lawsuit over fire retardant
Ag Undersecretary Rey Apologizes for Environmental Analyses Delays
By Dillon Tabish, 2-26-08
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U.S. Agriculture Undersecretary Mark Rey, facing the prospect of jail time over the Forest Service’s use of a fire retardant that kills fish, told U.S. District Court Judge Donald Molloy in Missoula Tuesday, “I’m sorry.”
“We’re beyond the point of making excuses,” Rey said, “and there’s no way to put a positive face on the fact that we dropped the ball.”
But Rey and the Forest Service were trying to prove—and will continue to do so Wednesday when the hearing continues—that the agency is not in contempt of the law and has, in good faith, complied with the National Environmental Policy Act and the Endangered Species Act.
Judge Molloy is presiding over a Forest Service Employees for Environmental Ethics 2003 lawsuit that claims the Forest Service, which Rey oversees, deliberately violated NEPA and ESA in its use of chemical fire retardant.
In a January ruling, Molloy wrote, “In my view, the Forest Service is in contempt of the law and the prior orders of this court”—the prior orders being to complete environmental analyses in a timely fashion.
In 2006, Molloy gave Rey and the Forest Service 18 months to work with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service on environmental analyses.
The analyses were not completed in time, and Tuesday, attorney Tom Clark, representing Rey and the Forest Service, said that’s “regrettable.”
Judge Molloy said he appreciated the candor, but asked, “Why didn’t you take my first order to heart?”
To which Clark replied, the process has been “more daunting and complex than originally envisioned.”
After Rey, three other witnesses took the stand, all attempting to demonstrate the Forest Service’s claim that the various agencies did their best to complete the studies and gather data, but it took longer than they anticipated.
“I only became aware that there would be difficulty meeting deadline right around the deadline,” Rey said.
The hearing is scheduled to continue Wednesday at 2:15 at the U.S. District Court in Missoula.
Judge Molloy has said that Rey, a Bush administration appointee who has been the Agriculture Undersecretary since October 2001, could face jail time if found in contempt.
According to court documents, 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.
Matthew Frank contributed reporting.
[End of article]If you're willing to accept Rey's apology, then you really should have also accepted Jeffrey Dahlmer's and Hitler's and... I say we need some tar, some feathers, and a rail.
Comment By bearbait, 2-26-08Now there you go, pissing off Weyerhaeuser and all the megapulp biggies. Rey is their boy, and his job was to be the anti-environment ass that he has been. The net result is there is no longer any viable competition from small mills, locally owned mills, making lumber in amounts enough to impact the marketplace. Rey's job was to be the deliverer of the key to the locked forests to his minders, and that he did, and that key has been thrown in the smelter and the boardrooms have celebrated. All that comes now is just political dancing and music, directed by the court, to the preordained conclusions. The strawman has done his job well, and when the next administration comes to power, Rey will be making the big bucks as a tour guide to where the bodies are buried, or is that lobbyist? Law firm hack? It would not surprise this old fart if he showed up running one of the NGOs of Green. Maybe chasing tax credits and grants to make biofuels out of grasses grown on former forest lands, using wolves to chase away any grazers trying to trespass on the King's pastures.
Comment By Ben, 2-27-08Yikes. This was a long time coming, but still kinda makes you squirm, right? I wonder what the number is of Bush appointees that have been thrown under the bus by the administration. It must be getting harder for even strong supporters to ignore following the line of responsibility to Bush/Cheney. Around this anniversary of the drunken captain Exxon Valdez disaster, I wonder if holding true to NEPA and penalizing violators will resound.
Comment By jedediah redman, 2-27-08If Molloy sentences Rey to jail, Bush can pardon him from serving--will he not do it..?
Comment By Dave Skinner, 2-27-08Has anyone paid attention to what plaintiff FSEEE really wants? To limit firefighting effectiveness so badly that only small belts around habitation are managed and fires fought, while the rest of the landscape is given over to uncontrolled, ahistoric immolation?
Rey may be a straw puke with a golden parachute waiting for him, but I would say it is Molloy, with his aid and abet of environmental extremism, who deserves slammer time. Maybe they could share a cell.
No Dave, of course they're not paying attention to that. They're all too busy trying to figure out what ill of the world they'll blame Bush for next. I really can't wait for Hillary or Barack to get elected, because nothing is going to change. But then who am I kidding, you people will be figuring out things to blame Bush for years after he's dead.
Comment By MT Wilderness Hunter, 2-27-08I swear I saw a similar comment to Jim's eight years ago. It went a little something like this:
"Of course they're not paying attention to that. They're all too busy trying to figure out what ill of the world they'll blame Clinton for next. I really can't wait for Bush to get selected by the Supreme Court, because nothing is going to change. But then who am I kidding, you people will be figuring out things to blame Clinton for years after he's dead."
MT Wilderness Hunter (nice handle), I'm not about to argue that Clinton didn't get blamed for things too, but I think any rational person would have to agree that it's been ratcheted up considerably the last 5 or 6 years. I sincerely hope this trend doesn't continue, or we as a nation are doomed.
To get back on topic, what do you think about the FSEEE's goal of making it difficult, if not impossible to fight forest fires?
Also, does anyone know when the FS started using this particular fire retardant(ammonium phosphate)?
