, BLM, and Montana DNRC. They do a lot of good work. But, things are getting so warped out of hand that IMO something does need to change.

I look at my MT Vol department (30 guys covering 740 square miles) and how much wildfire we put out on a inmeasureable fraction of a Federal fire budget for just ONE 5 Man BLM egine crew and I just cant bring myself to stand up and defend the federal wildfire system.

That 1.6 billion would have gone SO much further in the hands of vol departments and more focused efforts.

Anyway, just thought I would bring it to you attention, I will keep posting any more articles I get.

[SamsonFCDES]

Here is the website of the USFS folks who are ticked off about the wildfire situation.

Forest Service Employees for Environmental Ethics

http://www.fseee.org/

Here is the complaint filed in Missoula.

http://www.fseee.org/projects/firecomplaint.htm

Marc D. Fink
Western Environmental Law Center
223 N. 6th St., Suite 300
Boise, Idaho 83702
Tel: (208) 342-2216
Fax: (208) 424-0000
[email protected]

Charles M. Tebbutt
Western Environmental Law Center
1216 Lincoln St.
Eugene, Oregon 97401
Tel: (541) 485-2471
Fax: (541) 485-2457
[email protected]

Timothy M. Bechtold
ROSSBACH BRENNAN PC
401 N. Washington Street
P.O. Box 8988 Hellgate Station
Missoula, Montana 59807
Tel: (406) 543-5156
Fax: (406) 728-8878
[email protected]


Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

MISSOULA DIVISION

FOREST SERVICE EMPLOYEES
FOR ENVIRONMENTAL ETHICS,

Plaintiff,

vs.

UNITED STATES FOREST SERVICE
an agency of the U.S. Department of Agriculture,

Defendant.

______________________________

COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF


INTRODUCTION

1. This is a civil action for declaratory and injunctive relief. Defendant United States Forest Service (hereafter "Forest Service") has failed to prepare an "environmental assessment" ("EA") or an "environmental impact statement" ("EIS") to assess and disclose the environmental impacts of its regular use of chemical fire retardant in fighting wildfires on national forests, in violation of the National Environmental Policy Act ("NEPA"). The Forest Service has also failed to consult with the expert agencies (the United States Fish and Wildlife Service and the National Marine Fisheries Service) to insure that its regular use of chemical fire retardant is not likely to jeopardize the continued existence of any threatened or endangered species, or result in the adverse modification of their habitat, in violation of the Endangered Species Act ("ESA").

2. Plaintiff seeks a declaratory judgment and injunctive relief to remedy the violations complained of herein. Plaintiff also seeks an award of costs, including attorney and expert witness fees. See Equal Access to Justice Act, 28 U.S.C. § 2412(d); and the ESA, 16 U.S.C. § 1540(g).

JURISDICTION

3. Jurisdiction is proper in this Court under 28 U.S.C. § 1331 and 28 U.S.C. § 1346, because this action involves the United States as a defendant, and it arises under the laws of the United States, including NEPA, 42 U.S.C. §§ 4321, et seq.; the ESA, 16 U.S.C. §§ 1531, et seq.; and the Administrative Procedure Act, ("APA"), 5 U.S.C. §§ 701, et seq. In addition, this Court has jurisdiction over Plaintiff's ESA claim pursuant to 16 U.S.C. § 1540(g). An actual, justiciable controversy exists between Plaintiff and Defendant. The requested relief is proper under 28 U.S.C. § 2202, 5 U.S.C. §§ 705 & 706, and 16 U.S.C. § 1540(g).

4. In compliance with 16 U.S.C. § 1540(g)(2), on May 5, 2003, Plaintiff gave notice of the ESA violations specified in this complaint and of its intent to file suit to the Forest Service, along with Secretary of the Interior Gale Norton, Secretary of Commerce Don Evans, and the Attorney General of the United States. A copy of the letter is attached hereto as Exhibit 1. Sixty days have passed since the notice was served, and the violations complained of in the notice letter are continuing at this time. The Forest Service remains in violation of the ESA.

VENUE

5. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(e). Defendant Forest Service has its headquarters for Region 1, the Northern Region, in this District. The Forest Service regularly uses chemical fire retardant to fight wildfires on national forests within this District. The chemical retardants used by wildland firefighting agencies are tested and approved by the United States Department of Agriculture's Missoula Technology and Development Center, located in this District. The Forest Service also has a Fire Sciences Lab and Smokejumper Base in this District. Plaintiff has members who reside in this District, and who have been injured by the Forest Service actions and activities complained of herein.

