The National Park Service plans to replant sequoia groves in Sequoia and Kings Canyon National Parks, where fires in 2020 and 2021 caused lasting damage to sequoia groves on federal land, but environmentalist groups in California say it would set a legal precedent and be a huge mistake.
Four groups filed suit against the NPS on November 17, saying the agency’s efforts violate the law, because designated wilderness areas prohibit human involvement in the ecosystem — even if it includes planting trees.
Surveys of sequoias on NPS land found that in 2020 and 2021, almost 20 percent of all giant sequoias in their natural range that were over 4 feet in diameter or more were killed by fire (and neglect) or were expected to die in the next few years. In 2020, surveyors estimated that 10 to 14 percent of the entire Sierra Nevada population of giant sequoias over 4 feet in diameter were killed in the Castle Fire. The following year, the KNP Complex and the Windy Fire burned between 2200 and 3600 sequoias over 4 feet in diameter; those sequoias were killed or are expected to die within 5 years.
CBS News reported on the project a year ago:
The NPS announced the seedling-planting project and said it was “concerned that natural regeneration may not be sufficient to support self-sustaining groves into the future, particularly as the fires killed an unprecedented number of reproductive sequoia trees in the groves themselves.”
Chad Hanson, director of the John Muir Project, one of the groups that is suing, disputes that conclusion. Sequoias actually “depend on high-intensity fire in order to reproduce effectively,” Hanson told CNN. “Nature doesn’t need our help. We are not supposed to be getting involved with tending it like a garden.”
Advocates at Wilderness Watch, Sequoia Forest Keeper, and the Tule River Conservancy first sued the NPS in September to stop a separate project by the agency to cut and burn trees in the same designated wilderness areas, cutting on about 1000 acres of forest land and designating 20,000 additional acres as available to “manager-ignited fires and associated activity,” according to the complaint.
“Recently burned groves are RESTORING THEMSELVES — as they have done for more than one hundred centuries!” according to the Sequoia Portal, whose mission is to add existing roadless areas of the Sequoia National Park, National Forest, and National Monument to the National Wilderness Preservation System. “Millions of sequoia seedlings carpet these burned groves,” says the Portal. “Do they think the public is stupid enough to think that any agency can replace full-grown 3200-year-old red barked sequoias? ALL the iconic ancient giants started as tiny seedlings, and they are already growing — immediately seeded by their scorched giant sequoia parents! As it has always been in the groves. And the majority of the largest giants are NOT DEAD.”
The John Muir Project, a nonprofit focused on protecting federal forests, joined the lawsuit on November 17, amending it to include the sequoia replanting project as part of the complaint. The groups now jointly accuse the NPS of illegally encroaching on federally protected land in both of the projects.
The complaint in U.S. District Court in Fresno is an addendum to a suit filed earlier this year that challenged the NPS for other work in wilderness areas of Sequoia & Kings Canyon National Parks. Besides planting seedlings, NPS crews have been thinning and burning around sequoia groves to reduce wildfire risk, according to the San Francisco Chronicle.
NPS staff declined to comment on the lawsuit, but confirmed that replanting had already begun in two sequoia groves back in mid-October, before the latter complaint was filed.
“The Park Service has to abide by the 1964 Wilderness Act,” said Kevin Proescholdt, conservation director at Wilderness Watch. “We should still allow these natural ecosystems to respond as they want to the changes brought about by the changing climate. The more that agencies will allow natural fire to burn and perform its role, the better these wilderness forests will be,” he said.
The groups claim the projects were approved after required processes of environmental review and public engagement were circumvented by declaring they were “emergency” projects that would not have to meet those requirements.
The NPS said in its project announcement it would replant only in areas that field surveys showed insufficient natural regeneration to successfully re-establish, as they would if they hadn’t experienced severe fire effects in recent fires.
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.
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.
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.
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.
“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.
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.
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.
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.”
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.
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.
