Legal battle rages over use of fire retardant

BUFFALO —A federal lawsuit that seeks to prevent the U.S. Forest Service from dropping aerial fire retardant into U.S. waterways could endanger Johnson County residents' lives and property, a local leader said last week.

Forest Service Employees for Environmental Ethics filed the lawsuit in Montana U.S. District Court in October last year. The suit accuses the Forest Service of violating the Clean Water Act, which prohibits the discharge of pollutants into U.S. waterways without a permit. The suit claims that fire retardant has been inadvertently dropped on or made its way into protected waterways, causing irreparable harm.

The plaintiffs have asked the court to prohibit the Forest Service from spilling retardant into waterways.

But the only way it can guarantee that no retardant enters waterways without a permit, the Forest Service wrote in its response, would be to cease using aerial retardant until such time that Environmental Protection Agency permits can be secured — a process that the agency estimates will take two and a half years.

Johnson County Commission Chair Bill Novotny said if the plaintiffs prevail, during those intervening years, firefighters would have their hands tied behind their backs, endangering life and property.

“This is a baseless, frivolous lawsuit that has nothing to do with protecting forest resources,” Novotny said. “It is a waste of time for federal and state governments to fight this. It's a critical tool when we have to call in an air asset. We shouldn't have to go out and file for a permit and wait for the EPA to respond because we know how responsive they are. This makes no sense other than a radical agenda against good forest management, range management and our ability to fight fires. This is going to endanger people's lives and property when you get down to it.”

Since 2011, the Forest Service has mapped out exclusion areas where it refrains from dropping retardant, including buffers around vulnerable species habitat and waterways. At the time, the EPA told the Forest Service that if pilots complied with the exclusion areas, the agency would not need a permit, as it would not be discharging retardant into waterways.

According to figures released by the agency last year, the Forest Service has dropped more than 760,000 gallons of retardant into water, both accidentally and under an agency directive that such drops are permissible if they protect human life or public safety.

The suit comes at a time when the use of fire retardant is up because of longer, more active fire seasons.

According to the Forest Service, approximately 102 million gallons of long-term fire retardant (approximately 56,868 drops) were aerially applied to National Forest System lands from 2012 to 2019.

During the same time period, the Forest Service reports that there were 106 fires in the Bighorn National Forest with approximately 19 retardant drops applying 33,452 gallons of retardant.

The Forest Service maintains that aerially applied fire retardant is one component of the agency's "integrated firefighting strategy.”

According to the USDA, applied fire retardant “reduces wildfire intensity and rate of spread, decreasing risks to firefighters, enabling them to construct firelines safely. In many situations, the use of retardant in concert with firefighters on the ground allows the Forest Service to safely meet its responsibilities to protect landscapes, resources, and people.”

In its response to the suit, the Forest Service stated that it cannot fight fires using aerial retardant while guaranteeing that no retardant will be dropped in any water.

According to the Forest Service, such instances of the aerial retardant dropping into water was less than 1% of all drops from 2012 to 2019.

The Forest Service wrote that it “has commenced the process to obtain Clean Water Act permits that will authorize the discharge of aerial fire retardant into waters, including entering a Federal Facilities Compliance Agreement with the United States Environmental Protection Agency (“EPA”).”

However, it anticipates that it may take two to three years to complete the permit process.

“Consequently, the Forest Service anticipates that it will have to discharge fire retardant to waters in limited circumstances until 2025 without a permit,” the agency says.

Though a number of California communities and agriculture and timber interest groups have filed petitions to intervene in the case, no Wyoming counties, municipalities or interest groups have filed petitions.

Novotny, who serves as president of the Wyoming County Commissioners Association, said all 23 counties in Wyoming are monitoring the lawsuit.

“Our hope is that this gets dismissed, but if that's not the case, we'll look at having potential involvement,” Novotny said. “Johnson County will certainly put pressure on Gov. (Mark) Gordon and his office to intervene on behalf of the state of Wyoming.”

Meanwhile, in the U.S. Senate, Wyoming Republican Sen. Cynthia Lummis has introduced the Forest Protection and Wildland Firefighter Safety Act of 2023 in response to the lawsuit.

If passed, the act would make it clear that the Forest Service doesn't need to seek a permit to drop retardant on fires.

“Radical environmental activists have no idea how dangerous it would be to take away the ability to use fire retardant during a wildfire,” Lummis said in a prepared statement shortly after introducing the legislation. “Wildland firefighters in Wyoming and throughout the West need to be able to use every tool available to them in order to control wildfires.”

Sens. Mike Crapo (R-Idaho), Jim Risch (R-Idaho), Steve Daines (R-Mont.) and Dan Sullivan (R-Alaska) joined Lummis as the bill's co-sponsors. Lummis is the sole Wyoming sponsor of the bill, which is currently awaiting a hearing before the Senate Environment and Public Works Committee.

In the same statement following the bill's release, United Aerial Firefighters Association President John Gould noted the association's "increasing concern” with the lawsuit.

“Fire retardant is a proven, essential tool in assisting wildland firefighters in their fight to contain, control and defeat wildfire,” Gould said. “As this lawsuit continues, with the potential to run into its second year, UAFA strongly supports Senator Lummis' legislation (...) which allows the federal, states and tribal governments to continue the use of aerially applied fire retardants.”

This story was published on April 6, 2023.