Winter 2006. FSEEE victorious in retardant lawsuit. Tests reveal live trees. Welcome Marc.
Fire retardant drops will need to comply with the National Environmental Policy Act. Photo © Kari Brown
RETARDANT DROP NEEDS OVERSIGHT
In the thirty-five years since President Nixon signed the National Environmental Policy Act, the U.S. Forest Service, more than any other agency, has resisted its full disclosure mandate. The Forest Service has tried to avoid compliance with the Act for clear-cutting, pesticide spraying, wilderness development, off-road vehicle use, outfitting permits in wilderness areas and a host of other activities. As the Forest Service lost court case after court case, the agency has reluctantly incorporated NEPA into its decision making.
That is, in everything but firefighting. The Forest Service’s firefighting arm, which now accounts for about half the agency’s total spending, has never—not once, in thirty-five years—disclosed to the public the environmental effects of any of its fire suppression actions. Whether it is bulldozing miles of fire roads through wilderness areas or cutting down wildlife-sustaining trees during firefighting, the Forest Service has hidden from public scrutiny the ecological damage caused by wildland firefighting.
For the first time, in a lawsuit brought by Forest Service Employees for Environmental Ethics, represented by Mark Fink and the Western Environmental Law Center, a federal district court judge has ordered the Forest Service to analyze under NEPA one of its firefighting activities—the use of aerial fire retardant. In his thirty-five-page decision (available online at www.fseee.org/press/retardantorder.pdf), Judge Donald Molloy ruled that the Forest Service must assess in a NEPA document its use of fire retardant and must formally consult with the U.S. Fish and Wildlife Service regarding the effects retardant has on threatened and endangered species. Molloy noted that in a one-year period, aerial retardant was dumped into streams with threatened species at least eight times.
Each year the Forest Service dumps, on average, 15 million gallons of fire retardant and, in some years, as much as 40 million gallons. The retardant includes ammonia-based fertilizer and, in some brands, sodium ferrocyanide, and is highly toxic to fish. Studies by U.S. Geological Survey scientists have found that even relatively low levels of retardant concentrations in water—levels easily exceeded by an errant airplane drop—are toxic to fish and other stream organisms. In 2002, a single retardant spill in central Oregon killed more than 20,000 trout along a six-mile stretch of Fall Creek.
Judge Molloy noted in his decision that “All evidence suggests that the USFS was told by other agencies to consult NEPA on fire retardant issues,” and that “The decision not to involve NEPA appears to be a political decision.” A memorandum FSEEE obtained during the court case shows that the decision to break the law came directly from Undersecretary of Agriculture Mark Rey. But, it is also evident from the record that Rey had substantial support for his decision among the Forest Service’s firefighting managers.
FSEEE will be asking the judge for a time schedule to ensure the Forest Service promptly follows the law. In the meantime, use of aerial fire retardant can continue, as FSEEE has not requested an injunction barring its use. This is just the first step in a long-overdue public look at the Forest Service’s 100-year war on fire, and is best performed with cool heads—not during the heat of the blaze. — Andy Stahl
Waring, using a research technique he pioneered, measures plant water stress in trees in the Malheur National Forest. The test is being used to determine whether trees deemed dead by the Forest Service are indeed dead, or alive. Photo © Andy Stahl
DON’T JUDGE A TREE BY ITS COLOR
Early this fall, Forest Service Employees for Environmental Ethics received a call from Richard Waring, professor emeritus of forest science at Oregon State University. Waring was headed out to the Malheur National Forest to examine ponderosa pine trees marked as dead or dying in the Easy and High Roberts timber sales (see “Staying Alive on the Malheur,” Spring 2005, and Easy Gang ad, Fall 2005). As one of the world’s leading experts on the causes of tree death, Waring thought he could resolve the question of whether these trees were dead, dying or healthy. He invited us to come along, with one proviso: we would print the results of his investigation, whether he found that the trees were alive, as FSEEE alleges in our lawsuit, or dead, as the U.S. Forest Service claims.
It takes more than six hours to drive east from Eugene to Prairie City, Oregon, which provided plenty of time for a tree physiology lesson. Although his current research focuses on using satellite data to measure changes in photosynthesis on regional and global scales, Waring spent years studying the physiology of individual trees—and how the tree’s health is affected by fire, disease, drought, and other stresses. The so-called Scott guidelines, which the Malheur National Forest used to determine whether green ponderosa pine trees were dead or dying, are based on the hypothesis that heavy duff accumulations lead to scorching of the trees’ roots, leading to slow death of the trees. If the roots were damaged enough to kill a tree, Waring told us, the tree would show obvious signs of water stress.
After obtaining permission to visit the timber sales from the Prairie City Ranger District, we headed up into the forests surrounding the Strawberry Mountain Wilderness. To test the hypothesis that the trees were dying due to root damage, Waring took two sets of measurements of plant water stress. He used a shotgun to harvest needles from high in the pine trees, a now-common technique Waring pioneered. He inserted individual needles into a pressure chamber, and measured the amount of pressure necessary to force water out of the needles. At low levels of water stress, the needles require relatively little pressure to yield water. At high stress, the limited water in the needles is held much more closely, and it takes much more pressure to force the water out. After taking pressure chamber measurements, Waring extracted core samples of the trees’ sapwood, and placed them in vials. If the sapwood was conducting water, we would find a high relative water content. Waring took these samples back to the lab to measure the water content.
A week after our return, Waring sent us the results of his test. All of the contested trees—the green ponderosa pine trees the Forest Service has marked for cutting—were conducting water as though they were perfectly healthy. Waring wrote, “These results show that the sampled trees ranked by the Scott ratings as likely to die (and, thus, marked for logging) are, in fact, alive and healthy. The results call into question the reliability of the Scott ratings and argue for field validation and testing of the ratings system before it is applied operationally. The results conclusively reject the hypothesis that these trees suffered damage to root systems that threatens tree survival. In fact, the roots are performing normally, providing sufficient water to maintain sapwood moisture and transpiration rates at typical, healthy levels.”
How did the Malheur National Forest come to use a faulty ranking system for determining forest health? The Scott Guidelines relied on observable morphological features of the trees, such as percent trunk scorch. As Waring explained, these characteristics can be misleading; what may look to an observer like a damaging scorching of the trunk might be barely noticeable to a healthy, fire-adapted ponderosa pine. Much like in medicine, there is no substitute for the correct laboratory test. Waring wrote, “No conscientious physician would rely solely on a yellow pallor to begin treatment for jaundice without confirming the initial diagnosis with a laboratory urine test for bilirubin. Similarly, direct measure of a tree’s physiological processes can confirm or reject initial hypotheses of damage based on visual observations.” The techniques Waring used are well-known among plant physiologists, and are even described in papers cited by the original report that developed the Scott guidelines. Professor Waring sent his results to Forest Service colleagues, the Scott guidelines’ authors and the Malheur National Forest.
Waring and Oregon State Univeristy will sponsor a scientific conference on this issue in 2006. — Forrest Fleischman
WELCOME, MARC!
Forest Service Employees for Environmental Ethics welcomes Marc Fink, who joined our organization on September 1 as the FSEEE staff attorney. Marc graduated in 1995 from Lewis and Clark Law School with a certificate in environmental and natural resources law and has ten years of environmental litigation experience. He has won a number of significant cases against the U.S. Forest Service, and will represent FSEEE in most of our environmental litigation. Marc has opened an FSEEE office in Duluth, Minnesota, which will increase our presence in the upper Midwest. Prior to joining FSEEE, Marc was a staff attorney for the Western Environmental Law Center, where he focused on wildlife and forest cases.