FSEEE loses yet another retardant lawsuit

A federal judge ruled Friday that the U.S. government can continue using retardant to fight wildfires, despite his finding that it does pollute streams in violation of federal law. Banning retardant could cause greater environmental damage from wildland fires, said U.S. District Judge Dana Christensen in court in Missoula, Montana.

The judge agreed with U.S. Forest Service officials who testified that dropping retardant from aircraft into areas near waterways was sometimes necessary to protect lives and property, according to an AP report posted by KEZI-TV.

2019 retardant drop, photo by Kari Greer
2019 retardant drop, photo by Kari Greer

Christensen’s ruling resulted from yet another lawsuit filed last year by an environmentalist group trying to protect fish over people when they learned that the Forest Service had dropped retardant into waterways — what they claim was hundreds of times over the last decade.

The lawsuit is on file HERE: (PDF file).

Retardant is often crucial in slowing the progression of wildfires, which have grown larger and more destructive and more frequent as climate change and a burgeoning wildland/urban interface advance the danger of fires across the West — and other parts of the world.

Firefighters air tanker
Firefighters observe a retardant drop by an RJ85 airtanker. DOI photo.

Though environmental groups claim fire suppression efforts allowed incursions of retardant more than 200 times over the last 10 years, fire officials reply that such situations happened accidentally — and in less than 1 percent of the thousands of retardant drops ordered each year.

During this case — yet another in the decades-long battle by environmental groups against the use of retardant — a coalition including Paradise, California said stopping the use of retardant would risk lives, homes, and forests. (The 2018 Camp Fire killed 85 people and destroyed the town of Paradise.) There’s a good story online about this coalition by AerialFire Magazine.

Paradise Camp fire homes burned
A neighborhood on Debbie Lane in Paradise, California, before and after the Camp Fire that started November 8, 2018. The homes were 14 to 18 feet apart.

“This case was very personal for us,” said Paradise Mayor Greg Bolin on Friday. “Our brave firefighters need every tool in the toolbox to protect human lives and property against wildfires, and today’s ruling ensures we have a fighting chance this fire season.”

“Retardant lasts and even works if it’s dry,” said Scott Upton, a former region chief and air attack group supervisor for CAL FIRE. “Water is only so good because it dries out. It does very well to suppress fires, but it won’t last.”

KDVR-TV reported that the Oregon-based group Forest Service Employees for Environmental Ethics (FSEEE) argued in its most recent lawsuit that the Forest Service was disregarding the Clean Water Act by continuing to use retardant without taking adequate precautions to protect streams and rivers. Launched by Jeff DeBonis in 1989 in Eugene, Oregon, the group (nationalforestadvocates.org) says it has about 10,000 members; it publishes a quarterly called Forest Magazine and pays its director Andy Stahl over $91K annually. The organization receives a substantial part of its support from a governmental unit and/or the general public.

Andy Stahl
Andy Stahl

FireRescue1 reported that FSEEE claims wildfire retardant drops are expensive, ineffective, and a growing source of pollution for rivers and streams. “There’s no scientific evidence that it makes any difference in wildfire outcomes,” said Andy Stahl. “This is like dumping cash out of airplanes, except that it’s toxic and you can’t buy anything with it because it doesn’t work.”

The case has been followed closely by officials in California, where an extremely wet winter is likely to stoke the growth of early-season light fuels. “This is going to destroy towns and many communities in California, if they allow this to go through,” said Paradise Mayor Greg Bolin, whose town was razed by the Camp Fire five years ago. “To maybe save a few fish, really?”

The Smokey Wire is a Forest Service and public lands policy blog administered by Sharon Friedman, Ph.D., forest geneticist, Forest Service retiree, and former Chair of both the Forest Policy Committee and Forest Science and Technology Board at the Society of American Foresters. In a recent post about this retardant case, she commented on a piece in the San Joaquin Valley Sun published about a month ago in April, which noted that if the court sided with FSEEE, the USFS would have to obtain a special permit under the Clean Water Act to use retardant from aircraft — a lengthy process that would span multiple years. During the lawsuit, the USFS initiated the process of receiving such a permit from the EPA with the current 300-foot buffer zone for retardant drops from affected waterways.