I don't think FSEEE has in mind anything near the "goal of making it difficult, if not impossible to fight forest fires". The organization's intent of striving for the REAL "healthy" forests and forest economies. Personally, I like the idea of employees (past and present) being able to hold their employer accountable. Haven't we all had jobs where we felt we were unable to have a voice for fear of retaliation?
Comment By Mary Beth, 2-27-08Jim,
I found this on a FS Q&A;site:
"Federal and State firefighting agencies began using retardant to fight fires in 1955. They discovered that adding sodium calcium borate to the mixture held the retardant together so that loss due to air turbulence was significantly reduced and more retardant reached the fire on the ground. However, sodium calcium borate is corrosive to airplane tanks and retardant mixing equipment, forms lumps and separates, and is a soil-sterilizing agent. In 1963, manufacturers introduced fertilizer-based retardants containing diammonium phosphate, ammonium phosphate, and ammonium sulfate and agencies began using these retardant solutions to fight fires."
Ben,
I can't recall the actual number offhand, but a very small percentage of FSEEE members are past or present FS employees. It may have started off that way, but that sure isn't the case anymore.
MB,
I know the source and I've read that ...... needless to say, the source of that story is very politically motivated and a bit questionable, to say the least - but true, not every member of FSEEE is a FS employee. The point I was trying to make is that the group is concerned about fire fighter deaths and injuries, questionable forest policies, and overall ecological health. I, for one, really like the way whistleblowing laws have created a little safer environment in which employees can hold their bosses accountable. For that, at least, groups like this should be applauded. Without this, who would have brought this situation to light? Do people think this is political? Rather, is this story of concern because of the illegal acts? Or something else?
Ben, I don't necessarily disagree with many of your points in general, but let's talk about this specific case. I really don't care what happens to Rey. What I do care about is a single judge making a decision which might potentially cripple our ability to fight fires (and to be fair, that might not happen). The original suit is about the fact that if misused, this retardant can be lethal to fish. The irony is that un-fought fires will kill many more fish and other creatures than misuse of retardant.
The questioning of FSEEE's motives weren't just pulled out of thin air. The quote in the Missoulian article (http://www.missoulian.com/articles/2008/02/27/news/top/news01.txt) was:
"FSEEE, based in Eugene, Ore., wants to use the suit to force the agency to change its firefighting policy to emphasize fire prevention around communities and allowing fires to burn if they pose minimal threat rather than extinguishing most fires."
I have no idea how the reporter for the Missoulian arrived at that conclusion.
Look I freely admit that I am not an expert on all of this, and I truly am a moderate. I can see, and often understand both sides, but what angers me so much is that I feel like common sense just gets lost in the rhetoric. I feel caught between the "cut it all" crowd and the "let it burn" crowd, and wonder if there are any clear thinking rational people left in the middle. If either of these sides get their way, it's same result to me. That's why the "blame Bush for everything" responses anger me so much. It is NOT that I love Bush (I don't), it's that this kind of response serves no constructive purpose.
I see your concern, Jim. My thoughts....the rhetoric IS the problem sometimes. The same source that devalues FSEEE expresses hatred for Judge Molloy. Now, I don't like the thought of ONE person dictating agendas, either. But Molloy will have at least some oversight, countersuits, appeals, accountability, etc....and there has been little oversight of this administration - there has to be accountability for decisions and policy (poorly titled "healthy forests initiative"/ FEMA and Brownie). I think that is why FSEEE exists. He isn't to be blamed for everything, but appointments and managing agency policy (like FEMA for cryin out loud) are essential presidential responsiblities.
As for FSEEE, that quote is kind of what they state as their mission. They aren't saying "let it burn", nor do they say "cut it all", but they are advocating for "stewardship". I kind of like that approach. Also, fires can be beneficial to fish populations and habitats, but the retardant does harm fish - not "can". It seems incredible that it could have been so widely used.
Rey was able to snooker the system by delaying response until after Molloy had announced his retirement.
Further entanglement with Mark Rey's iniquities could potentially delay that long awaited personal goal; so it is unlikely Molloy will create any more problems for the recommercialization of USFS concerns...
the Bush administration has consistantly allowed politics to alter, obfiscate, and ignore simple scientific data regarding safe levels of pollutants, global warming, and a whole host of things. political hacks who participate in any activity which brings harm and detriment to the 'public health, safety, and welfare' definitely need to spend some time in the slammer. there is no difference between an action which violates a mandated law and an action which does not respect the wellbeing of society by harming the enviornment which humans depend upon: both are CRIMINAL acts.
Comment By Chuck, 2-29-08You all should ask someone who was on the analysis task group... like I did. In reality, Rey had nothing to do with it. How many of you have participated in an environmental analysis, for a federal agency? Likely not many or you would understand that there was a great deal of activity surrounding the retardant analysis. The reporters would also have noticed that the formula of retardant used when the big 20,000 fish kill took place is no longer used due to elevated toxicity. Further, you all should at least read the Environmental Assessment (http://www.fs.fed.us/fir/retardant) as you would see that a great deal of thought went into the analysis and into the use of retardant.
I don't want to be preachy, but this is not about Molloy or Rey, its about environmental organizations using sympathetic judges to help further their cause. Its not the cause that should be of concern to the public, but rather the use of judges to impose policy, of which they are not trained...
Please be informed before "putting the bad-mouth" on the agencies, they have a new policy every new election. Few agency people want to destroy the environment.
by the way, did you know that dihydrogen monoxide is use in fire retardants, and has killed more people than ammonium sulfate? Look it up!