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February 28, 2008

Mark Rey Dodges Contempt of Court Charges

Missuola, MT — For several months Federal Judge Donald Molloy has threatened to throw the Forest Service's USDA boss Mark Rey in jail for foot-dragging relative to Molloy's specific judicial mandate to comply with NEPA relative to fire retardant drops on national forests. Molloy believed that an incarceration threat for "contempt of court" might spur the Forest Service into action to comply with the National Environmental Policy Act and the Endangered Species Act relative to fire-related government actions—specifically, in this case, fire retardant drops. Yesterday, Judge Molloy let Rey off the hook — for now — but took the opportunity to scold the Forest Service and Rey for what Molloy called "systematic disregard of the rule of law." Here's more from The Missoulian, Feb 28:

… U.S. District Judge Donald Molloy cleared Rey, the Bush administration's top forest official, and the Forest Service of contempt and withdrew his threat to jail Rey or ground all fire retardant air tankers until the agency evaluated the environmental impact of the chemical slurry.

Molloy did not rule on the merits of the Forest Service's environmental analysis, and the watchdog group whose lawsuit prompted the showdown said it planned to take new legal action to challenge the agency's finding that aerial retardant causes little harm to fish and other aquatic creatures.

"We accomplished what we wanted to do, which was to make the Forest Service follow the law," said Andy Stahl, director of the Forest Service Employees for Environmental Ethics, based in Eugene, Ore.

In his testimony, Rey apologized for the Forest Service's tardiness in following the judge's order to complete an environmental analysis of the potential harm from ammonium phosphate, the primary ingredient in retardant dropped on wildfires.

But Molloy was not mollified and forced Forest Service employees in their testimony to acknowledge their "systematic disregard of the rule of law."

Before announcing his ruling, Molloy delivered a blistering criticism of the Forest Service, saying only a threat of contempt prompted the agency to comply with the nation's top environmental laws - the National Environmental Policy Act and the Endangered Species Act.

The judge also questioned the federal government's battery of lawyers who handled the case, dismissing their "attempts" at explaining the delays and their "parsing of words to create unjustifiable arguments."

Rey and other Forest Service officials maintained they had acted in good faith, but Molloy said it was "shameful" that it took a threat of contempt to make the agency comply with the law.

"Something's remiss," Molloy said. 'I don't know if it's the lawyering or an institutional matter." …

I'm inclined to think it an institutional matter — the Forest Service believes it is on a divine mission to do good work — to do "good projects on the ground" — instead of rightfully seeing itself as an agency of government that must justify its work both to three branches of government as well as to the American people in complying with various environmental statutes. More details here, related to NEPA compliance responsibilites.

Posted by Dave on February 28, 2008 at 10:55 AM | Permalink


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Posted by: Mike Dechter

Dave... you have to write about the 9th Circuit decision that dropped yesterday reversing the District Court decision upholding the Basin, Empire, and Slapjack timber (stewardship) contracts. I am still a little blown away... the court's decision stated that the FS did not consider a reasonable range of alternatives because it did not consider other financial options for implementing the project. Does that mean we now have to include budget decisions or potential budget decisions in our NEPA documents?

The concurring opinion is even better. You have to read this... Judge Noonan argues that the Forest Service administering timber sales is no different than a Congressional representative taking bribes. At least that's how I interpreted it. I'd like to see something written about this. It can have HUGE consequences.

Mike Dechter | May 15, 2008 9:03:58 AM

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