AGENCY BEHAVING BADLY
As fires burned through southern California at the end of October, a federal judge in Missoula, Montana, was none too happy with the U.S. Forest Service and its head, Undersecretary of Agriculture Mark Rey. Back in 2005, Judge Donald Molloy gave the Forest Service eighteen months to complete an environmental review of aerial fire retardant—a slurry of chemicals, primarily fertilizer, that is toxic to fish and some wildlife. The Forest Service wanted more time for the environmental review, which it had already prepared in draft form but refused to release to the public.
In making his ruling, Molloy warned the Forest Service that if it needed more time to negotiate with the plaintiff, Forest Service Employees for Environmental Ethics, under no circumstances should it wait until the “seventeenth month and twenty-ninth day” to ask for an extension.
Like clockwork, without having talked with FSEEE in advance, on the seventeenth month and twenty-ninth day before its deadline, the Forest Service asked Molloy for an extension to January 2008. The judge was not amused.
“I do not think the timing of the motion is fortuitous. Rather, 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. It isn’t, and it won’t be. As the Plaintiff suggests, the Defendant has created its own compliance problem. The Defendant must comply with [the National Environmental Policy Act].”
Although Molloy granted a brief extension, he also ordered that Rey appear in his court to answer contempt-of-court charges if the deadline was not met. On the revised due date, the Forest Service filed an environmental assessment, but it was missing the legally required Finding of No Significant Impact. FSEEE requested that the agency be cited for contempt. The next day, the Forest Service filed the missing finding, signed that day by Forest Service Chief Abigail Kimbell.
Judge Molloy responded to the flurry of paperwork with another sharply worded order.
“If on review I find there is noncompliance, I will reschedule the contempt hearing and Secretary Rey will be required to appear and show cause why he should not be held in contempt—and jailed—until the law and the Court’s Orders have been complied with.”
FSEEE argues that only an environmental impact statement can satisfy Molloy’s order to “comply with NEPA” because the environmental effects of retardant use are indisputably significant. The National Marine Fisheries Service appears to agree. In a biological opinion, it ruled that aerial fire retardant jeopardizes the continued survival of every threatened and endangered anadromous fish species (those that return to spawn in the waters where they were born) found on national forests coast-to-coast.
Other significant impacts from the retardant include harm to archaeological resources—Mesa Verde National Park, for example, is still recovering from a direct retardant hit that irreparably stained centuries-old dwellings. Retardant drops have impaired visual quality in wilderness areas, and the use of retardant has even impacted human lives—dozens of air tanker pilots have died in the line of duty. The Forest Service ignored all of these impacts.
At press time, Molloy had yet to rule on the contempt matter. Regardless of that ruling, FSEEE plans to challenge the environmental assessment and Finding of No Significant Impact in a second lawsuit.—Andy Stahl
Wild turkeys feed on crops left behind by commercial farmers. Photo © Land Between the Lakes
FARMING THE FORESTS
After Forest Service Employees for Environmental Ethics appealed commercial corn and soybean farming at the largest national recreation area east of the Mississippi, Land Between The Lakes supervisor Bill Lisowsky withdrew his April 2007 farming decision. It proved a short-lived victory, however, when Lisowsky reissued a new farming decision in September.
Like its predecessor, the new decision authorizes corn and soybean farming on several thousand acres of the area’s highest-quality bottomland. The decision also approves the use of more than twenty herbicides, pesticides and fungicides, in addition to petrochemical-based fertilizer.
The U.S. Forest Service claims the farming is necessary to provide food for deer and turkeys. Farmers are required to leave a small proportion of their crop in the fields as forage for wildlife. Needless to say, wildlife has thrived since well before corn and soybeans, both nonnative plants, were introduced to the area.
Two farmers hold the permits for the cultivated acres, which they farm each year. Corn and soybean prices have enjoyed a run-up in price as federal government incentives for plant-based energy inflate non-food demands for these crops. The two farmers also receive about $50,000 each annually in crop subsidy payments from the U.S. Department of Agriculture’s Farm Services Agency. Without these subsidies, the farmers would likely not continue planting crops on federal land.
FSEEE’s interest in farming on the national forests was sparked by former Forest Service environmental specialist Paul Schaefer. He and his wife, Daphne Sewing, worked at Land Between The Lakes after the Forest Service took over the area’s management from the Tennessee Valley Authority. Schaefer told FSEEE that he and Sewing transferred to the area to get in on the ground floor of the Forest Service’s newest national recreation area. It soon became apparent to them that the long-standing cozy relationship between the local farmers and the Tennessee Valley Authority was not in the best long-term interests of the area’s ecology and wildlife, such as indigenous amphibians and reptiles.
Schaefer appealed the Land and Resource Management Plan for the area, which he had helped author. He was also a plaintiff in FSEEE’s first Land Between The Lakes lawsuit, which forced the Forest Service to follow National Environmental Policy Act procedures regarding farming in the area. FSEEE has filed a second appeal of the new farming decision. Sadly, ßSchaefer passed away in October from a rare lung disease. FSEEE will continue to work toward environmentally responsible management in the area, as this committed activist would have wished.—AS
Forest Magazine | FSEEE