6. The case is properly filed in the Missoula Division pursuant to L.R. 3.3. The Forest Service's Regional Office for Region 1, the Northern Region, is located in Missoula. The Forest Service's use of chemical fire retardant in fighting wildfires has occurred in part within the Missoula Division. The chemical retardants used by wildland firefighting agencies are tested and approved by the Missoula Technology and Development Center. The Forest Service's Fire Sciences Lab and the Missoula Smokejumper Base are also located in Missoula. Plaintiff has members who reside within the Missoula Division, and who have been injured by the Forest Service actions and activities complained of herein.

PARTIES

7. Plaintiff Forest Service Employees for Environmental Ethics ("FSEEE") is a nonprofit organization, with its principal place of business in Eugene, Oregon. FSEEE is comprised of thousands of concerned citizens, present, former and retired Forest Service employees, and other resource managers. FSEEE's mission is to forge a socially responsible value system for the Forest Service based on a land ethic that ensures ecologically and economically sustainable resource management. FSEEE members hold the Forest Service accountable for responsible and legal land stewardship.

8. Plaintiff's members hike, fish, camp, photograph scenery and wildlife, and engage in other vocational, scientific, and recreational activities throughout the national forest system, including Montana. Plaintiff's members derive recreational, inspirational, scientific, and aesthetic benefit from their activities within these national forests. Plaintiff's members intend to continue to use and enjoy these and other areas on the national forests frequently and on an ongoing basis in the future, including this summer.

9. The aesthetic, recreational, scientific, and religious interests of the Plaintiff's members have been and will be adversely affected and irreparably injured if the Forest Service continues to act and fails to act as alleged herein. These are actual, concrete injuries caused by the Forest Service's failure to comply with mandatory duties under NEPA, the ESA, the APA, and other federal laws. The injuries would be redressed by the relief sought.

10. Plaintiff has exhausted any available administrative remedies. Reviewable final agency action exists and is subject to this Court's review under 5 U.S.C. §§ 702, 704, and 706.

11. Defendant Forest Service is an agency of the U.S. Department of Agriculture. It and its officers are responsible for the lawful management of the national forest system.

SUMMARY OF FACTS AND GENERAL ALLEGATIONS

Wildfire and Fire-Fighting on the National Forests

12. Like wind and rain, fire is a ubiquitous, natural phenomenon in forests throughout North America. For national forests across the western United States, fire has been a major evolutionary force for thousands of years. Native plant and animal species on the national forests have evolved with fire, and many species are adapted to, if not dependent upon, fire's periodic occurrence.

13. In fire-adapted ecosystems, fire regulates biotic productivity and stability in ways that cannot be fully emulated by mechanical or chemical means. In the absence of fire, these fire-adapted forests have undergone significant changes in species composition and structure. These changes have predisposed extensive forested areas to epidemic insect infestations, disease outbreaks, and severe stand-replacing wildfires.

14. For nearly one hundred years, the Forest Service has had a policy of extinguishing all wildfires on national forests as soon as possible. As a result of the all-out effort to suppress fires, the annual acreage consumed by wildfires in the lower 48 states dropped from 40 to 50 million acres a year in the early 1930s to about 5 million acres in the 1970s. During this time, firefighting budgets rose dramatically and firefighting tactics and equipment became increasingly more sophisticated and effective.

15. Decades of aggressive firefighting and fire suppression have drastically changed the structure, characteristics, and fire behavior of western forests.

16. Decades of aggressive firefighting on national forests has resulted in thousands of injuries and hundreds of deaths for employees of the Forest Service and other federal agencies, including airplane and helicopter pilots who have died while dropping chemical fire retardant.

17. Fighting forest fires is currently among the most prominent land management tasks in which the Forest Service engages. From 1994 to 2001, the Forest Service fought, on average, over 10,000 wildfires per year on national forests.

18. Fighting forest fires is currently among the most expensive land management tasks in which the Forest Service engages. In Fiscal Year 2001, the Forest Service was appropriated $600 million by Congress to prepare to fight fires (e.g., to acquire personnel and materials) and another $320 million to fight forest fires, for a total firefighting appropriation of almost $1 billion.