Two lawsuits have been filed in federal court for firing operations that burned private land during the Chetco Bar Fire that eventually burned more than 191,000 acres on land managed by the US Forest Service and private landowners in southwest Oregon.
The suit, under the Tucker Act for inverse condemnation, seeks compensation for “property taken” by the USFS in its use and management of the Chetco Bar Fire. It alleges that between August 17 and 20, 2017 the USFS conducted firing operations on their property “to achieve its natural resource management objectives, and to otherwise manage its lands”.
“USFS employed planned ignitions in the form of large-scale backfires designed to artificially grow the naturally occurring wildfire to sizes much larger than if it has been left to burn naturally,” say the twocomplaints filed October 21. “The large-scale planned ignitions on the Chetco Bar Fire ignored political and property boundaries and used Plaintiffs’ nonfederal resources as backfire fuel, imposing the costs of the natural resource management objectives upon Plaintiffs.”
The Chetco Bar Fire started from a lightning strike during a storm on June 24 and 25, 2017 and was first reported by an airline pilot 17 days later on July 12.
The attorney representing the landowners is Quentin Rhodes in Missoula, who is not your typical barrister. He worked as a wildland firefighter for eight seasons between 1987 and 1994, serving on the Helena Hotshot crew and later as a smokejumper at West Yellowstone and Missoula. He told Wildfire Today in 2012 that he was in the first planeload of jumpers on the South Canyon Fire in Colorado in 1994, the fatal fire on which 14 wildland firefighters were entrapped and killed. In 2012 he represented owners of a Montana ranch who won a $750,000 judgement against the state of Montana when firefighters on the Ryan Gulch Fire employed firing operations which burned 900 acres of the ranch’s land.
A lawsuit filed Tuesday alleged that the US Forest Service has polluted waterways by firefighting air tankers inadvertently dropping fire retardant in or near waterways in violation of the Clean Water Act and a policy adopted by the Forest Service and other federal agencies in 2011. The policy requires that retardant not be dropped within 300 feet of a waterway on federal land.
Fire Aviation has acquired photos and a video that reportedly show signs of retardant being dropped into Sespe Creek on the Los Padres National Forest 8 miles northeast of Ojai, California October 8, 2022. The photos were shot by Pete Deneen on October 12, 2022 at the 85-acre Howard Fire. The creek is designated a “wild and scenic river” and is in a wilderness area.
The photos show retardant on rocks and other objects very close to water in Sespe Creek.
Some organisms, including aquatic threatened and endangered species or their habitats, can be adversely affected by retardants. In addition, retardant in water is a pollutant.
According to US Forest Service data, between 2012 and 2019, the Forest Service discharged retardant on at least 376 occasions totaling 761,282 gallons from aircraft directly into national forest waterways.
In the video below Mr. Deneen explains that there were two locations where retardant was dropped very close to the creek. In one case the aircraft may have turned as it was dropping to follow the creek for several hundred yards, or a second drop accounted for the retardant in the waterway.
The lawsuit was filed Oct. 11 by the Forest Service Employees for Environmental Ethics, FSEEE. In the group’s complaint they are seeking:
A declaration that the Forest Service’s placement of retardant in waterways is a violation of the Clean Water Act.
An injunction “to compel the Forest Service to comply with applicable environmental statutes, prevent irreparable harm, and satisfy the public interest.”
Reimbursement for FSEEE’s costs, expenses, expert witness fees, and attorney fees.
“Such further relief as may be just, proper, and equitable.”
More about FSEEE’s history of protesting retardant, and the federal government’s policy of retardant avoidance areas established in 2011.
An environmental group filed a lawsuit in a Montana federal court Tuesday alleging that the US Forest Service has polluted waterways by inadvertently dropping fire retardant in or near waterways. The retardant was dropped by aircraft under contract with the Forest Service while assisting wildland firefighters on the ground.
