Lawsuit Says Bush Administration Wouldn't Study Fire Retardant Risk

GRANTS PASS, Ore. (AP) -- The Bush administration decided not to consult with government agencies on the potential harm to threatened and endangered fish from fire retardant dropped on wildfires, despite advice to do so from the agencies, according to documents emerging in a lawsuit.

The documents were released Thursday by the Forest Service Employees for Environmental Ethics after obtaining them from the government as part of their lawsuit over fire retardant use filed last October in U.S. District Court in Missoula, Mont.

``The public needs to know that if the judge orders retardant use to be stopped, it's because the government chose to break the law, and it knew better,'' said Andy Stahl, director of the Eugene, Ore.-based environmental group made up of Forest Service employees.

``We could avoid that outcome. The way to do that is for the government to agree it has to write an environmental impact statement and involve the public in deciding how we manage fire on public lands, something the government has never done in 100 years.''

Fire retardant dropped from air tankers contracted by the Forest Service contains sodium ferrocyanide, which breaks down to form hydrogen cyanide, which kills fish when it is mixed with water and exposed to sunlight, the lawsuit contends. At least three fish kills from fire retardant falling in streams have been acknowledged by the government.

In allowing timber interests to intervene in the lawsuit, Judge Donald W. Molloy wrote that if the environmental group wins its lawsuit, the Forest Service will have to stop using fire retardant until it complies with the law.

The lawsuit claims the Forest Service has violated the National Environmental Policy Act by failing to go through a public review of the environmental effects of dropping retardant.

It also argues the Forest Service violated the Endangered Species Act by failing to consult with the U.S. Fish and Wildlife Service and NOAA Fisheries, which have jurisdiction over threatened and endangered fish, on the lethal effects of fire retardant on bull trout and salmon.

Spokesmen for the Forest Service and for Mark Rey, agriculture undersecretary for natural resources and the environment, said they could not comment on pending litigation.

Stahl said a motion for discovery in the case produced hundreds of documents loaded onto a CD marked with the case number.

Among them were:

-- A June 23, 2003 briefing paper prepared by Rick Sayers, the Fish and Wildlife branch chief for Endangered Species Act consultation.

It said Fish and Wildlife and NOAA Fisheries had told the Forest Service that the Endangered Species Act required them to consult with the agencies before contracting for and using fire retardant on wildfires.

It added that an environmental review of fire retardants should be done before buying new supplies.

Application guidelines, which include 200-foot buffers along streams, are not sufficient to protect fish, and do not include permission to inadvertently kill threatened and endangered fish, the briefing paper said.

-- A June 30, 2003 memo from Tom Harbour, Forest Service deputy director of fire and aviation. Harbour wrote that he was told by Dave Tenny, deputy undersecretary of agriculture for natural resources, that he, Rey and an unnamed undersecretary of interior had met. They decided ``there would NOT be formal consultation on retardant use.'' Instead, they would cooperate with Fish and Wildlife and NOAA Fisheries on appropriate guidelines.

-- A June 26, 2003 Forest Service and Interior Department briefing paper on fire and aviation management. It noted that Fish and Wildlife and NOAA Fisheries advised the Forest Service must consult with them over the use of fire retardant as called for by the Endangered Species Act. The agencies said they should also do an environmental review under the National Environmental Policy Act. A list of options noted that ``legal vulnerability is high'' if they decided against consultation.

The briefing paper noted that more than 11,000 loads of fire retardant are dropped annually on 6,500 acres in the course of fighting wildfires. In the previous two years, retardant went into streams eight times, resulting in three fish kills.

``The Forest Service maintains that this level of overflight, spills and fish kill would not jeopardize the continued existence of any listed species,'' the briefing paper said. ``Additional guidance will not increase protection of fish where life or property are threatened, or reduce the risk of an accidental spill.''