US Forest Service Sued Over Fire Retardant Use

An environmental group has filed suit against the US Forest Service claiming that fire retardants used to battle wildland fires violates the Clean Waters Act. Forest Service Employees for Environmental Ethics filed suit in US District Court for the District of Montana against the US Forest Service earlier this week.

The group has filed numerous suits against the Forest Service dating back decades. They describe themselves as nonprofit “composed of thousands of concerned citizens, present, former, and retired Forest Service employees, and other government resource managers.”

The suit alleges that the fire retardant used by the US Forest Service qualifies as a pollutant under Section 301(a) of the Clean Waters Act. During firefighting operations, the product is dropped from air tankers into and adjacent to navigable waterways in violation of the act. The suit further alleges that use of the retardant is not subject to any of the exceptions in the act.

Quoting from the complaint:

  • Aerial retardant drops are not allowed in waterways or buffers surrounding them or in avoidance areas that have been mapped for certain threatened, endangered, proposed, candidate or sensitive species.
  • This national direction is mandatory and is implemented except in cases where human life or public safety is threatened and retardant use within avoidance areas could be reasonably expected to alleviate that threat.
  • Between 2012 and 2019, the Forest Service discharged retardant pollutant on at least 459 occasions, totaling 761,282.5 gallons, from aircraft directly into national forest navigable waters.
  • The Forest Service’s discharges of retardant pollutants into waterways from aircraft point sources is continuous, on-going, and unpermitted, in violation of the Clean Water Act.
  • Degradation of water quality from aerial retardant harms FSEEE’s members’ use and enjoyment of national forests, including the forests’ fish, wildlife, plants, and waters. FSEEE’s members intend to continue to use and enjoy these and other areas on the national forests frequently and on an ongoing basis in the future, including this year.

The suit seeks an injunction to compel the forest Service to comply with the Clean Waters Act. Here is a copy of the complaint.

Here is a listing of some of the prior suits filed by FSEEE against the USFS:

  1. United States District Court, Montana Oct 11, 2022 9:22cv168
  2. United States District Court, Oregon Aug 18, 2021 6:21cv1228 
  3. United States District Court, Washington Western Sep 15, 2017 3:17cv5747 
  4. US District Court for the Eastern District of Washington Aug 16, 2016 2:16cv293 
  5. United States District Court, Oregon Jan 15, 2009 6:09cv6019
  6. United States District Court, Pennsylvania Western Nov 20, 2008 1:08cv323 
  7. United States District Court, Kentucky Western Jun 02, 2008 5:08cv91 
  8. US District Court for the District of Montana Mar 31, 2008 9:08cv43 
  9. US District Court for the Western District of Kentucky Jun 12, 2006 
  10. US District Court for the District of Alaska Mar 30, 2006 3:06cv68 
  11. US District Court for the District of Oregon Apr 22, 2005 3:05cv553 
  12. US District Court for the District of Oregon Jan 19, 2005 6:05cv6015
  13. US District Court for the District of Oregon Nov 08, 2004 3:04cv1628 
  14. US District Court for the District of Oregon Jul 14, 2004 1:04cv3061 
  15. US District Court for the District of Montana Jul 08, 2004 9:04cv133
  16. US District Court for the District of Montana Dec 03, 2003 9:03cv199 
  17. US District Court for the District of Montana Oct 14, 2003 9:03cv165 

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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