Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

MISSOULA DIVISION

INTRODUCTION

1. This is a civil action for declaratory and injunctive relief. Defendant United States Forest Service (hereafter "Forest Service") has failed to prepare an "environmental assessment" ("EA") or an "environmental impact statement" ("EIS") to assess and disclose the environmental impacts of its regular use of chemical fire retardant in fighting wildfires on national forests, in violation of the National Environmental Policy Act ("NEPA"). The Forest Service has also failed to consult with the expert agencies (the United States Fish and Wildlife Service and the National Marine Fisheries Service) to insure that its regular use of chemical fire retardant is not likely to jeopardize the continued existence of any threatened or endangered species, or result in the adverse modification of their habitat, in violation of the Endangered Species Act ("ESA").

2. Plaintiff seeks a declaratory judgment and injunctive relief to remedy the violations complained of herein. Plaintiff also seeks an award of costs, including attorney and expert witness fees. See Equal Access to Justice Act, 28 U.S.C. § 2412(d); and the ESA, 16 U.S.C. § 1540(g).

JURISDICTION

3. Jurisdiction is proper in this Court under 28 U.S.C. § 1331 and 28 U.S.C. § 1346, because this action involves the United States as a defendant, and it arises under the laws of the United States, including NEPA, 42 U.S.C. §§ 4321, et seq.; the ESA, 16 U.S.C. §§ 1531, et seq.; and the Administrative Procedure Act, ("APA"), 5 U.S.C. §§ 701, et seq. In addition, this Court has jurisdiction over Plaintiff's ESA claim pursuant to 16 U.S.C. § 1540(g). An actual, justiciable controversy exists between Plaintiff and Defendant. The requested relief is proper under 28 U.S.C. § 2202, 5 U.S.C. §§ 705 & 706, and 16 U.S.C. § 1540(g).

4. In compliance with 16 U.S.C. § 1540(g)(2), on May 5, 2003, Plaintiff gave notice of the ESA violations specified in this complaint and of its intent to file suit to the Forest Service, along with Secretary of the Interior Gale Norton, Secretary of Commerce Don Evans, and the Attorney General of the United States. A copy of the letter is attached hereto as Exhibit 1. Sixty days have passed since the notice was served, and the violations complained of in the notice letter are continuing at this time. The Forest Service remains in violation of the ESA.

VENUE

5. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(e). Defendant Forest Service has its headquarters for Region 1, the Northern Region, in this District. The Forest Service regularly uses chemical fire retardant to fight wildfires on national forests within this District. 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 District. The Forest Service also has a Fire Sciences Lab and Smokejumper Base in this District. Plaintiff has members who reside in this District, and who have been injured by the Forest Service actions and activities complained of herein.

6. The case is properly filed in the Missoula Division pursuant to L.R. 3.3. The Forest Service's Regional Office for Region 1, the Northern Region, is located in Missoula. The Forest Service's use of chemical fire retardant in fighting wildfires has occurred in part within the Missoula Division. The chemical retardants used by wildland firefighting agencies are tested and approved by the Missoula Technology and Development Center. The Forest Service's Fire Sciences Lab and the Missoula Smokejumper Base are also located in Missoula. Plaintiff has members who reside within the Missoula Division, and who have been injured by the Forest Service actions and activities complained of herein.

PARTIES

7. Plaintiff Forest Service Employees for Environmental Ethics ("FSEEE") is a nonprofit organization, with its principal place of business in Eugene, Oregon. FSEEE is comprised of thousands of concerned citizens, present, former and retired Forest Service employees, and other resource managers. FSEEE's mission is to forge a socially responsible value system for the Forest Service based on a land ethic that ensures ecologically and economically sustainable resource management. FSEEE members hold the Forest Service accountable for responsible and legal land stewardship.

8. Plaintiff's members hike, fish, camp, photograph scenery and wildlife, and engage in other vocational, scientific, and recreational activities throughout the national forest system, including Montana. Plaintiff's members derive recreational, inspirational, scientific, and aesthetic benefit from their activities within these national forests. Plaintiff's members intend to continue to use and enjoy these and other areas on the national forests frequently and on an ongoing basis in the future, including this summer.

9. The aesthetic, recreational, scientific, and religious interests of the Plaintiff's members have been and will be adversely affected and irreparably injured if the Forest Service continues to act and fails to act as alleged herein. These are actual, concrete injuries caused by the Forest Service's failure to comply with mandatory duties under NEPA, the ESA, the APA, and other federal laws. The injuries would be redressed by the relief sought.

