Brownstein Clients Successfully Advocate Against Nationwide Injunction and Secure Ruling Permitting USFS to Continue Use of Aerial Fire Retardants to Fight Wildfires
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Brownstein Clients Successfully Advocate Against Nationwide Injunction and Secure Ruling Permitting USFS to Continue Use of Aerial Fire Retardants to Fight Wildfires

Brownstein Water Blog, June 1, 2023

Notwithstanding the increasing size and severity of wildfires over the past decade, certain plaintiff groups have sought to constrain the government’s response to wildfires. Brownstein was honored to have the opportunity to represent a diverse coalition of wildfire stakeholders in one such case, advocating for the continued availability of every tool in the toolbox to protect human lives, private property, public lands and natural resources.

On May 26, 2023, the U.S. District Court for the District of Montana issued a ruling on a motion for summary judgment brought by the plaintiff, Forest Service Employees for Environmental Ethics (FSEEE), against the U.S. Forest Service (USFS) seeking to enjoin the its use of aerial fire retardants during firefighting activities nationwide. FSEEE argued that because fire retardant dropped from airplanes sometimes gets into waters protected by the Clean Water Act (CWA), all aerial deployment of fire retardant should be enjoined until the USFS obtained a permit for the discharge of fire retardant under the CWA. The USFS agreed to apply for the CWA permit but informed the court that it would take about 2.5 years for the agencies involved to approve the permit. The court denied FSEEE’s motion for an injunction, ruling that USFS may continue to deploy fire retardant as a tool to fight wildfires during the permit process.

This court’s decision denying FSEEE’s requested injunction was consistent with responsive pleadings filed by the USFS and a broad coalition of communities and landholders represented by Brownstein. The coalition of wildfire stakeholders filed an amicus brief and participated in oral arguments supporting USFS’ continued ability to use aerial fire retardants. On March 9, the town of Paradise, California, which was devastated in the 2018 Camp Fire, joined Butte and Plumas counties in California, Rural County Representatives of California, the California Forestry Association, the American Forest Resource Council, the National Alliance of Forest Owners, the Federal Forest Resource Coalition, the Montana Wood Products Association, the Oregon Forest Industry Council, the Washington Forest Protection Association, the California Farm Bureau Federation, the National Wildfire Suppression Association and California Women for Agriculture in petitioning the court to participate in the case originally brought this past October by FSEEE.

On March 31, the U.S. District Court for the District of Montana granted the coalition the right to file an amicus brief and participate in oral arguments on FSEEE’s summary judgment motion. On April 14, the coalition filed an amicus brief in opposition to FSEEE’s motion for summary judgment, which included several declarations in support of the amicus brief, including from Ken Pimlott, former director of the California Department of Forestry and Fire Protection, and Wyatt Frampton, an official with the Montana Department of Natural Resources and Conservation responsible for the agency’s fire management, Good Neighbor Authority and Cooperative Forestry Programs.

On April 24, the court heard oral arguments from FSEEE, USFS and the amici curiae.

The ruling that USFS’s aerial application of fire retardant not be enjoined is of critical importance to communities, landowners and businesses operating in the West, where wildfires have grown increasingly severe. The aerial deployment of fire retardant has played an integral role in stopping some of the most devastating wildfires in recent history—saving lives, businesses, property and natural resources—and we look forward to continuing to engage on this important issue.

This document is intended to provide you with general information regarding SUBJECT. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions. The information in this article is accurate as of the publication date. Because the law in this area is changing rapidly, and insights are not automatically updated, continued accuracy cannot be guaranteed.

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