The Environmental Impacts of the Forest Service's Use of Chemical Fire Retardant in Fire-Fighting Operations

19. In fighting fires, the Forest Service regularly uses and relies on chemical fire retardant. The Forest Service uses an average of 15 million gallons of fire retardant each year to fight wildfires, and in some years, as many as 40 million gallons have been used. The vast majority of fire retardant is dumped by the Forest Service out of airplanes or helicopters.

20. According to the National Interagency Fire Center, the purpose of chemical fire retardant is to slow the fire down in order to give ground support forces the opportunity to build firelines.

21. The retardant used by the Forest Service is manufactured from fertilizer, which is highly corrosive without an inhibiting agent in the formulation. The Forest Service therefore often uses the FIRE-TROL product line of retardant, which uses sodium ferrocyanide as a corrosion inhibitor. When sodium ferrocyanide is mixed or dissolved in water and exposed to UV radiation, it breaks down to form hydrogen cyanide (HCN), which is extremely toxic to aquatic life, and cyanide ions (CN).

22. The cyanide that frequently results from chemical fire retardant is in addition to the natural amounts of cyanide that is released during wildfires.

23. All fire retardants and foams used by the Forest Service, not just those containing sodium ferrocyanide, can be harmful to the aquatic environment. The fertilizer contained in long-term retardants consists of ammonia and phosphate or sulfate ions. Studies show that a single retardant drop directly into a stream may cause a sufficient ammonia concentration in the water to be lethal to fish and other aquatic organisms.

24. The Forest Service regularly uses significant amounts of chemical fire retardant in fighting individual wildfires. For instance, in fighting the 2000 Bitterroot Fire on the Bitterroot National Fire in Montana, the Forest Service dumped approximately 500,000 gallons of fire retardant on the fire. In addition, in fighting the Big Bar Complex Fires on the Six Rivers National Forest in California in August and September, 1999, the Forest Service used at least 280 tons of chemical fire retardant.

25. Chemical fire retardant is often applied to environmentally sensitive areas, including areas that may contain endangered, endangered, or sensitive species, including salmon, steelhead, and bull trout.

26. Each year, chemical fire retardant is discharged into streams and waterways on national forests. For example, on or about August 26, 2003, an air tanker under contract to the Forest Service dropped chemical retardant into Bacon Rind Creek while fighting the Rathbone Fire. Bacon Rind Creek is located in Montana and flows east into the Gallatin River from Yellowstone National Park's west boundary. In addition, while fighting the Moolack Complex Fire in 1996, the Forest Service dumped chemical fire retardant into Waldo Lake in central Oregon, which is commonly recognized as one of the most pristine lakes in the world.

27. The chemical fire retardants that are regularly used by the Forest Service have resulted in significant fish kills on numerous occasions. For instance, during fire-fighting operations for the Bircher Fire in southwest Colorado in July, 2000, fire retardant was dumped directly into the Mancos River, resulting in a major fish kill, with hundreds of dead fish reported in the water.

28. In addition to adverse impacts to water quality and fish, chemical fire retardant can be harmful to and contaminate other important forest resources, including soils. The fertilizer contained in fire retardant may, under specific conditions, cause nitrate poisoning in animals.

29. The Forest Service at times drops chemical fire retardant on fire-fighters and other workers, which may cause impacts to human health.

30. Chemical fire retardant enters streams, waterways, and sensitive areas for a number of reasons, including misplaced drops, drift, and the runoff of chemicals applied by aircraft. Location, terrain, and safety issues can also result in the application of retardant to sensitive areas.

31. The Forest Service has been using and relying on fire retardants to fight wildfires since the 1950s. The adverse effect of chemical fire retardants on the environment has been a concern of fire control officials since the very beginning of the retardant program. The Forest Service has been aware that chemical fire retardant can result in significant fish kills since at least the 1970s.

32. The Forest Service has never prepared an EA or EIS, pursuant to NEPA's public participation requirements, to disclose and address the environmental impacts of its use of chemical fire retardant. The Forest Service has not requested comments from the public concerning its use of chemical fire retardant, or otherwise involved the public in its decision making process concerning the use of chemical fire retardant. The Forest Service has not considered alternatives to its regular use of chemical fire retardant in fire-fighting operations. The Forest Service has not consulted with other federal or state agencies with respect to the environmental impacts of its use of fire retardant.