The suit says government data released earlier this year showed more than 760,000 gallons of fire retardant was dropped into waterways between 2012 and 2019. The lawsuit alleges the continued use of retardant from aircraft violates the Clean Water Act and requests a judge to declare the pollution illegal.
The Forest Service has established retardant avoidance areas along waterways where the liquid is not supposed to be applied. This puts buffer zones around waterways and habitat for some threatened, endangered, and sensitive species in order to avoid applying retardant in those areas. When they were first established in 2011 it resulted in approximately 30 percent of USFS lands being off limits for retardant while fighting fire. There is an exception if human life or public safety is threatened. The policy was the result of an Environmental Impact Statement (EIS) that studied the use of retardant and how it affects water resources and certain plant and wildlife species. The EIS was written in response to a July, 2010 decision by U. S. District Court Judge Donald Molloy in a lawsuit filed in 2008 by the Forest Service Employees for Environmental Ethics.
The same organization, FSEEE, filed the new case yesterday. An attorney in Missoula, MT who specializes in environmental law, Tim Bechtold, will be representing FSEEE. Presiding over the case will be District Court Judge Dana Christensen. He joined the court in 2011 after a nomination from President Barack Obama. Before, he was a partner in the firm of Christensen, Moore, Cockrell, Cummings, and Axelberg, in Kalispell, Montana. One of the 15 practice areas the firm deals with today is environment and natural resources.
In 2012 FSEEE issued a statement criticizing the use of air tankers on fires, claiming it is “immoral”. The group argued that aerial firefighting is too dangerous and ineffective and that “retardant doesn’t save homes; proper construction and landscaping save homes.”
Linn County requests records about the suppression of the fire
A county in Oregon has filed a lawsuit against the U.S. Forest Service that is related to the Beachie Creek Fire that burned over 193,000 acres east of Salem, Oregon in September.
The Davis Wright Tremain law firm in Portland submitted a request September 28 on behalf of Linn county, requesting records related to the fire. The request cited the Freedom of Information Act (FOIA) which requires a federal agency to respond within 20 business days, unless there are “unusual circumstances,” or notify the party of at least the agency’s determination of which of the requested records it will release, which it will withhold.
About 12 percent of the Fire was in Linn County, with the rest in Marion and Clackamas Counties. The Linn-Marion county line is near Highway 22 close to the communities of Lyons, Mill City, Gates, Detroit, and Idanha where many structures were destroyed.
The Forest Service replied to the FOIA in a letter dated the next day, saying (and this is an exact quote):
Please be advised your request is not perfected at this time and we will be reaching out to you to discuss clarification once it has been to thoroughly review.
After not receiving the documents or apparently hearing nothing further from the Forest Service, the attorneys for Linn County filed a lawsuit November 2, 2020 in the U.S. District Court in Eugene, Oregon.
Below is an excerpt from the complaint:
During its first few days, USFS officials attempted to extinguish the fire, which at that point was 10 to 20 acres, but could not effectively utilize traditional means because the fire was burning on the side of a steep, densely forested mountain…The Beachie Creek Fire thus continued to burn at a relatively small size for days but became a conflagration in early September as conditions became windy and dry, jumping to 200 acres on September 1, 2020, then growing to 500 acres after that. When a windstorm that had been predicted for at least one week prior hit Labor Day night, the Beachie Creek Fire exploded, torching ancient rainforests in the Opal Creek area and roaring down North Santiam Canyon. The fire destroyed the communities of Mill City and Gates, decimated thousands of structures and claimed at least five lives.
The fire was reported August 16, 2020 in the Opal Creek Wilderness about six miles northwest of Detroit Lake in Oregon, about 38 miles east of Salem. According to records in the daily national Incident Management Situation Report and GIS data, the fire was:
–10 acres August 26, 10 days after it was reported;
–23 acres August 31, 15 days after it was reported;
–150 acres September 3, 18 days after it was reported;
–469 acres September 7, 22 days after it was reported; (just before the wind event that began that night).
