Case 9:22-cv-00168-DLC Document 1 Filed 10/11/22 Page 1 of 10

Timothy M. Bechtold
BECHTOLD LAW FIRM, PLLC
P.O. Box 7051
Missoula, MT 59807-7051
406-721-1435
[email protected]

Attorney for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
)
FOREST SERVICE EMPLOYEES )
FOR ENVIRONMENTAL ETHICS, ) Cause No.
)
Plaintiff, )
) COMPLAINT
vs. )
)
UNITED STATES FOREST )
SERVICE, )
)
Defendant. )
)

INTRODUCTION

1. In this Complaint Plaintiff Forest Service Employees for

Environmental Ethics (FSEEE) challenges the actions of Defendant United States

Forest Service on the agency’s discharge of aerial fire retardant into navigable

waters of the United States in violation of the Clean Water Act.

2. As more fully set forth below, FSEEE alleges here that the actions of

the Forest Service in this matter are arbitrary and capricious, an abuse of

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discretion, or otherwise not in accordance with law under the Clean Water Act

(CWA), Section 505, 33 U.S.C. §1365. FSEEE seeks declaratory and injunctive

relief to mitigate, redress, or avoid irreparable injury to the environment and

FSEEE’s interests under the law.

3. If FSEEE prevails, FSEEE will seek an award of costs and attorney

fees pursuant to the CWA and/or the Equal Access to Justice Act, 28 U.S.C. §

2412.

JURISDICTION

4. This action arises under the CWA, Section 505, 33 U.S.C. §1365 as

more fully set forth below. This Court has jurisdiction under 28 U.S.C. § 1331

(federal question); 28 U.S.C. § 1361 (mandamus); 28 U.S.C. §§ 2201-02

(declaratory judgment and further relief).

5. An actual, justiciable controversy exists between Plaintiff and

Defendant. Plaintiff has exhausted any administrative remedies. This Court has the

authority to grant the relief requested.

VENUE

6. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(e) and LR

3.2. The Forest Service Northern Region headquarters is located in this Division.

The Forest Service regularly uses chemical fire retardant to fight wildfires on

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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

Division. The Forest Service also has a Fire Sciences Lab and Smokejumper Base

in this Division. Plaintiff has members who reside in this Division, and who have

been injured by the Forest Service actions and activities complained of in this

Complaint. Moreover, the Forest Service has discharged aerial fire retardant into

navigable waters in this Division without a National Pollution Discharge

Elimination System (NPDES) permit.

PARTIES

7. Plaintiff Forest Service Employees for Environmental Ethics is a

501(c)(3) nonprofit organization founded in 1989, with its principal place of

business in Eugene, Oregon. FSEEE is composed of thousands of concerned

citizens, present, former, and retired Forest Service employees, and other

government 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 believes that the land

is a public trust, to be passed with reverence from generation to generation. FSEEE

is a unique concept—a national organization of government employees holding the

Forest Service accountable for responsible land stewardship.

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8. FSEEE’s members use and enjoy the National Forest System for

outdoor pursuits of every kind, including scientific research, boating, backpacking,

birdwatching, camping, climbing, fishing, hunting, and sightseeing. In their pursuit

of these activities, our members rely on clean water. Degradation of water quality

from aerial retardant harms FSEEE’s members’ use and enjoyment of national

forests, including the forests’ fish, wildlife, plants, and waters. FSEEE’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 year.

9. The aesthetic, recreational, scientific, and religious interests of

FSEEE’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 failure of the Forest Service to

comply with mandatory duties under the CWA and other federal laws. The injuries

would be redressed by the relief sought.

10. FSEEE has exhausted any available administrative remedies.

Reviewable final agency action exists and is subject to this Court’s review under

Section 505(a), 33 U.S.C. §1365(a).

11. Defendant United States Forest Service is an agency of the United

States Department of Agriculture, and is responsible for the lawful management of

our national forests.

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BACKGROUND

12. Section 301(a) of the CWA, 33 U.S.C. § 1311(a), prohibits the

discharge of pollutants from a point source to waters of the United States except in

compliance with, among other conditions, a NPDES permit issued pursuant to

§402 of the CWA, 33 U.S.C. §1342.

13. Fire retardant is a pollutant.

14. Aircraft are point sources.

15. The U.S. Forest Service and its contractors have discharged and

continue to discharge retardant from aircraft into navigable waters without an

NPDES permit.

16. Between 2012 and 2019, the Forest Service discharged retardant

pollutant on at least 459 occasions, totaling 761,282.5 gallons, from aircraft

directly into national forest navigable waters.