33. The Forest Service has prepared an "internal" environmental assessment ("Internal EA") concerning the environmental impacts of its regular use of chemical fire retardant when fighting fires on national forests. The Internal EA, however, was not prepared in compliance with NEPA procedures, has not been released to the public, and has not been provided to Plaintiff upon request.

34. The Forest Service continued to aggressively fight wildlfires on national forests during the summer, 2003, and continued to use and rely on chemical fire retardant. The Forest Service plans to continue aggressively fighting wildfires on national forests during the summer, 2004, and plans to continue to use and rely on chemical fire retardant during its fire fighting operations.

The Forest Service's ESA Consultation Regarding Its Use of Fire Retardant

35. Section 7 of the ESA requires federal agencies to consult with the United States Fish and Wildlife Service ("USFWS") and/or the National Marine Fisheries Service ("NMFS")(1) to insure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of any endangered or threatened species, or result in the destruction or adverse modification of their critical habitat. 16 U.S.C. § 1536(a)(2). To facilitate compliance with this section, federal agencies are often required to prepare a "biological assessment" to identify threatened or endangered species that may likely be affected by an agency action. 16 U.S.C. § 1536(c).

36. In April, 2000, the Forest Service and other agencies developed "Guidelines for Aerial Application of Fire Retardant and Foams in Aquatic Environments." Pursuant to the Guidelines, the aerial application of retardant beyond 300 feet of a waterway is presumed to avoid adverse effects to aquatic systems. The Guidelines have multiple exceptions, however, allowing discharges over waterways when alternative tactics are not available due to terrain constraints, congested areas, life or property concerns, lack of ground personnel, or when potential damage to natural resources outweighs possible loss of aquatic life.

37. In October, 2000, the Forest Service prepared a "biological assessment/evaluation" to identify the effects of applying the Guidelines to federally listed threatened and endangered species. The Forest Service determined that implementing the Guidelines from August, 2000, to December, 2001, may affect, but is not likely to adversely affect threatened and endangered species. According to the biological assessment/evaluation, in April, 2000, after "emergency consultation procedures," USFWS and NMFS gave "conditional concurrence" on the use of the "interim" Guidelines.

38. On February 27, 2001, the Forest Service requested concurrence from USFWS concerning the continued use of the Guidelines until December, 2003. In its request, the Forest Service notified USFWS that additional studies of fire retardant were underway, including a study that was attempting to replicate an earlier study under simulated field conditions. At the conclusion of the new studies, a new risk assessment for retardant use was to be completed, which was anticipated by spring 2003.

39. On June 6, 2001, USFWS responded that its April 20, 2000, temporary approval of the Guidelines provided that the Forest Service and other agencies conduct on-the-ground studies to gather additional information on the efficacy of the Guidelines and assessments of the effects to aquatic species resulting from the use of fire retardants and foams during 1999 and 2000. In addition, during the April, 2000, emergency consultation on the aerial application of fire retardants, the Forest Service and other agencies committed to completing a programmatic consultation on the use of fire retardant chemicals. Since the programmatic consultation on fire retardant has not occurred, and because the other studies were not yet completed, USFWS was only willing to extend its concurrence on the use of the Guidelines until December 31, 2002.

40. In June, 2002, the United States Geological Survey completed one of the fire retardant studies, titled "Environmental Implications of Fire-Retardant Chemicals." The study confirmed that the presence of sodium ferrocyanide consistently increases the toxicity of chemical fire retardants. Other findings included that ultraviolet radiation significantly increases the toxicity of fire retardant containing sodium ferrocyanide, lethal concentrations of cyanide were observed during stream tests, and the toxicity of fire retardants may persist in rainwater runoff from treated areas.

41. The Forest Service has not reinitiated or requested consultation from USFWS or NMFS on the April, 2000, Guidelines, despite the important findings in the subsequent fire retardant studies, and even though the previous USFWS concurrence on the use of the Guidelines has expired. The Forest Service has also still not requested programmatic consultation from USFWS and NMFS on the Forest Service's continued use of and reliance on chemical fire retardant in its seasonal fire-fighting efforts.