Air Tanker 118 HC_130H Ferguson Fire
While following a lead plane, Tanker 118, an HC-130H, begins a retardant drop on the 2018 Ferguson Fire — photo by Kari Greer

In response, FSEEE argued that 300 feet was an arbitrary number. Despite its argument that the USFS had originally created the 300-foot buffer proposal out of thin air, FSEEE then asked the Court for a 600-foot buffer zone.

U.S. District Judge Dana Christensen
U.S. District Judge Dana Christensen

Judge Christensen noted then that a ruling was pending, because fire season in the West is pending. He expressed skepticism at the nationwide impact of siding with FSEEE and rejected its push for an extended buffer zone. “The last thing I want to do is start imposing magic numbers in terms of buffer zones,” he said. “I mean, that’s way out of my wheelhouse. But I don’t know what the Forest Service did to come up with a 300-feet buffer, and you’re describing it as being essentially nothing. It’s a magic number. And I will tell you, if this Court imposes a 600-foot buffer, that is truly a magic number. So that’s probably not going to happen.”

USFS attorney Alan Greenberg said the Forest Service uses retardant on about 5 percent of wildfires — and less than 1 percent of those drops end up in contact with water.

Christensen said that stopping the use of retardant could result in greater harm from wildfires — including to human life and property and to the environment. (Note that his ruling was not nationwide — it’s limited to the 10 western states where FSEEE alleged harm from pollution into waterways.)

In the lawsuit (online HERE), FSEEE specifies that “the chemical retardants used by wildland firefighting agencies are tested and approved by the United States Department of Agriculture’s Missoula Technology and Development Center, located in this Division. The Forest Service also has a Fire Sciences Lab and Smokejumper Base in this Division. Plaintiff has members who reside in this Division, and who have been injured by the Forest Service actions and activities complained of in this Complaint. Moreover, the Forest Service has discharged aerial fire retardant into navigable waters in this Division without a National Pollution Discharge Elimination System (NPDES) permit.”

May 20 - Airtanker drops retardant
Airtanker drops retardant

After the lawsuit was filed the Forest Service applied to the EPA for a permit that would allow it to continue using retardant without breaking the law. That process could take years. Christensen ordered federal officials to report every six months on their progress; no word yet on whether the USFS will still pursue that EPA permit or whether they have to continue reporting to Christensen about it.

Fire retardant covers a road sign on Barrett Lake Road in the eastern San Diego town of Dulzura, California, site of the Border 32 Fire that burned 4,456 acres between August 31 and Sept 8, 2022. Photo Credit: Josh Stotler
Fire retardant covers a road sign on Barrett Lake Road in the eastern San Diego town of Dulzura, California, site of the Border 32 Fire that burned 4,456 acres between August 31 and Sept 8, 2022.
Photo Credit: Josh Stotler

Health risks to firefighters or other people who come into contact with fire retardant are considered low, according to a 2021 risk assessment. But the chemicals can be harmful to some fish, frogs, crustaceans, and other aquatic species. One government study found misapplied retardant could adversely affect dozens of species including crawfish, spotted owls, and threatened fish such as shiners and suckers. To prevent risk, officials and pilots have avoided drops within 300 feet (92 meters) of waterways. Retardant may be applied inside those zones only when if life or public safety is threatened. Of 213 documented instances of fire retardant contacting water between 2012 and 2019, 190 were accidental and the remainder were necessary to protect lives or property, officials said.


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26 thoughts on “FSEEE loses yet another retardant lawsuit”

  1. “Aerial retardant is effective over a narrow range of conditions, and the windows of opportunity for those conditions are narrowing each year due to climate change,” said Timothy Ingalsbee, a former wildland firefighter and executive director of the nonprofit Firefighters United for Safety, Ethics and Ecology, which is not involved in the lawsuit.

    Retardant is most effective when used in the cool of the morning on relatively level terrain with sparse vegetation during the initial attack of small fires burning near communities, he said. Ground crews must be nearby to take advantage of the reduced rate of spread by cutting containment lines; otherwise, the fire may slow only temporarily and then keep spreading, he said.

    And yet, Ingalsbee said, research has shown that retardant is often dropped in the heat of the afternoon during the extended attack of large fires burning on steep, densely forested slopes in remote areas where ground crews can’t reach, or when fire behavior is so intense that it’s too dangerous for ground crews to engage.

