fire retardant lawsuit

Judge Clears Mark Rey and Forest Service of Contempt

By Dillon Tabish, 2-27-08

	Agriculture Undersecretary Mark Rey

U.S. Agriculture Undersecretary Mark Rey, overseer of the Forest Service, calmly walked out of the U.S. District Court in Missoula Wednesday evening cleared of contempt charges.

District Court Judge Donald W. Molloy ruled that although the Forest Service dragged its feet in completing environmental analyses on the effects of fire retardant on fish, his previous court order was eventually complied with.

Judge Molloy said the issue of contempt was unfortunate, but it at least got the government agency moving.

“The system can’t function if everyone acts like they don’t know what’s going on,” Judge Molloy said after three hours of testimony. “It’s shameful that it took this long to begin.”

Rey, a Bush administration appointee, was facing possible jail time if found in contempt of the law, while the Forest Service could have potentially been banned from using chemical retardant to fight wild fires.

Rey and the Forest Service were trying to prove that the agency had, in good faith, complied with the National Environmental Policy Act and the Endangered Species Act while also working with other agencies. The judge was not ruling on the merits of the compliance.

“Nothing suggests intentional foot dragging,” said Forest Service lawyer Mike Guzman in his closing argument. But Guzman did admit that the Forest Service didn’t comply with the court in the best possible way, which was a “regrettable error on our part.”

But Tom Harbour, deputy director of fire and aviation management for the Forest Service, stated that he knew of an email sent to Rey which read, “We wanted to give you a heads up about our need to request an extension,” which was never followed through on.

Timothy M. Bechtold, attorney for the group, argued that “Rey didn’t act until he was threatened with contempt.”

The Forest Service ignored connected actions and took a process and turned it into a dead end, he said.

Bechtold ended his closing argument saying, since the Forest Service announced it’s cutting its budget, “I can’t imagine they wouldn’t want to put him in jail.”

	A fire retardant drop on a lake in the Mt. Hood National Forest, Oregon. Photo courtesy of Stuart Williams.

On Tuesday, Rey took the stand and turned to Judge Molloy during testimony and said, “I’m sorry.”

“We’re beyond the point of making excuses,” said Rey, a former timber industry lobbyist, “and there’s no way to put a positive face on the fact that we dropped the ball.”

On Wednesday, Molloy emphasized the point that this case was more about following the law of the land than showing regret.

“I am not owed any personal apologies,” he said. “It’s not about any judge being owned an apology…I genuinely believe in the rule of law.”

In a January ruling, Judge 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.

The environmental analyses were part of a 2003 lawsuit brough by the group Forest Service Employees for Environmental Ethics that claims the Forest Service deliberately violated NEPA and ESA in its use of chemical fire retardant, which some believe is harmful to habitat. In 2006, Judge 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.

Six witnesses testified for the defense, including government officials who attempted 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. Two biologists who agreed with the Forest Service’s findings in their Environment Assessment survey.

The Forest Service claims, through the survey completed in late 2007, that retardant does not have a substantial impact on species. The FSEEE disagrees, and cites an incident in 2002 when a fire retardant drop killed 20,000 fish in Oregon.

Defense witness Victoria Henderson works with equipment and chemicals for the Forest Service and testified to the effectiveness of fire retardant on wild land fires.

Long term fire retardant, she said, slows the rate of spread by 53 to 58 percent, citing the fire on Mt. Jumbo in Missoula two summers ago that was essentially contained by fire retardant slurry drops.

“You get more for your money [using fire retardant],” she said.

Judge Molloy did not order an injunction on the use of retardant by the Forest Service, which provides aerial retardant to other agencies like the Department of Natural Resources and Conservation. The Jocko Lakes fire, which caused parts of the town of Seeley Lake northeast of Missoula to evacuate last summer and was at one point the number one priority fire in the nation, relied heavily on the use of retardant to aid crews.

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.

Walking outside after the hearing, Rey said he took what the judge said very seriously and believed that “we did everything in good faith compliance.”

“We’ll see where the case proceeds from here,” he said.

Editor's note: This story has been corrected. Tom Harbour was not a witness for the plaintiff as originally reported. Also, Judge Molloy was not ruling on the merits of the Forest Service's compliance with NEPA or ESA, and a sentence has been added to make that clear.

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