10. Plaintiff has exhausted any available administrative remedies. Reviewable final agency action exists and is subject to this Court's review under 5 U.S.C. §§ 702, 704, and 706.

11. Defendant Forest Service is an agency of the U.S. Department of Agriculture. It and its officers are responsible for the lawful management of the national forest system.

SUMMARY OF FACTS AND GENERAL ALLEGATIONS

Wildfire and Fire-Fighting on the National Forests

12. Like wind and rain, fire is a ubiquitous, natural phenomenon in forests throughout North America. For national forests across the western United States, fire has been a major evolutionary force for thousands of years. Native plant and animal species on the national forests have evolved with fire, and many species are adapted to, if not dependent upon, fire's periodic occurrence.

13. In fire-adapted ecosystems, fire regulates biotic productivity and stability in ways that cannot be fully emulated by mechanical or chemical means. In the absence of fire, these fire-adapted forests have undergone significant changes in species composition and structure. These changes have predisposed extensive forested areas to epidemic insect infestations, disease outbreaks, and severe stand-replacing wildfires.

14. For nearly one hundred years, the Forest Service has had a policy of extinguishing all wildfires on national forests as soon as possible. As a result of the all-out effort to suppress fires, the annual acreage consumed by wildfires in the lower 48 states dropped from 40 to 50 million acres a year in the early 1930s to about 5 million acres in the 1970s. During this time, firefighting budgets rose dramatically and firefighting tactics and equipment became increasingly more sophisticated and effective.

15. Decades of aggressive firefighting and fire suppression have drastically changed the structure, characteristics, and fire behavior of western forests.

16. Decades of aggressive firefighting on national forests has resulted in thousands of injuries and hundreds of deaths for employees of the Forest Service and other federal agencies, including airplane and helicopter pilots who have died while dropping chemical fire retardant.

17. Fighting forest fires is currently among the most prominent land management tasks in which the Forest Service engages. From 1994 to 2001, the Forest Service fought, on average, over 10,000 wildfires per year on national forests.

18. Fighting forest fires is currently among the most expensive land management tasks in which the Forest Service engages. In Fiscal Year 2001, the Forest Service was appropriated $600 million by Congress to prepare to fight fires (e.g., to acquire personnel and materials) and another $320 million to fight forest fires, for a total firefighting appropriation of almost $1 billion.

The Environmental Impacts of the Forest Service's Use of Chemical Fire Retardant in Fire-Fighting Operations

19. In fighting fires, the Forest Service regularly uses and relies on chemical fire retardant. The Forest Service uses an average of 15 million gallons of fire retardant each year to fight wildfires, and in some years, as many as 40 million gallons have been used. The vast majority of fire retardant is dumped by the Forest Service out of airplanes or helicopters.

20. According to the National Interagency Fire Center, the purpose of chemical fire retardant is to slow the fire down in order to give ground support forces the opportunity to build firelines.

21. The retardant used by the Forest Service is manufactured from fertilizer, which is highly corrosive without an inhibiting agent in the formulation. The Forest Service therefore often uses the FIRE-TROL product line of retardant, which uses sodium ferrocyanide as a corrosion inhibitor. When sodium ferrocyanide is mixed or dissolved in water and exposed to UV radiation, it breaks down to form hydrogen cyanide (HCN), which is extremely toxic to aquatic life, and cyanide ions (CN).

22. The cyanide that frequently results from chemical fire retardant is in addition to the natural amounts of cyanide that is released during wildfires.

23. All fire retardants and foams used by the Forest Service, not just those containing sodium ferrocyanide, can be harmful to the aquatic environment. The fertilizer contained in long-term retardants consists of ammonia and phosphate or sulfate ions. Studies show that a single retardant drop directly into a stream may cause a sufficient ammonia concentration in the water to be lethal to fish and other aquatic organisms.

24. The Forest Service regularly uses significant amounts of chemical fire retardant in fighting individual wildfires. For instance, in fighting the 2000 Bitterroot Fire on the Bitterroot National Fire in Montana, the Forest Service dumped approximately 500,000 gallons of fire retardant on the fire. In addition, in fighting the Big Bar Complex Fires on the Six Rivers National Forest in California in August and September, 1999, the Forest Service used at least 280 tons of chemical fire retardant.

