Professional Documents
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USFS Charging Documents
USFS Charging Documents
Timothy M. Bechtold
BECHTOLD LAW FIRM, PLLC
P.O. Box 7051
Missoula, MT 59807-7051
406-721-1435
[email protected]
INTRODUCTION
Forest Service on the agency’s discharge of aerial fire retardant into navigable
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
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
Defendant. Plaintiff has exhausted any administrative remedies. This Court has the
VENUE
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
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
PARTIES
citizens, present, former, and retired Forest Service employees, and other
value system for the Forest Service based on a land ethic that ensures ecologically
and economically sustainable resource management. FSEEE believes that the land
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8. FSEEE’s members use and enjoy the National Forest System for
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
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
Reviewable final agency action exists and is subject to this Court’s review under
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BACKGROUND
discharge of pollutants from a point source to waters of the United States except in
15. The U.S. Forest Service and its contractors have discharged and
NPDES permit.
16. Between 2012 and 2019, the Forest Service discharged retardant
17. The Forest Service asserts that a June 23, 2011, letter from EPA
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.
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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.
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
23. Sixty days have passed since the notice was served, and the violations
COUNT 1
discharge of pollutants from a point source to waters of the United States except in
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of the CWA.
27. The term “pollutant” means dredged spoil, solid waste, incinerator
cellar dirt and industrial, municipal, and agricultural waste discharged into water.
33 U.S.C. §1362(6).
29. The term “point source” means any discernible, confined and discrete
conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit,
operation, or vessel or other floating craft, from which pollutants are or may be
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31. The U.S. Forest Service and its contractors have discharged and
surrounding them or in avoidance areas that have been mapped for certain
public safety is threatened and retardant use within avoidance areas could be
33. Despite that mandate, the USFS admits that between 2012 and 2019,
34. If fire retardant enters a waterway, direct effects include lethal and
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
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threatened and endangered species and its “likely to adversely affect” finding for
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equitable.
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