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Lawsuit could result in banning use of retardant on West's wildfires

Saturday, June 19, 2004

MICHAEL MILSTEIN

A lawsuit by an Oregon environmental group could prompt a ban in Western states on the use of fire retardant during this year's wildfire season, a recent court order and documents say.

Chemical retardant, dropped from planes and one of the most effective early tools firefighters have to contain fast-moving blazes, has been shown to kill fish.

The lawsuit by Forest Service Employees for Environmental Ethics in Eugene hinges on the level of risk retardant poses to wildlife. In a few cases, retardant reached streams and killed fish, including 21,000 in Central Oregon's Fall River in 2002.

The group this week released federal documents showing government biologists contend firefighting agencies such as the U.S. Forest Service must work with them to avoid harming protected species. But the fire agencies have not done so since 2002, arguing the Endangered Species Act and other laws let them attack fires as emergencies without consultations.

However, the documents also show that Forest Service officials acknowledged last year that they remain legally vulnerable.

U.S. District Judge Donald Molloy, seated in Montana, where the lawsuit was filed, underscored the point. He said in a court order that if the Forest Service has not followed the Endangered Species Act or other laws, it "will likely be forced to discontinue its use of retardant until it has complied with the statutes at issue."

The developments come at a crucial time. Much of the West is entering the summer tinder dry. Firefighters are working to hire enough aircraft to shower retardant on flames after federal contracts for many of their largest airtankers were canceled for safety reasons.

Mark Rey, undersecretary of Agriculture, said the longstanding emergency provisions are reasonable because fires erupt without warning and demand rapid action.

"In this case, we have no proposal to consult on," he said Friday. "Fires happen and we respond."

He declined to speculate on the lawsuit's outcome and said he's confident the nation's firefighting tools are ready.

"Right now, I'm confident. Yes," he said.

Further arguments in the case are scheduled for next week.

It may be the first case to challenge the emergency provisions. The Eugene forest group that brought the lawsuit contends the government risks the lives of fire crews by often ordering them to battle remote fires that may not threaten property.

Decades of suppressing wildfires has left many Western forests overgrown and more flammable than ever, putting firefighters at greater risk, said executive director Andy Stahl.

"What's been bothering us about the whole approach for years is that the public has never been able to express its views to the government on whether we should continue this insanity of fighting every fire," he said.

The group has used its retardant lawsuit to argue for a full public review of federal firefighting strategies. Stahl said the government could avoid a possible crackdown on retardant by committing to such an assessment.

Retardant is a mixture of water, fertilizer and other compounds designed to stick to trees and flammable vegetation to slow flames.

"It can buy you time to keep from getting into an extended attack situation and very large fires," said Alice Forbes, assistant director of operations at the Forest Service.

Although only the Forest Service is named in the lawsuit, it could have broader repercussions. The Oregon Department of Forestry plans to hire four air tankers to fight fires this summer and had expected to fill them with fire retardant at federal bases operated by the Forest Service and other agencies.

"If it's banned, then we won't have anything to drop," said Rod Nichols, a spokesman for the state.

He said burned landscapes pose their own risk to wildlife through erosion and other impacts.

Although federal guidelines say pilots should not drop retardant within 300 feet of lakes and streams, a few fish kills have been traced to errant drops. An air tanker fighting a 9-acre blaze in Central Oregon in 2002 accidentally loosed more than 1,000 gallons of retardant into the Fall River, killing more than 21,000 trout and other fish over several miles.

The fertilizer in the retardant suffocated the fish. Studies have also found that sodium ferrocyanide added to retardant to keep it from corroding tanks releases toxic cyanide when exposed to sunlight, posing an added risk.

Federal agencies had planned to stop using the sodium ferrocyanide by this year, but have since extended the deadline to next year, said Rose Davis of the National Interagency Fire Center in Boise.

Michael Milstein: 503-294-7689; [email protected]