Wildfire retardant drops break law, judge says.

GRANTS PASS, Ore. -- The U.S. Forest Service violated environmental laws, including the Endangered Species Act, when it failed to go through a public process to consider the dangers of fire retardant drops that have killed thousands of fish, a judge has ruled.

The Forest Service decision not to comply with the National Environmental Policy Act on the dangers of using toxic fire retardants "appears to be a political decision," District Judge Donald W. Molloy in Missoula, Mont., wrote in the decision released Tuesday.

Judge Molloy ordered the Forest Service to prepare a formal environmental analysis of the effects of fire retardant on the environment and consult with the U.S. Fish and Wildlife Service on the potential harm to endangered fish, but did not bar the Forest Service from using fire retardant until it complied.

Andy Stahl, executive director of Forest Service Employees for Environmental Ethics, which brought the lawsuit, said the group did not ask the judge to bar the use of toxic fire retardants. Instead, the organization based in Eugene hopes the ruling will lead the Forest Service to stop fighting wildfire like a war and start managing it as a natural part of the ecosystem.

"For 100 years the Forest Service has fought fire rather than manage it," said Stahl. "It's a wake-up call to say, 'Hey, you've got to look at the big picture.' ... There are alternatives and we need to get smarter about fire."

Stahl compared the impact of the ruling to those protecting habitat for the northern spotted owl, which forced the Forest Service to drastically reduce logging to protect habitat for hundreds of species, not just the owl.

Forest Service spokeswoman Heidi Valetkevitch said the agency was reviewing the ruling, but as a matter of policy did not comment on legal matters.

The judge did not elaborate on the political decision comment, but environmentalists and Democrats have been complaining that Bush administration political goals of repealing environmental laws are motivating Forest Service decisions. This month the Forest Service withdrew permits for 1,500 activities on national forests around the country, such as cutting Christmas trees, to comply with a court order in a lawsuit over public participation in a timber sale. The judge in that case told the Forest Service it had gone much too far.

Stahl's organization filed the lawsuit in 2003, a year after 1,000 to 2,000 pounds of toxic retardant were dropped in Fall Creek in Central Oregon, killing more than 20,000 fish in six miles of the stream. Unknown numbers of fish died as the poison flowed into the Deschutes River.

Judge Molloy found that the Forest Service uses an average of 15 million gallons of retardant a year, and in some years up to 40 million gallons, as it supplies planes under contract around the country to fight fire. From August 2001 through December 2002, retardant was dropped in water inhabited by endangered species eight times, six of them on national forest lands.

About 40 percent of the retardant contains a toxic chemical to prevent corrosion in the tanks of retardant planes that turns into a lethal cyanide compound when it is exposed to water and sunlight, said Stahl.

Judge Molloy rejected the Forest Service argument that using fire retardant was not a major federal action, but a series of smaller actions by fire commanders with no time to do a full environmental analysis.

"All evidence suggests that the USFS was told by other agencies to consult NEPA on fire retardant issues," the judge wrote. "The decision not to involve NEPA appears to be a political decision. The only reason the USFS has provided for not applying NEPA is that there was no proposal for a major federal action. This is not a reasonable conclusion."

Molloy also rejected the Forest Service argument for not consulting the U.S. Fish and Wildlife Service over the dangers to endangered fish.

The Forest Service had argued that determining the types of fire retardant to use, issuing guidelines for its use, nationwide fire retardant contracts, and the longtime use of retardant were not "programmatic activities" requiring consultation, and there is no effect on endangered species until the retardant is actually dropped.

"The emergency exception is meant for unexpected exigencies," Molloy wrote. "The use of fire retardant by the USFS is not unexpected but guaranteed."