17. The Forest Service asserts that a June 23, 2011, letter from EPA

excuses its failure to obtain a NPDES permit.

18. However, the factual basis for the letter – “operators [] are not

discharging into waters of the US” – is simply not true. See EPA letter of June 23,

2011.

19. The Forest Service acknowledges hundreds of retardant discharges

into waterways from misapplications and allowable exceptions.

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20. An EPA opinion cannot amend the Clean Water Act, which requires a

NPDES permit for the discharge of fire retardant from aircraft into waterways.

21. The Forest Service's discharges of retardant pollutants into waterways

from aircraft point sources is continuous, on-going, and unpermitted, in violation

of the Clean Water Act.

22. In compliance with CWA Section 505(a), 33 U.S.C. §1365(a), on

June 23, 2022, FSEEE sent a 60-Day Notice of Intent to Sue for violation of the

CWA to the EPA Administrator, the relevant Regional Administrators of the EPA,

the states in which the violations are occurring, and to the Chief of the Forest

Service, the alleged violator.

23. Sixty days have passed since the notice was served, and the violations

complained of in the notice letter are continuing at this time.

CLAIMS FOR RELIEF

COUNT 1

24. Section 301(a) of the CWA, 33 U.S.C. §1311(a), prohibits the

discharge of pollutants from a point source to waters of the United States except in

compliance with, among other conditions, a NPDES permit issued pursuant to

§402 of the CWA, 33 U.S.C. §1342.

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25. The Forest Service’s discharges of retardant pollutants into waterways

from aircraft point sources is continuous, on-going, and unpermitted, in violation

of the CWA.

26. The term “discharge of pollutants” means any addition of any

pollutant to navigable waters from any point source. 33 U.S.C. §1362(12).

27. The term “pollutant” means dredged spoil, solid waste, incinerator

residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological

materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand,

cellar dirt and industrial, municipal, and agricultural waste discharged into water.

33 U.S.C. §1362(6).

28. Fire retardant is a pollutant. Aerially delivered fire retardant

formulations currently in use are primarily inorganic fertilizers (ammonium

phosphates) or other inorganic salts (magnesium chloride).

29. The term “point source” means any discernible, confined and discrete

conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit,

well, discrete fissure, container, rolling stock, concentrated animal feeding

operation, or vessel or other floating craft, from which pollutants are or may be

discharged. 33 U.S.C. §1362(14).

30. Aircraft are point sources.

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31. The U.S. Forest Service and its contractors have discharged and

continue to discharge retardant from aircraft into navigable waters.

32. Aerial retardant drops are not allowed in waterways or buffers

surrounding them or in avoidance areas that have been mapped for certain

threatened, endangered, proposed, candidate or sensitive species. This national

direction is mandatory and is implemented except in cases where human life or

public safety is threatened and retardant use within avoidance areas could be

reasonably expected to alleviate that threat.

33. Despite that mandate, the USFS admits that between 2012 and 2019,

on at least 459 occasions, it discharged retardant pollutant, totaling 761,282.5

gallons, from aircraft directly into national forest navigable waters.

34. If fire retardant enters a waterway, direct effects include lethal and

sublethal effects on aquatic species. These could include mortality of organisms,

change in abundance and composition of aquatic communities, or adverse impacts

to habitat.

35. From 2012 to 2019 there were 138 intrusions into threatened or

endangered species habitat that required consultation. As such, the expected rate of

intrusions is assumed to be 17 per year.

36. Retardant use is increasing, suggesting that more retardant will be

discharged to navigable waters in the future:

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37. The Forest Service’s “may affect” determination for 57 aquatic

threatened and endangered species and its “likely to adversely affect” finding for

an additional 32 aquatic species from retardant applications are further

acknowledgements that the Forest Service regularly discharges aerial retardant

pollution into waterways.

WHEREFORE, Plaintiff Requests the Following Relief:

A. Declare that the Forest Service’s continuous, on-going, and

unpermitted discharges of retardant pollutants into waterways from

aircraft point sources violate the CWA;

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B. Grant Plaintiff injunctive relief to compel the Forest Service to

comply with applicable environmental statutes, prevent irreparable

harm, and satisfy the public interest;

C. Award Plaintiff its costs, expenses, expert witness fees, and

reasonable attorney fees under applicable law; and

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

equitable.

DATED this 11th day of October, 2022.

/s/ Timothy M. Bechtold

BECHTOLD LAW FIRM, PLLC

Attorney for FSEEE

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