Forest Service officials told the Statesman Journal it tried to put out the fire during its first few days, and that fire crews dumped “a ton of water” on it. They said they couldn’t safely get firefighters in to extinguish the blaze on the ground, which at that point was 10 to 20 acres, because it was burning on the side of a steep, densely-forested mountain.
“You have deep duff, significant litter and a ladder fuel,” [Rick Stratton, a wildfire expert and analyst] said. “That’s why it doesn’t matter how much water you put on it, it can hold heat. You have to have people on the ground working right there, in an area that elite firefighters turned down twice.”
Firefighters worried about flaming debris coming down the mountain and being unable to escape. Firefighter safety has been emphasized since 19 Granite Mountain Hotshots were killed in an Arizona wildfire.
A fixed wing mapping flight at 8:37 p.m. PDT September 9 found that in about 48 hours the fire had spread 25 miles to the northwest from its point of origin and had burned at that time 310,549 acres.
Many fires started in Oregon around August 16 from lightning that moved through northern Californian into Oregon. Conventional wisdom is that the Beachie Creek Fire was a result of the this storm, although the Forest Service has not officially disclosed the cause. Complicating the issue is the reports that the gale force winds of September 7 and 8 caused multiple power lines to fail, starting additional fires which eventually burned into the Beachie Creek Fire.
This fire and others in Oregon, California, and Colorado were crying out for limited numbers firefighters, engines, helicopters, and air tankers but the fire suppression infrastructure available fell far short of the need. This meant that after the wind subsided, putting the huge blazes out quickly was not possible — without rain. Stopping a fire pushed by very strong winds is not possible, regardless of the air power or ground-based firefighting resources available.
Much of Oregon was also in severe to extreme drought along with Nevada, Arizona, and Colorado. This resulted in the moisture content of the vegetation (or fuel) being low, making it receptive to igniting and burning more quickly and intensely than if conditions were closer to average.
Well over 1,000 structures burned. Some of the communities that were hardest hit included Detroit, Mill City, Santiam River, and Gates.
The information Linn County requested from the Forest Service was about the agency’s policy for managing fires, and the Beachie Creek Fire in particular. Some examples:
Contracts and documents relating to arrangements made with outside contractors for firefighting equipment and training in the Pacific Northwest;
Maps and records depicting all former “owl circles” and all locations of other endangered species habitat in the 2 years immediately preceding the Beachie Creek Fire;
Records declaring the Beachie Creek Fire a Prescribed natural Fire, a Management Ignited Fire or a Wildfire, and all records discussing or relating to that declaration;
Records illustrating the Suppression Response for the Beachie Creek Fire;
Records illustrating the Control Strategy for the Beachie Creek Fire;
Records relating to inputs to and outputs derived from the FLAME computer program or any other predictive computer analysis for the Beachie Creek fire for the period commencing on August 1, 2020, through the date records responsive to this request are provided;
All Social media posts discussing or describing the Beachie Creek Fire;
All current Forest Service Manuals in effect immediately preceding the Beachie Creek Fire and effective throughout the Fire Event.
Below is a description of the fire written by the U.S. Forest Service and posted on InciWeb:
“The Beachie Creek Fire was first detected on August 16, 2020 approximately 2 miles south of Jaw Bones flats in rugged terrain deep in the Opal Creek Wilderness. A Type 3 team was ordered to manage the fire on the day it was detected and implemented a full suppression strategy. A hotshot crew tried to hike to the fire within the first 24 hours. They were unable to safely access and engage the fire due to the remote location, steep terrain, thick vegetation and overhead hazards. Fire managers continued to work on gaining access, developing trails, identify lookout locations, exploring options for access and opening up old road systems. The fire was aggressively attacked with helicopters dropping water. A large closure of the Opal Creek area and recreation sites in the Little North Fork corridor was immediately signed and implemented. The fire remained roughly 20 acres for the first week. On August 23rd, the Willamette National Forest ordered a National Incident Management Organization (NIMO) Team to develop a long-term management strategy. This is a high-caliber team which has capacity to do strategic planning. The fire grew slowly but consistently and was roughly 200 acres by September 1st, fueled by hot and dry conditions.