25. Chemical fire retardant is often applied to environmentally sensitive areas, including areas that may contain endangered, endangered, or sensitive species, including salmon, steelhead, and bull trout.

26. Each year, chemical fire retardant is discharged into streams and waterways on national forests. For example, on or about August 26, 2003, an air tanker under contract to the Forest Service dropped chemical retardant into Bacon Rind Creek while fighting the Rathbone Fire. Bacon Rind Creek is located in Montana and flows east into the Gallatin River from Yellowstone National Park's west boundary. In addition, while fighting the Moolack Complex Fire in 1996, the Forest Service dumped chemical fire retardant into Waldo Lake in central Oregon, which is commonly recognized as one of the most pristine lakes in the world.

27. The chemical fire retardants that are regularly used by the Forest Service have resulted in significant fish kills on numerous occasions. For instance, during fire-fighting operations for the Bircher Fire in southwest Colorado in July, 2000, fire retardant was dumped directly into the Mancos River, resulting in a major fish kill, with hundreds of dead fish reported in the water.

28. In addition to adverse impacts to water quality and fish, chemical fire retardant can be harmful to and contaminate other important forest resources, including soils. The fertilizer contained in fire retardant may, under specific conditions, cause nitrate poisoning in animals.

29. The Forest Service at times drops chemical fire retardant on fire-fighters and other workers, which may cause impacts to human health.

30. Chemical fire retardant enters streams, waterways, and sensitive areas for a number of reasons, including misplaced drops, drift, and the runoff of chemicals applied by aircraft. Location, terrain, and safety issues can also result in the application of retardant to sensitive areas.

31. The Forest Service has been using and relying on fire retardants to fight wildfires since the 1950s. The adverse effect of chemical fire retardants on the environment has been a concern of fire control officials since the very beginning of the retardant program. The Forest Service has been aware that chemical fire retardant can result in significant fish kills since at least the 1970s.

32. The Forest Service has never prepared an EA or EIS, pursuant to NEPA's public participation requirements, to disclose and address the environmental impacts of its use of chemical fire retardant. The Forest Service has not requested comments from the public concerning its use of chemical fire retardant, or otherwise involved the public in its decision making process concerning the use of chemical fire retardant. The Forest Service has not considered alternatives to its regular use of chemical fire retardant in fire-fighting operations. The Forest Service has not consulted with other federal or state agencies with respect to the environmental impacts of its use of fire retardant.

33. The Forest Service has prepared an "internal" environmental assessment ("Internal EA") concerning the environmental impacts of its regular use of chemical fire retardant when fighting fires on national forests. The Internal EA, however, was not prepared in compliance with NEPA procedures, has not been released to the public, and has not been provided to Plaintiff upon request.

34. The Forest Service continued to aggressively fight wildlfires on national forests during the summer, 2003, and continued to use and rely on chemical fire retardant. The Forest Service plans to continue aggressively fighting wildfires on national forests during the summer, 2004, and plans to continue to use and rely on chemical fire retardant during its fire fighting operations.

The Forest Service's ESA Consultation Regarding Its Use of Fire Retardant

35. Section 7 of the ESA requires federal agencies to consult with the United States Fish and Wildlife Service ("USFWS") and/or the National Marine Fisheries Service ("NMFS")⁽¹⁾ to insure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of any endangered or threatened species, or result in the destruction or adverse modification of their critical habitat. 16 U.S.C. § 1536(a)(2). To facilitate compliance with this section, federal agencies are often required to prepare a "biological assessment" to identify threatened or endangered species that may likely be affected by an agency action. 16 U.S.C. § 1536(c).

36. In April, 2000, the Forest Service and other agencies developed "Guidelines for Aerial Application of Fire Retardant and Foams in Aquatic Environments." Pursuant to the Guidelines, the aerial application of retardant beyond 300 feet of a waterway is presumed to avoid adverse effects to aquatic systems. The Guidelines have multiple exceptions, however, allowing discharges over waterways when alternative tactics are not available due to terrain constraints, congested areas, life or property concerns, lack of ground personnel, or when potential damage to natural resources outweighs possible loss of aquatic life.

37. In October, 2000, the Forest Service prepared a "biological assessment/evaluation" to identify the effects of applying the Guidelines to federally listed threatened and endangered species. The Forest Service determined that implementing the Guidelines from August, 2000, to December, 2001, may affect, but is not likely to adversely affect threatened and endangered species. According to the biological assessment/evaluation, in April, 2000, after "emergency consultation procedures," USFWS and NMFS gave "conditional concurrence" on the use of the "interim" Guidelines.

