GRANTS PASS — A federal judge in Montana said Friday he’s prepared to hold the U.S. Forest Service in contempt of court for a “duplicitous” strategy of skirting the law so it can keep fighting wildfires with retardant that kills fish.

Judge Donald W. Molloy set a Feb. 26 hearing in U.S. District Court in Missoula to give the Forest Service a chance to convince him that Agriculture Undersecretary Mark Rey should not be put in jail and fire retardant drops from aircraft be stopped nationwide until the agency properly considers the dangers to the environment.

“The Forest Service, throughout these proceedings, evidenced a strategy of circumventing, rather than complying with,” the National Environmental Policy Act and the Endangered Species Act, the judge wrote. “The apparent pattern suggests a strategy of looking for ways to avoid the law’s mandate as opposed to looking for a means of complying with the law.

“In my view, the Forest Service is in contempt of the law and the prior orders of this court. Nonetheless, a hearing is appropriate before reaching a final conclusion on that issue.”

Potential sanctions include sending Rey to jail, putting him under house arrest and banning the Forest Service from using any fire retardants but water in air tankers, Molloy wrote.

In an earlier order, Molloy write that Rey should appear in person. Rey oversees the Forest Service, a part of the Agriculture Department.

“We take very seriously our obligations to perform the environmental analysis required by law, and have made every effort to comply with the court’s rulings in this case,” Forest Service spokesman Joe Walsh said from Washington, D.C. “We expect to demonstrate the government’s good faith in further proceedings before the court.”

In 2005, Molloy ruled that the Forest Service violated the Endangered Species Act and the National Environmental Policy Act when it failed to go through a public process to analyze the potential harm from using ammonium phosphate, a fertilizer that kills fish, as the primary ingredient for retardant dropped on wildfires.

The ruling stemmed from a lawsuit brought by Forest Service Employees for Environmental Ethics after fire retardant dropped in Fall Creek in Central Oregon in 2002 killed 20,000 fish.

Andy Stahl, executive director of the group, said the government’s use of fire retardant is like the use of pesticides, polluting watersheds and killing fish and wildlife.

“The Forest Service view is, ‘Whatever the harm to the environment, it’s irrelevant, because we are fighting a war, and fire must be worse than anything we are doing to fight a fire,” Stahl said from Eugene. “That’s not true. Most of our western forests need fire to stay healthy. It’s been the overzealous war on fire that’s been the underlying cause of our forest health crisis.”

Molloy wrote that the record in the case “shows the Forest Service had no real intention to comply with the law or the court’s orders.”

As evidence, he pointed to correspondence the Forest Service submitted with NOAA Fisheries, which oversees salmon protections, and the U.S. Fish and Wildlife Service.

The correspondence shows that the Forest Service did not begin trying to consult with the two agencies, as required by the Endangered Species Act, until more than a year after the court order told them to, and just weeks before the deadline, Molloy wrote.

The Forest Service said it would provide NOAA Fisheries with an environmental analysis on fire retardant by Dec. 1, 2006, but did not actually produce it until July 2, 2007, five weeks before Molloy’s deadline. The Forest Service request for formal consultation that came with it was a year and a half after Molloy’s order.

NOAA Fisheries replied that the Forest Service had not complied with three of the six criteria necessary for starting formal consultation under the Endangered Species Act.

Meanwhile, the Forest Service maintained that it did not report on what might happen to fish if fire retardant was accidentally dropped in streams because it did not intend to drop fire retardant in streams, Molloy wrote.

On Sept. 20, NOAA Fisheries told the Forest Service that dropping poisonous fire retardant on wildfires was likely to jeopardize the survival of 26 species of salmon and other fish, and would destroy or harm critical habitat.

The so-called jeopardy finding cited harm to more species than any other jeopardy finding in the history of the Endangered Species Act, Stahl said.

A similar record of delay describes Forest Service consultations with the U.S. Fish and Wildlife Service, Molloy wrote.

Stahl said he was not aware of any administration official actually going to jail over a contempt finding in an environmental case. Former Interior Secretary Gale Norton did not go to jail over a contempt finding in an Indian trust funds case. It was reversed on appeal.