Judge sets firm deadline for compliance with Endangered Species Act.
Just a couple of hours ago, the federal judge ruled in FSEEE’s lawsuit against the Forest Service, National Marine Fisheries Service, and the U.S. Fish and Wildlife Service over the agencies’ failure to properly analyze aerial fire retardant heavy metals in their Endangered Species Act Biological Opinions (BiOps).
We won!
We had asked that the judge vacate the current BiOps but stay the vacatur for 12 months while the agencies crafted new BiOps with the heavy metal analysis. We asked for the stay because the current BiOps, while flawed, do require buffer zones for retardant around water bodies and mandatory reporting for incursions — and we want these protections to remain in place.
The judge established a firm deadline of November 1, 2027, for the agencies to establish new BiOps. Failure to comply, the judge said, will cause the existing BiOps to be vacated, after which, any fire retardant use would be in violation of the law (unless/until the new BiOps are issued). Interestingly, the judge cited FSEEE’s other fire retardant case as a reason for setting a firm deadline:
This Court recently found that the Forest Service’s “unpermitted aerial discharge of fire retardant into navigable waters of the United States … is in violation of the Clean Water Act.” Forest Serv. Emps. for Env’t Ethics v. U.S. Forest Serv., 674 F. Supp. 3d 959, 968 (D. Mon. 2023)…. However, the Court neither vacated the action nor enjoined the Forest Service from utilizing the aerial deployment of fire retardant. See id. Rather, status reports were ordered to be provided “every six-months regarding [the agency’s’] progress toward obtaining a [National Pollutant Discharge Elimination System] permit until a final decision has been reached as to the issuance of said permit.” Id.. Now three years on, the Forest Service’s pursuit of an NPDES permit continues to languish. See No. 9:22-cv-168-DLC, Doc. 69 at 2 (D. Mont. Aug. 3, 2026). As the Ninth Circuit remarked in re Pesticide Action Network North America, “although there is no allegation of impropriety underlying the [agency’s] delay, we note that the agency has a significant history of missing the deadlines it has set in these proceedings. 798 F.3d 809, 813-15 (9th Cir. 2015).
We appreciate the judge setting a firm deadline, and we look forward to greater transparency, accountability, safety and legality regarding the Forest Service’s use of aerial fire retardant.
