Judge: Federal official not in contempt over fire retardant study

By MATT GOURAS, Associated Press Writer
Monday, March 3, 2008 6:16 PM CST

MISSOULA, Mont. - A federal judge decided Wednesday not to hold Agriculture Undersecretary Mark Rey in contempt over court orders requiring the U.S. Forest Service to study the environmental effects of a chemical fire retardant.

U.S. District Judge Donald W. Molloy had threatened to send Rey to jail after the Forest Service was slow in responding to court orders, suggesting the agency was trying to skirt environmental law. As agriculture undersecretary, Rey oversees the Forest Service.

Although Molloy was critical of the agency, he said it ultimately filed the necessary documents. He added the threat of contempt helped spur the agency into action.

“It would be inappropriate under the circumstances to hold (Undersecretary) Rey or the Forest Service in contempt,” Molloy said.

During testimony on delays in preparing the environmental study, Molloy noted the Forest Service took 2½ years to comply with his order. He called it a “systematic disregard of the rule of law.”

Testimony found similar studies usually take about 1½ years. Molloy said the agency took a full year just to form a task force to get started on the environmental assessment.

“That’s pretty unreasonable, don’t you think?” Molloy said. “Nothing happens for a year? That’s not complying with the rule of law, is it?”

After the hearing, Rey said he was relieved by the ruling.

“We made every effort to comply,” Rey said. “If we had to go back and do it again, we might bring our sister agencies in earlier, at a higher level.”

In issuing his decision, Molloy noted it did not deal with the merits of the environmental study. If the environmental group that filed the lawsuit wants to argue that issue, it will need to seek a separate hearing, the judge said.

Molloy’s decision came on the second day of a hearing in federal court in Missoula. On Tuesday, Rey apologized to the judge and acknowledged the agency “dropped the ball.”

Rey, a former timber industry lobbyist who has directed U.S. forest policy since 2001, told the judge the environmental studies were completed in good faith and that he did what he could to move them along.

In 2005, Molloy ruled the Forest Service violated the Endangered Species Act and the National Environmental Policy Act when it failed to go through a public process to analyze the potential harm from using ammonium phosphate, a fertilizer that can kill fish, as the primary ingredient for fire retardant.

The ruling stemmed from a lawsuit brought by Forest Service Employees for Environmental Ethics after the group said fire retardant dropped in 2002 killed 20,000 fish in central Oregon. The group has said it is not seeking a ban on the fire retardant, but wants thorough environmental studies and actions taken to help protect fish and wildlife.

NOAA Fisheries, which oversees salmon protections, told the Forest Service last year that dropping poisonous fire retardant on wildfires was likely to jeopardize the survival of 26 species of salmon and other fish, and would destroy or harm critical habitat.

The Forest Service, after completing its studies in late 2007, said it had determined there was no significant impact from the use of the fire retardant and that species of concern could be protected through agency actions.

Since then, the agency has said it’s collected additional information prepared by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service and still believes there is no significant impact.

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