    “The Forest Service feels pressure to do something, as much for public relations as any operational benefit,” he said. “But it’s just a big airshow.”


  2. I don’t have any answers but I have seems tens of millions of dollars of useless mud drops on fires. I see tax dollars and agency dollars just uselessly spent.

    Are there good drops where they are needed, absolutely and maybe the majority. But seeing a line being painted by VLATs that will never see fire is disheartening.

    1. The Equal Access to Justice Act pays for our attorneys from the private bar (FSEEE has no in-house lawyers), but only if the government’s position “is not substantially justified.” In other words, it’s not enough to win — the government’s position has to be out to lunch.

      EAJA is used by private industry and individuals much more than by environmental groups. The law is an important part of the checks-and-balances that help assure our government does not become an unaccountable, authoritarian tyranny. While I acknowledge that some people (authoritarian tyrants and those who like ’em) would prefer that outcome, it is antithetical to our nation’s founding principles.

      1. Just curious, Andy, maybe you can help us out here.

        • Net worth: A party must meet the threshold requirement of having a net worth not in excess of $7 million for any owner of an unincorporated business … or organization.
          28 U. S. C. §2412(d)(2)(B)).

        I’m guessing FSEEE is worth less than $7 million?
        What if you had inhouse attorneys, though, rather than CWN attorneys? That wouldn’t bump your net worth over $7 million would it?

        And what’s the total that taxpayers have paid you over the years? And how much did your lawsuit over the Cramer Fire cost us?

        1. Instead of suggesting that FSEEE lawsuits have cost taxpayer money, perhaps you should ask, “Why does the Forest Service waste taxpayer money by violating federal law?” The only way to hold government agencies accountable for violating the law is by filing lawsuits. FSEEE wouldn’t have a track record of winning lawsuits against the Forest Service if the Forest Service simply followed the law; therefore, the Forest Service is responsible for wasting taxpayer money, not FSEEE.

        2. FSEEE is a 501(c)(3) non-profit corporation. Here is our IRS Form 990. It discloses our assets, liabilities, and expenditures.

          FSEEE has saved taxpayers millions in fire retardant costs by limiting its use to protect water quality and critical habitat for threatened and endangered species.

  3. “FSEEE supports retardant use as a firefighting tool where its use is proven safe and effective in accomplishing incident objectives and complies with relevant state and federal law.”

    For those interested in learning more about FSEEE’s position, please read our comments on the 2022 draft supplemental EIS.

    PS: FSEEE is 3-0 in fire retardant-related lawsuits, including the latest Clean Water Act case (citations available upon request). The judge ruled in FSEEE’s favor that the Forest Service is violating the Clean Water Act. It’s a sad state of affairs when the federal agency charged with conserving our national forests, which were created largely to protect water, is found to be violating chronically our nation’s most important clean water law. Think about it.

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

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

      1. Thanks, Kelly, for this trip down memory lane. Although I don’t know the point you’re trying to make, I suspect it’s some variation of “frivolous lawsuits” or “serial litigator.” FSEEE won the vast majority of the cases you list, as explained below. Can we agree that our government should follow the law?

        United States District Court, Montana Oct 11, 2022 9:22cv168:

        Forest Service violated the Clean Water Act by discharging fire retardant into water.

United States District Court, Oregon Aug 18, 2021 6:21cv1228:

        Forest Service violated the National Environmental Policy Act by failing to disclose environmental effects of post-fire logging along hundreds of miles of remote logging roads.

United States District Court, Washington Western Sep 15, 2017 3:17cv5747:

        Forest Service violated National Forest Management Act by failing to explain why private land instead of Olympic National Forest could not be used for Navy electronic warfare training, but error was deemed “harmless.”

US District Court for the Eastern District of Washington Aug 16, 2016 2:16cv293:

        Forest Service did not violate NEPA by logging a 30-mile long fuel break during suppression actions on the Wolverine Fire, notwithstanding that the fire did not come anywhere near the fuel break and end-of-season snow was falling on the fire during fuel break logging.