“At the beginning of September, a Type 2 Incident Management Team (PNW Team 13) assumed command of the fire. The fire size was estimated to be about 500 acres on September 6th. On that day, the National Weather Service placed Northwest Oregon under a critical fire weather warning due to the confluence of high temperatures, low humidity and rare summer easterly winds that were predicted to hit upwards of 35 mph in the Portland area on Labor Day. The unique wind event on September 7th created an extreme environment in which the fire was able to accelerate. The winds were 50-75 miles per hour, and the fire growth rate was about 2.77 acres per second in areas of the Beachie Creek fire. This allowed the fire to reach over 130,000 acres in one night. Evacuation levels in the Santiam Canyon area went directly to level 3, which calls for immediate evacuation. Additionally, PNW Team 13 was managing the Beachie Creek Fire from their Incident Command Post established in the community of Gates. That evening, a new fire start began at the Incident Command Post forcing immediate evacuation of the Team and fire personnel. From the night of September 7th, these fires became collectively known as the Santiam Fire. Ultimately, the Santiam Fire name reverted back to Beachie Creek Fire in order to reduce confusion for the communities in the area. The Incident Command Post was re-established in Salem at Chemeketa Community College. At the end of the wind event, the Lionshead Fire also merged with the Beachie Creek Fire having burned through the Mount Jefferson Wilderness.
“After the night of the wind event, the Beachie Creek Fire was managed under unified command by PNW Team 13 and the Oregon State Fire Marshal and the focus shifted to recovery and preservation of life and property. On September 17th, a Type 1 IMT (SW Team 2) assumed command of the fire. Growth on the fire slowed and the fire reached 190,000 acres. A second Type 1 team (PNW 3) took over command of the Beachie Creek Fire, along with the Riverside Fire to the north, on September 29th. Evacuation levels were lowered or removed as fire activity slowed. At the beginning of October, seasonal fall weather moved over the fire producing several inches of rain. During these weeks, a BAER (Burned Area Emergency Response) team assessed the burned landscape and habitats to try to evaluate damage. On October 8th, PNW Team 8, a Type 2 team took over management of the fire. Focus efforts on the ground shifted from suppression and mop-up to suppression repair. On October 14, the fire was downgraded and transitioned command to local Type 3 Southern Cascades team. The acreage topped out at 193,573 acres. Closures remain in place to keep the public safe from hazards like falling trees and ash pits that can remain hot and smolder for months after the wildfire event.”
(end of excerpt)
The Forest Service is notorious for flagrantly violating the law in regards to the mandatory standards for providing information requested with a FOIA. They have been known to stall for years, or have simply refused to comply. Not every citizen seeking information from their government has a petty cash account with $400 for the filing fee, or the tens of thousands of dollars it could take to pay attorneys for a FOIA lawsuit. Our citizens deserve transparency. However, it also seems unusual to file a lawsuit approximately 26 business days, as Linn County did, after initially submitting the FOIA — just 6 days over the 20-day requirement.
An investigation should determine how much of an effect, if any, fires reportedly started by power lines had on the destruction of private property. It may turn out that some of the structures along the Highway 22 corridor were destroyed by fires sparked by power lines.
If, as appears to be the case, the suppression activity on the fire was less than aggressive for 22 days while it grew to 469 acres, it may have some similarities to the Chimney Tops 2 Fire that burned into Gatlinburg, Tennessee from Great Smoky Mountains National Park in 2016. After creeping along the ground on a hilltop for five days with no suppression activity except for some helicopter drops one afternoon, the 35-acre fire was pushed by strong winds into the city, causing the deaths of 14 people. Over 130 sustained injuries, and 1,684 structures were damaged or destroyed. Approximately 14,000 residents were forced to evacuate.