Courthouse News Service reported on oral arguments in FSEEE’s federal lawsuit challenging the Forest Service’s use of aerial fire retardant, which the agency sprays across millions of acres of public land every fire season without ever having formally analyzed the heavy metals it contains.
FSEEE sued the Forest Service, along with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service, in the U.S. District Court for the District of Montana, arguing the agencies violated the Endangered Species Act by signing off on the retardant program without accounting for the toxic metals mixed into the formula. The case, heard by Senior U.S. District Judge Donald Molloy this week, centers on a straightforward claim: the wildlife agencies’ 2022 and 2023 biological opinions clearing the retardant program never analyzed heavy metals at all, because the Forest Service never disclosed them.
FSEEE attorney Timothy Bechtold told the court the case largely turned on an undisputed point: that “the agencies did not analyze heavy metals in the challenged consultation.” A 2024 study cited in the case found that aerial retardant contains vanadium, chromium, arsenic, cadmium, lead, and several other metals at concentrations far above drinking-water limits, in some cases thousands of times higher. FSEEE argues the Forest Service knew about those metals before and during its consultation with the wildlife agencies and left them out of the biological assessment anyway.
Government attorneys countered that the agencies used the best science available at the time, and that the 2024 study documenting the metals came out after the consultations were already complete. Judge Molloy pressed the Forest Service on that reasoning, pointing to a separate incident in which Washington state regulators had cited the agency for exceeding legal metal limits at an air tanker base, and questioned whether a biological assessment that leaves out known heavy metals can really be called accurate. He indicated a ruling would come soon.
The case reflects FSEEE’s broader mission to protect national forests and promote environmental ethics, including through oversight and advocacy that pushes agencies to ground their decisions on public lands management in the best available science.
Photo: Plane dropping fire retardant