United States District Court, Oregon Jan 15, 2009 6:09cv6019:

        Bureau of Land Management withdraws Western Oregon Plan Revisions after FSEEE and others file suit alleging several environmental law violations.

United States District Court, Pennsylvania Western Nov 20, 2008 1:08cv323:

        FSEEE challenged notices-to-proceed issued by Forest Service to split-estate oil and gas owners and settled after Forest Service withdrew the notices.

United States District Court, Kentucky Western Jun 02, 2008 5:08cv91:

        Forest Service violated Stewardship Agreement Act when it delegated its special-use permitting authority to a private non-profit group.

US District Court for the District of Montana Mar 31, 2008 9:08cv43:

        Forest Service violated National Environmental Policy Act and Endangered Species Act in its use of aerial fire retardant.

US District Court for the Western District of Kentucky Jun 12, 2006:

        Same case as 5:08cv91 above.

US District Court for the District of Alaska Mar 30, 2006 3:06cv68:

        “The Forest Service concedes that the use of a categorical exclusion for the road projects at issue in this case was improper and constituted a violation of NEPA.”

US District Court for the District of Oregon Apr 22, 2005 3:05cv553:

        Case dismissed as moot because trees were cut before it could be decided.

US District Court for the District of Oregon Jan 19, 2005 6:05cv6015:

        FOIA does not obligate public disclosure of Forest Service employee names associated with Cramer Fire fatality investigative report.

US District Court for the District of Oregon Nov 08, 2004 3:04cv1628:

        The Forest Service violated the National Forest Management Act: “The Eastside Screens prohibit the logging of ‘live’ trees greater then 21 inches in diameter at breast height. Although the Forest Service categorizes many of the marked trees as ‘dying,’ the plain meaning of ‘live’ is still living, in other words, not dead.”

US District Court for the District of Montana Jul 08, 2004 9:04cv133:

        Case transferred to Oregon (see above 6:05cv6015).

US District Court for the District of Montana Dec 03, 2003 9:03cv199:

        FSEEE does not have standing to challenge Forest Service decision to out-source the review of public comments to a private contractor.

US District Court for the District of Montana Oct 14, 2003 9:03cv165:

        Forest Service violated NEPA and Endangered Species Act in its use of aerial fire retardant.

  4. Using retardant is an institution that will always be a part of the suppression system in WLF. It’s not the catch all that some of us would like to think it is, it’s far from it, it’s just another tool and when applied correctly it can be very effective….ie IA….keeping small fires small…..I was always very critical of using retardant on mega fires, a waste of taxpayers’ money. Air attack would make the statement we are going to build some retardant line that in all likelihood will do nothing, what should be said is we are going to waste a ton of money. Most ATGS folks are very responsible people and will tell you if they think it will not work. One drop in a waterway is one to many, and do not call it an accident when it happens, that is disingenuous to do so. Dropping retardant in the middle of nowhere is ludicrous, whenever possible retardant should be used when there are adequate ground resources to back it up, without boots on the ground it is very rarely effective. Not a real good look when our natural resource agencies are killing the fish. Very effective when used correctly, which in my opinion is most of the time, I could not imagine a time without the use of retardant…….just my opinion…..

  5. When your home (community) is being threatened the use of water alone in hot, windy, dry conditions is a waste of time unless you are dumping water enhanced foam from a CL 415 or a heavy helicopter. . Regardless of the findings, 200 feet of wetting is the most that you can accomplish per drop from either resource that will “hold” the fire in brush or timber for a few hours. Apple and oranges, tactical targets, water from scoopes and helicopters. Laying down a “barrier” of retardant for one quarter of a mile or longer LATs, DC10, 747. To bad the USFS isn’t interested in the 747 anymore.

  6. Surely there are alternatives? We tried to introduce PyroCool into Australia but failed because it is not on the President’s approved list of retardants. Very odd that its use in another country has to be approved by the U.S. PyroCool does not damage waterways.

    1. Very interesting. Have not heard of PyroCool. Where has it been used and does it compete Perimeter?

      1. Hi Scott – Interestingly, Bill Gabbert was on Global SuperTanker LLC’s 747 when it went to Chile. There were a number of his posts that specifically mentioned Pyrocool, but I can’t find the name Pyrocool in any of them.