38. On February 27, 2001, the Forest Service requested concurrence from USFWS concerning the continued use of the Guidelines until December, 2003. In its request, the Forest Service notified USFWS that additional studies of fire retardant were underway, including a study that was attempting to replicate an earlier study under simulated field conditions. At the conclusion of the new studies, a new risk assessment for retardant use was to be completed, which was anticipated by spring 2003.

39. On June 6, 2001, USFWS responded that its April 20, 2000, temporary approval of the Guidelines provided that the Forest Service and other agencies conduct on-the-ground studies to gather additional information on the efficacy of the Guidelines and assessments of the effects to aquatic species resulting from the use of fire retardants and foams during 1999 and 2000. In addition, during the April, 2000, emergency consultation on the aerial application of fire retardants, the Forest Service and other agencies committed to completing a programmatic consultation on the use of fire retardant chemicals. Since the programmatic consultation on fire retardant has not occurred, and because the other studies were not yet completed, USFWS was only willing to extend its concurrence on the use of the Guidelines until December 31, 2002.

40. In June, 2002, the United States Geological Survey completed one of the fire retardant studies, titled "Environmental Implications of Fire-Retardant Chemicals." The study confirmed that the presence of sodium ferrocyanide consistently increases the toxicity of chemical fire retardants. Other findings included that ultraviolet radiation significantly increases the toxicity of fire retardant containing sodium ferrocyanide, lethal concentrations of cyanide were observed during stream tests, and the toxicity of fire retardants may persist in rainwater runoff from treated areas.

41. The Forest Service has not reinitiated or requested consultation from USFWS or NMFS on the April, 2000, Guidelines, despite the important findings in the subsequent fire retardant studies, and even though the previous USFWS concurrence on the use of the Guidelines has expired. The Forest Service has also still not requested programmatic consultation from USFWS and NMFS on the Forest Service's continued use of and reliance on chemical fire retardant in its seasonal fire-fighting efforts.

CLAIMS FOR RELIEF

CLAIM 1 - NEPA AND THE APA

42. Plaintiff hereby incorporates by reference all preceding paragraphs.

43. NEPA requires federal agencies to prepare an "Environmental Impact Statement" ("EIS") for any proposed major federal action that may significantly affect the quality of the human environment. 42 U.S.C. § 4332(2)(C). The EIS must include an analysis of any adverse environmental impacts that cannot be avoided should the project be implemented, alternatives to the proposed action, and any irreversible and irretrievable commitment of resources which would be involved if implemented. Id.

44. Prior to preparing an EIS, the agency must consult with and obtain the comments of any federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. 42 U.S.C. § 4332(2)(C).

45. To determine whether a proposed action may significantly affect the quality of the environment and require an EIS, the agency may first prepare an "environmental assessment" ("EA"). 40 C.F.R. §§ 1501.3, 1501.4.

46. The Forest Service's use of chemical fire retardant in fighting fires on national forests constitutes a major federal action that significantly impacts the quality of the environment.

47. The Forest Service has failed to prepare an EIS, or an EA, to assess and disclose the environmental impacts concerning its regular use of chemical fire retardant during fire-fighting operations, in violation of NEPA. 42 U.S.C. § 4332(2)(C); 40 C.F.R. §§ 1501.3, 1501.4.

48. The Forest Service has failed to develop or consider alternatives to its regular use of chemical fire retardant in fire-fighting operations, in violation of NEPA. 42 U.S.C. § 4332(2)(C), see also 42 U.S.C. § 4332(2)(E).

49. The Forest Service has failed to consult with other federal agencies that have special expertise with respect to the environmental impacts of chemical fire retardant, in violation of NEPA. 42 U.S.C. § 4332(2)(C).

50. The Forest Service's failure to comply with NEPA for its use of chemical fire retardant constitutes arbitrary and capricious agency action, is an abuse of discretion, and is contrary to law and to procedures required by law. 5 U.S.C. § 706(2)(A), (D).

51. The Forest Service's failure to prepare an EA or EIS for its use of chemical fire retardant constitutes agency action unlawfully withheld or unreasonably delayed within the meaning of the APA. 5 U.S.C. § 706(1).

CLAIM 2 - NEPA AND THE APA

52. Plaintiff hereby incorporates by reference all preceding paragraphs.

53. NEPA requires agencies to insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken. 40 C.F.R. § 1500.1. Public scrutiny is essential to implementing NEPA. Id.

