Top forestry official faces contempt hearing

By JEFF BARNARD - AP Environmental Writer - 08/21/07

GRANTS PASS, Ore. -

If found in contempt, Agriculture Under Secretary Mark Rey, who oversees the U.S. Forest Service, could go to jail until the Forest Service complies with the court order to do the environmental review.

Noting that Rey had blocked implementation of an earlier review, U.S. District Judge Donald W. Malloy in Missoula, Mont., ordered Rey to appear in his court Oct. 15 unless the Forest Service completes the analysis before that time - an outcome Malloy deemed unlikely.

"It has been six years since Forest Service staff completed a 'retardant EA' - only to have higher-up officials embargo it," Malloy wrote in an order issued late Friday. "The time I am giving is likely to prove insufficient if: 1) the agency is simply unwilling to follow the law; or, 2) it is prevented from following the law by its political masters, as was the case when Under Secretary of Agriculture Mark Rey ordered that formal (Endangered Species Act) consultation regarding fire retardant not to occur."

Forest Service spokesman Joe Walsh said the agency was working on the analysis, but he could not say whether they would meet the new deadline, because it was two months away.

Rey did not immediately respond to a request for an interview.

Forest Service Employees for Environmental Ethics, an environmental group based in Eugene, filed the lawsuit in 2003, a year after more than 20,000 fish were killed when toxic retardant was dropped in Fall Creek in central Oregon.

Andy Stahl, executive director of the environmental watchdog group, said they asked the judge to specifically hold Rey, a former timber industry lobbyist who has been reshaping Forest Service policies to make it easier to log on national forests, responsible.

"I'm sure this order has got the government's attention," said Stahl. "I think they have to take a hard look at their 100-year war against wildfire and explore alternatives that will allow us to live with fire, and that is what they don't want us to do."

Stahl said the Forest Service appears to be immune legally from fines, but not from jail time to pressure them to complete the environmental review.

"You can throw them in jail to coerce future good behavior," Stahl said. "That's what the judge is talking about here."

In 2005, Malloy ruled that 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 environmental harm of using ammonium phosphate, a fertilizer that kills fish, as the primary ingredient in fire retardant dropped on wildfires.

In February 2006, the judge gave the Forest Service until Aug. 8 this year to comply, noting that if they needed more time, they were to contact the plaintiffs well in advance, and not come to him just before the deadline.

The request for an extension was filed on the final day.

"It seems as if the government is playing a not too funny game, betting that the court will be forced to grant the additional time and hoping the irony of the timing will be overlooked," the judge wrote. "The Forest Service cannot disregard the orders regarding the Endangered Species Act, and it must meet its legal obligations under NEPA and as ordered by this court."