        1-24-2017 -part of Bill Gabbert’s post “The aircraft is expected to depart from Colorado Springs sometime after 1330 MT on January 24 and should arrive in Santiago around 14 hours later after a stop in Houston to pick up a liquid fire suppression agent that will be mixed with water in the 19,200-gallon tank.”

        The 747 stopped to pick up 265 gallon totes of Pyrocool.

        1-28-2017 part of Bill Gabbert’s post “Elena told us the village was in danger, like the five firefighters, of being overrun by the fire until the SuperTanker used all 19,200 gallons of water to make one long drop between the fire and the village, saving it.”

        In Chile, the Pyrocool/water mix dropped from the 747 was credited with saving critical infrastructure as well as the town of Llico that was in the path of a wildland fire. This is the video link to the Pyrocool/water drop on Llico.

        Pyrocool is an environmentally preferable extinguishing agent (clean SDS and recipient of the USEPA’s prestigious Presidential Green Chemistry Challenge Award) that is used in direct attack to extinguish wildland fires.

        Pyrocool has been used at both ends of the airtanker spectrum -– 800 gallon SEATS and Global SuperTanker LLC’s 19,000-gallon 747.

        265 gallon totes of Pyrocool were carried in the lower hold of the 747 and 70 gallons of Pyrocool was pumped into the water in the tanks on the main deck.

        Retardant costs between $7.65 and $3.90 per mixed gallon depending on the tier of gallons you are in. Pyrocool’s cost is approximately $0.17 per mixed gallon and no mixing base is required.

        I am happy to provide any additional information including an April 2018 letter from the USFS stating the USFS lab got a legal opinion that its lab does not have to be accredited (it isn’t accredited), the QPL is only meant to be relied on by federal cooperators and the reason Phos-Chek enjoyed a sole source contract for a couple of decades was that the other retardants were more toxic than the new retardant (Phos-Chek s patented retardant). It should be noted that the older retardant passed the same “rigorous” USFS tests that Phos-Chek did, so it these older retardants are more toxic it is a result of relying on a non-accredited lab to perform scientific testing.

    2. I wonder if FSEEE has put any money into research and development of a safer retardant.

      1. The Rand Corporation has been there and done that. Water: “Both the National Model and the Local Resources Model found that the most cost-effective fleet of initial attack aircraft is dominated by scoopers, but airtankers play a niche role, particularly in fires that are not close to appropriate water sources.”

        Lo and behold, water isn’t a pollutant, so no Clean Water Act permit required to dump water into water. 🙄

  7. “This is like dumping cash out of airplanes, except that it’s toxic and you can’t buy anything with it because it doesn’t work.”

    Tell that to the people of Foresthill, California, whose town was saved last year by a massive air tanker show as the Mosquito Fire was at the town’s edge. If it hadn’t been for the retardant drops most of the town would have been gone.

    My own home was saved a few years ago as a series of large air tankers steered an encroaching fire (Lobo, 2017) away from us as they basically ‘painted’ a perimeter before the dozers could come in and cut line.

    Don’t tell me retardant drops don’t work. Anyone that says they don’t hasn’t seen the glow of a fire over a ridge a quarter of a mile away from their home while they pack up their pickup and pray.

  8. The issue of obtaining an EPA Clean Water Act permit now is practically moot since the SCOTUS decision last week which basically gutted the Clean Water Act and redefined what is a wetland.

    1. The SCOTUS decision was 9-0 that the EPA screwed the plaintiffs for 15 years by abusing the Clean Water Act to redefine a wetland.

      1. As I said, it was a unanimous decision. From the article you posted: “Four justices – Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, and Ketanji Brown Jackson – agreed that the CWA does not apply to the wetlands on the Sacketts’ lot, but they disagreed with the majority’s reasoning.”

  9. Shame it failed. No proof of operational retardant effectiveness. Retardant has become a belief system in the firefighting world and this article does nothing to inform readers of how much money is wasted for show.

    1. No proof? Because there isn’t a study?
      The proof is in the countless acres NOT burned because of retardant. Pictures show the proof. Of course is doesn’t work all the time, and can be wasted but your blanket statement is nothing more than an Andy Stahl opinion with mentally lazy propaganda. And obviously yours.


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