54. Federal agencies must make diligent efforts to involve the public in preparing and implementing NEPA procedures. 40 C.F.R. § 1506.6(a).

55. Federal agencies must involve environmental agencies and the public, to the extent practicable, in preparing environmental assessments. 40 C.F.R. § 1501.4.

56. Federal agencies must provide public notice of the availability of environmental documents so as to inform those persons and agencies who may be interested or affected. 40 C.F.R. § 1506.6(b). "Environmental documents" include environmental assessments and findings of no significant impact. 40 C.F.R. § 1508.10. In the case of an action with effects of national concern, notice must include publication in the federal register. 40 C.F.R. § 1506.6(b)(2).

57. Agencies must "solicit appropriate information from the public" in preparing environmental documents, including environmental assessments. 40 C.F.R. § 1506.6(d).

58. The Forest Service failed to make diligent efforts to involve the public in preparing its Internal EA for its use of chemical fire retardants. 40 C.F.R. §§ 1506.6(a), 1501.4. The Forest Service failed to provide the required public notice of the availability of the Internal EA. 40 C.F.R. § 1506.6(b). The Forest Service failed to solicit appropriate information from the public in preparing its Internal EA. 40 C.F.R. § 1506.6(d).

59. The Internal EA pertains to an action with effects of national concern, and therefore the Forest Service's failure to provide the required publication of the EA and FONSI in the Federal Register violated NEPA. 40 C.F.R. § 1506.6(b)(2).

60. The Forest Service's failure to make diligent efforts to involve the public, provide public notice, and publish notice in the federal register, for the Internal EA constitutes arbitrary and capricious agency action, is an abuse of discretion, and is contrary to law and to procedures required by law. 5 U.S.C. § 706(2)(A), (D).

CLAIM 3 - THE ENDANGERED SPECIES ACT (ESA)

61. Plaintiff hereby incorporates by reference all preceding paragraphs.

62. The ESA requires federal agencies to consult with USFWS and NMFS to insure that any action authorized, funded, or carried out by the agency is not likely to jeopardize the continued existence of any threatened or endangered species, or result in the adverse modification of critical habitat for such species. 16 U.S.C. § 1536(a)(2). "Action" is defined as all activities or programs of any kind authorized, funded or carried out, in whole or in part, by federal agencies, and includes the promulgation of regulations, actions that may directly or indirectly cause modifications to the land, water, or air, and actions that are intended to conserve listed species or their habitat. 50 C.F.R. § 402.02.

63. To facilitate compliance with the ESA consultation requirement, federal agencies must ask USFWS or NMFS whether any listed or proposed species may be present in the area of the proposed action. 16 U.S.C. § 1536(c)(1); see also 50 C.F.R. § 402.12(c). If listed species may be present, the agency must prepare a biological assessment to identify any threatened or endangered species which is likely to be affected by such action. Id.; see also 50 C.F.R. § 402.12.

64. The Forest Service's regular use of chemical fire retardant in fighting fires on national forests is an "agency action" under Section 7 of the ESA. The Forest Service has failed to consult with USFWS or NMFS to insure that the continued and regular use of chemical fire retardant in fighting fires on national forests is not likely to jeopardize the continued existence of any listed species or result in the adverse modification of the critical habitat for such species. 16 U.S.C. § 1536(a)(2).

65. The Forest Service has violated, and remains in violation of Section 7 of the ESA for failing to consult with USFWS or NMFS concerning the regular use of chemical fire retardant in fighting fires on national forests. 16 U.S.C. § 1536.

RELIEF REQUESTED

WHEREFORE, the Plaintiff respectfully requests that this Court:

A. Declare that the Forest Service's failure to prepare an EA or EIS to assess and disclose the impacts of its regular use of chemical fire retardant violates NEPA;

B. Declare that the Internal EA prepared by the Forest Service concerning its use of chemical fire retardants violates NEPA;

C. Declare that the Forest Service has violated and continues to violate Section 7 of the ESA;

D. Grant Plaintiff injunctive relief to compel the Forest Service to comply with applicable environmental statutes, prevent irreparable harm, and satisfy the public interest;

E Award to Plaintiff its costs, expenses, expert witness fees, and reasonable attorney fees under applicable law; and

F. Grant Plaintiff such further relief as may be just, proper, and equitable.

DATED this ___ day of October, 2003. Respectfully submitted,