CLAIMS FOR RELIEF

CLAIM 1 - NEPA AND THE APA

The Forest Service Has Failed to Prepare an Environmental Assessment or
Environmental Impact Statement to Assess and Disclose the Impacts of its Regular
Use of Chemical Fire Retardants, in Violation of NEPA and the APA


42. Plaintiff hereby incorporates by reference all preceding paragraphs.

43. NEPA requires federal agencies to prepare an "Environmental Impact Statement" ("EIS") for any proposed major federal action that may significantly affect the quality of the human environment. 42 U.S.C. § 4332(2)(C). The EIS must include an analysis of any adverse environmental impacts that cannot be avoided should the project be implemented, alternatives to the proposed action, and any irreversible and irretrievable commitment of resources which would be involved if implemented. Id.

44. Prior to preparing an EIS, the agency must consult with and obtain the comments of any federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. 42 U.S.C. § 4332(2)(C).

45. To determine whether a proposed action may significantly affect the quality of the environment and require an EIS, the agency may first prepare an "environmental assessment" ("EA"). 40 C.F.R. §§ 1501.3, 1501.4.

46. The Forest Service's use of chemical fire retardant in fighting fires on national forests constitutes a major federal action that significantly impacts the quality of the environment.

47. The Forest Service has failed to prepare an EIS, or an EA, to assess and disclose the environmental impacts concerning its regular use of chemical fire retardant during fire-fighting operations, in violation of NEPA. 42 U.S.C. § 4332(2)(C); 40 C.F.R. §§ 1501.3, 1501.4.

48. The Forest Service has failed to develop or consider alternatives to its regular use of chemical fire retardant in fire-fighting operations, in violation of NEPA. 42 U.S.C. § 4332(2)(C), see also 42 U.S.C. § 4332(2)(E).

49. The Forest Service has failed to consult with other federal agencies that have special expertise with respect to the environmental impacts of chemical fire retardant, in violation of NEPA. 42 U.S.C. § 4332(2)(C).

50. The Forest Service's failure to comply with NEPA for its use of chemical fire retardant constitutes arbitrary and capricious agency action, is an abuse of discretion, and is contrary to law and to procedures required by law. 5 U.S.C. § 706(2)(A), (D).

51. The Forest Service's failure to prepare an EA or EIS for its use of chemical fire retardant constitutes agency action unlawfully withheld or unreasonably delayed within the meaning of the APA. 5 U.S.C. § 706(1).

CLAIM 2 - NEPA AND THE APA

The Internal Environmental Assessment Prepared by the Forest Service
For Its Use of Chemical Fire Retardant Violates NEPA and the APA
52. Plaintiff hereby incorporates by reference all preceding paragraphs.

53. NEPA requires agencies to insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken. 40 C.F.R. § 1500.1. Public scrutiny is essential to implementing NEPA. Id.

54. Federal agencies must make diligent efforts to involve the public in preparing and implementing NEPA procedures. 40 C.F.R. § 1506.6(a).

55. Federal agencies must involve environmental agencies and the public, to the extent practicable, in preparing environmental assessments. 40 C.F.R. § 1501.4.

56. Federal agencies must provide public notice of the availability of environmental documents so as to inform those persons and agencies who may be interested or affected. 40 C.F.R. § 1506.6(b). "Environmental documents" include environmental assessments and findings of no significant impact. 40 C.F.R. § 1508.10. In the case of an action with effects of national concern, notice must include publication in the federal register. 40 C.F.R. § 1506.6(b)(2).

57. Agencies must "solicit appropriate information from the public" in preparing environmental documents, including environmental assessments. 40 C.F.R. § 1506.6(d).

58. The Forest Service failed to make diligent efforts to involve the public in preparing its Internal EA for its use of chemical fire retardants. 40 C.F.R. §§ 1506.6(a), 1501.4. The Forest Service failed to provide the required public notice of the availability of the Internal EA. 40 C.F.R. § 1506.6(b). The Forest Service failed to solicit appropriate information from the public in preparing its Internal EA. 40 C.F.R. § 1506.6(d).

59. The Internal EA pertains to an action with effects of national concern, and therefore the Forest Service's failure to provide the required publication of the EA and FONSI in the Federal Register violated NEPA. 40 C.F.R. § 1506.6(b)(2).

