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News & Features
From the Idyllwild Town Crier weekly newspaper, 01.17.08 edition.
Judge may jail USDA official
for contempt
By J.P. Crumrine, Assistant Editor
A top official of the U.S.
Department of Agriculture (USDA) faces incarceration for contempt of
court in a lawsuit involving the U.S. Forest Service’s use of fire
retardant.
In October 2003, the Forest Service Employees for
Environmental Ethics (FSEEE) challenged the U.S. Forest Service’s use
of fire retardants in fighting fire. FSEEE wanted a declaratory
judgment because the Forest Service was in violation of the National
Environmental Policy Act and the Endangered Species Act (ESA). It also
asked for an injunction compelling the Forest Service to comply with
the law.
This fall, in response to verbal fisticuffs, the
Forest Service produced an environmental assessment of its application
of fire retardant that the court found circumvented, rather than
complied with, the laws.
Unfortunately for the federal bureaucracy, the three-year ordeal to
brush off the Oregon gadfly may turn into a political embarrassment of
unimaginable and unprecedented proportions.
Judge Donald W. Molloy of the U.S. District Court in Missoula, Mont.,
issued a preliminary decision Friday that went much further. He found
the Forest Service’s actions “duplicitous at best.” Then he continued,
“A straight reading of the record here indicates that the Forest
Service had no intention to comply with the court’s orders ...
“In my view, the Forest Service is in contempt of the law and the prior
orders of this court,” Molloy wrote. But before issuing a final
order, he told both parties to appear before him on Feb. 26.
“The Forest Service shall be afforded the opportunity to dispel the
court’s inclination to hold it in contempt of court for failure to
comply with the law and the court’s orders,” he advised the agency.
f the Forest Service fails this time, the possible sanctions include
incarcerating Undersecretary of Agriculture Mark Rey until the Forest
Service has met its legal and regulatory obligations. In lieu of a
correctional facility, Molloy would consider house arrest subject to
electronic monitoring.
The third sanction, while less personal, may have a dramatic effect on
future firefighting capability in the West.
“Enjoining the use of all aerial fire retardants, except water, in all
50 United States, until the Forest Service has met its legal and
regulatory obligations and complied with the court’s order,” Molloy
admonished the agency.
Rey is the USDA official that oversees the Forest Service’s policies.
The chief of the Forest Service reports to him.
According to Donna Drelick, Forest Service national media officer, this
is the official Forest Service response to the judge’s order: “We take
very seriously our obligations to perform the environmental analyses
required by law, and have made every effort to comply with the court’s
rulings in this case. We expect to demonstrate the government’s
good faith in further proceedings before the court.”
Molloy is holding Rey responsible for the Forest Service’s inadequate
analysis. Jail time for a civil offense and unrelated to a First
Amendment (free speech) issue is very rare. Andy Stahl, FSEEE executive
director, does not know of another instance except for a criminal
action.
The annual average use of chemical fire retardant approaches 15 million
gallons. In a high fire year, usage will climb to 40 million gallons.
Based on its environmental assessment, the Forest Service filed a
notice that fire retardant use had “no significant impact” on the
environment.
However, Molloy finds that the Forest Service used consultations with
the National Marine Fisheries Service (NMFS) and the Fish and Wildlife
Service, as required by the ESA, to feign compliance with his order.
These contacts were initiated only weeks before the environmental
analysis was due, rather than giving those agencies adequate time to do
their analysis.
He offered the Forest Service and Rey no sympathy. Instead, he quotes
the NMFS notes that retardants could damage critical habitat for
certain anadromous fish species.
In the next five weeks, the Justice Department will try to find a
better explanation for the Forest Service’s behavior or Molloy will
jail the second-ranking USDA official.
“This could all have been done in the three to four years since we
filed the first request,” Stahl said. “It’s been tough to get the
government to obey the law. Their resort to contempt is an example of
the lengths they’ll go to avoid the analysis.”
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