60. The Forest Service's failure to make diligent efforts to involve the public, provide public notice, and publish notice in the federal register, for the Internal EA constitutes arbitrary and capricious agency action, is an abuse of discretion, and is contrary to law and to procedures required by law. 5 U.S.C. § 706(2)(A), (D).

CLAIM 3 - THE ENDANGERED SPECIES ACT (ESA)

The Forest Service Has Violated the ESA by Failing to Consult with the
Expert Agencies Regarding the Potential Impacts of Its Regular Use
of Chemical Fire Retardant on Threatened and Endangered Species
61. Plaintiff hereby incorporates by reference all preceding paragraphs.

62. The ESA requires federal agencies to consult with USFWS and NMFS to insure that any action authorized, funded, or carried out by the agency is not likely to jeopardize the continued existence of any threatened or endangered species, or result in the adverse modification of critical habitat for such species. 16 U.S.C. § 1536(a)(2). "Action" is defined as all activities or programs of any kind authorized, funded or carried out, in whole or in part, by federal agencies, and includes the promulgation of regulations, actions that may directly or indirectly cause modifications to the land, water, or air, and actions that are intended to conserve listed species or their habitat. 50 C.F.R. § 402.02.

63. To facilitate compliance with the ESA consultation requirement, federal agencies must ask USFWS or NMFS whether any listed or proposed species may be present in the area of the proposed action. 16 U.S.C. § 1536(c)(1); see also 50 C.F.R. § 402.12(c). If listed species may be present, the agency must prepare a biological assessment to identify any threatened or endangered species which is likely to be affected by such action. Id.; see also 50 C.F.R. § 402.12.

64. The Forest Service's regular use of chemical fire retardant in fighting fires on national forests is an "agency action" under Section 7 of the ESA. The Forest Service has failed to consult with USFWS or NMFS to insure that the continued and regular use of chemical fire retardant in fighting fires on national forests is not likely to jeopardize the continued existence of any listed species or result in the adverse modification of the critical habitat for such species. 16 U.S.C. § 1536(a)(2).

65. The Forest Service has violated, and remains in violation of Section 7 of the ESA for failing to consult with USFWS or NMFS concerning the regular use of chemical fire retardant in fighting fires on national forests. 16 U.S.C. § 1536.

RELIEF REQUESTED

WHEREFORE, the Plaintiff respectfully requests that this Court:

A. Declare that the Forest Service's failure to prepare an EA or EIS to assess and disclose the impacts of its regular use of chemical fire retardant violates NEPA;

B. Declare that the Internal EA prepared by the Forest Service concerning its use of chemical fire retardants violates NEPA;

C. Declare that the Forest Service has violated and continues to violate Section 7 of the ESA;

D. Grant Plaintiff injunctive relief to compel the Forest Service to comply with applicable environmental statutes, prevent irreparable harm, and satisfy the public interest;

E Award to Plaintiff its costs, expenses, expert witness fees, and reasonable attorney fees under applicable law; and

F. Grant Plaintiff such further relief as may be just, proper, and equitable.

DATED this ___ day of October, 2003. Respectfully submitted,


Marc D. Fink
Charles M. Tebbutt
Timothy M. Bechtold

Attorneys for Plaintiff

By: _____________________
Timothy M. Bechtold
1. The National Marine Fisheries Service (NMFS) is now also known as "National Oceanic and Atmospheric Administration Fisheries," or "NOAA Fisheries."

[SamsonFCDES]

I seems that they are realy going after retardent drops.

That part of the suit alone could change the wildfire sene forever...

No more great red clouds of mud falling from the sky to hold fire in check.

I am glad that I have seen more then my fair share already, someday that may be a thing of the past.

[SamsonFCDES]

14. For nearly one hundred years, the Forest Service has had a policy of extinguishing all wildfires on national forests as soon as possible. As a result of the all-out effort to suppress fires, the annual acreage consumed by wildfires in the lower 48 states dropped from 40 to 50 million acres a year in the early 1930s to about 5 million acres in the 1970s. During this time, firefighting budgets rose dramatically and firefighting tactics and equipment became increasingly more sophisticated and effective.

15. Decades of aggressive firefighting and fire suppression have drastically changed the structure, characteristics, and fire behavior of western forests.

16. Decades of aggressive firefighting on national forests has resulted in thousands of injuries and hundreds of deaths for employees of the Forest Service and other federal agencies, including airplane and helicopter pilots who have died while dropping chemical fire retardant.

17. Fighting forest fires is currently among the most prominent land management tasks in which the Forest Service engages. From 1994 to 2001, the Forest Service fought, on average, over 10,000 wildfires per year on national forests.

18. Fighting forest fires is currently among the most expensive land management tasks in which the Forest Service engages. In Fiscal Year 2001, the Forest Service was appropriated $600 million by Congress to prepare to fight fires (e.g., to acquire personnel and materials) and another $320 million to fight forest fires, for a total firefighting appropriation of almost $1 billion.

For me, 14-18 says it all. Nothing like shooting yourself in the foot over and over.

Such a HUGE amount of money and what have we acomplished? We have increased the fuel loads to record levels, resulting in ever greater and more explosive fire behavior each passing year. We are literaly stokeing the fire as opposed to putting it out. More and more fires will rage beyond mans control, and more and more fire fighters will pay the price with life and limb.

UUUGHHH!

I dont even want to get into it.

It will be a very interesting fight to watch.

May whomever is right win.

[Bowbreaker]

Just so everyone knows, the "FSEEE" is a group of enviromental activists. There may or may not be a Forest Service employee in their group. The environmental impact study (EIS) is their ploy to slow up or stop every Forest Service policy. They want firefighters out of forests. If they could pull this off then they get rid of thinning operations (their real objective) which they say is only a new name for logging.

I don't think they can conivce the people living in the urban interface to just let their place burn down for the "good of the enviroment".

[hwoods]

Idiots Abound........

Hopefully, any Judge that finds him/herself hearing one of these complaints will throw it as far as possible, instantly. No, Wait, Give it a fair trial first, then throw it....... Someone posting above used the term "activist", these people are NOT activists, they are terrorists. While some who live in/near forested areas could do a lot more to make their property fire resistive, the idea of investigating spending money to extinguish fires is kinda stupid to me.There is a lot of change that could be brought about, but it must be constructive change. Several ideas are better funding of rural VFDs, Combine ALL federal firefighting in ONE agency, legislate an end to the constant bickering over which engine gets called to whose fire, and a lot of other changes. Do we even need FWS, BLM, BIA, NPS, USDA, etc, or could a single federal agency cover all bases? The first thing that must be done is accept that firefighters from other than federal wildlands CAN do the same job as the federal folks. My biggest gripe about last years fire season was importing firefighters from outside of the US, while tens of thousands of US firefighters were never used. In some cases, Urban Departments offered help to the feds but were told that they were not wanted. Stay Safe....

[SamsonFCDES]

True, a lot of this is most likely environmentalist radicalism.

On the other hand, I realy cant defent the federal fire fighting policy or methods. Along the lines of "there is the right way, and then there is the federal way."

IMO all of that money could be put to much much better use in programs like the fire act and such, with much better end results for all.

We realy do need to return the fire ecology to our western forests, that was how they were designed to be. We have realy screwed up the fuel loads to the point that we cant even do RX burn without the potential for a huge fire.

[hwoods]

Two Things.......

Two unrelated things come to mind that help point out the stupidity in dealing with Interface Fires in America. First, several years ago, Florida was burning, big time. Maryland sent a convoy of Brush trucks and Tankers, with crews, to help out (both paid and Volunteer members of different departments from across the state). When Colorado and Arizona were on fire last year, the same offer was made from Maryland, but refused. The State had control of things in Fla, where the Feds controlled operations in the Southwest. Second, Southern California has a huge fire problem. One simple step to save many more homes in the path of a fire would be to prohibit wood shake roofs. That battle has raged for many years all over the southwest, and wood shake roofs are still very much a part of the landscape. People's lack of concern over appearance winning out over safety is amazing. I could go on all day, no, make that all week, about what I see as wrong about our Fire Protection System here in America (but I won't). Stay Safe....

[SamsonFCDES]

I think that building codes in interface areas are severly lacking. Some simple changes could turn sure losses into easy saves. Sure, these folks build their cabins in the trees because they want to be close to nature. But there has to be some common sence here. If you have trees over hanging your cabin and a foot of duff around your deck you might as well kiss your lovely get away home goodybye.

While we do have a considerable amount of interface areas in MT, we also have a LOT of wilderness and construction free forested areas. These are the areas that are being truely mis managed.