Free Motion for Preliminary Injunction - District Court of Federal Claims - federal

Case 1:04-cv-01389-GWM

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PAUL F. DAUER (CALIFORNIA BAR NO. 37428) LAW OFFICES OF PAUL F. DAUER 400 CAPITOL MALL, SUITE 2950 SACRAMENTO, CA 95814 TELEPHONE: (916) 448-2431 FACSIMILE: (916) 448-2462 EMAIL: [email protected] JENNIFER L. MCCREADY (CALIFORNIA BAR NO. 179262) LAW OFFICES OF BEST BEST & KRIEGER LLP 400 CAPITOL MALL, SUITE 1650 SACRAMENTO, CALIFORNIA 95814 TELEPHONE: (916) 325-4000 FACSIMILE: (916) 325-4010 EMAIL: [email protected]

Attorneys for Plaintiff FIRE-TROL HOLDINGS LLC

IN THE UNITED STATES COURT OF FEDERAL CLAIMS
FIRE-TROL HOLDINGS LLC, Plaintiff, v. UNITED STATES Defendant. Case No.: 04-1389-C Judge George Miller

DECLARATION OF TERRY KENNEDY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

DECLARATION OF TERRY KENNEDY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Case 1:04-cv-01389-GWM

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Filed 09/13/2004

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LAW OFFICES OF BEST BEST & KRIEGER LLP 400 CAPITOL MALL, SUITE 1650 SACRAMENTO, CALIFORNIA 95814

DECLARATION OF TERRY KENNEDY

I, TERRY KENNEDY, declare as follows:
1.

I am the General Manager, Fire-Trol Canada Company. In brief, my

educational background is a follows. I obtained a diploma of Fire Technology from Yukon College in 1971, a Diploma in Forest Technology from Northern Institute of Technology, Alberta in 1974 and completed course requirements for the Bachelor of Science in Forestry Degree (BSF) in 1988 with specialization in Fire Management, Forest Economics and Forest Measurements. My work history related specific to Fire Management was to rise from fire fighter in 1971 to Head of the Yukon Air Program of the Canadian Department of Indian and Northern Affairs, in 1981. The Air Program included all hire of aircraft and retardants, including patrol, helicopters, air tankers, birddog/lead aircraft and aircraft hire for all sections of the Northern Affairs Program including mining, forestry, lands, oil, administration, and all other sections. The function also included the operation, infrastructure, and functioning of six air tanker bases. I was in charge of this program until 1995 when I left government to manage a forest and timber company for two years. In 1996, I returned to the Canadian Government as Head of Operations and Policy for the Forest Service in Yukon. One of the many mandates was to write and enforce policy for Fire Management. After leaving Government in 2002 I worked for Timber Bear Management Inc. which is a professional consulting and management company. In that function I did research for Fire-Trol Holdings LLC, and prepared the report of October 28, 2002. In that role I also did forest contracts for Yukon Government, Yukon Forest Industry Association, two First Nations (Native American organizations), the Yukon Outfitters Association and several others.

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-2DECLARATION OF TERRY KENNEDY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

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LAW OFFICES OF BEST BEST & KRIEGER LLP 400 CAPITOL MALL, SUITE 1650 SACRAMENTO, CALIFORNIA 95814

2.

I am a member in good standing of both CIF (Canadian Institute of

Foresters) and the COFE (Council of Forest Engineering). I am an associate member of the Airtanker Pilots Association of the USA.
3.

I worked in my role in fire management in many capacities. On fire

suppression line activity, I have been Line Boss, and Fire Boss in Yukon and other Canadian agencies (i.e. Northwest Territories ("NWT"), British Columbia ("BC"), and Alberta). In the capacity of Air Coordinator, Air Attack Officer and Lead aircraft roles I have worked throughout Canada and Alaska including Ontario, Saskatchewan, Alberta, NWT, Yukon, BC and Manitoba. I have worked with all products of the day, including both Fire-Trol and Astaris (Monsanto) long term retardants and short term water based foams and short term retardants. I have worked with land based tankers (A-26's, DC-6's, Firecats (S2F), PB4Y2's, B-25's and other fixed wing tankers). I have worked with water scoop aircraft such as PBY Canso and CL215 type aircraft. I have extensive operational use of both thickened and unthickened retardant products. Over the 22 years I have directed and observed over 7,000 loads of retardant on wild fires.
4.

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There are several general types of retardant salts: ammonium

polyphosphates, orthophosphates, diammonium sulfates and combinations thereof. Ammonium polyphosphates demonstrate characteristics of elasticity without the addition of thickener (gum or otherwise). Non-polyphosphate based retardants do not demonstrate such elastic properties, without the addition of gum.
5.

Thickeners may also be added to ammonium polyphosphate

retardants to alter the viscosity and elasticity characteristics of the retardant. Viscosity is measured in "centipoise," with a higher number indicating greater viscosity. A 100 centipoise ammonium polyphosphate retardant will likely behave differently from a 100 centipoise orthophosphate retardant because of the inherent elasticity of the polyphosphate. As I understand the United States Department of Agriculture, Forest Service (USFS) rule requiring gum-thickener, it does not
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LAW OFFICES OF BEST BEST & KRIEGER LLP 400 CAPITOL MALL, SUITE 1650 SACRAMENTO, CALIFORNIA 95814

distinguish between ammonium polyphosphate retardants and other sulfate or phosphate based retardants.
6.

I am unaware of any documented performance information, reports,

or other records documenting any air drop tests or evaluations of low viscosity (under 250 centipoise) gum-thickened, non polyphosphate retardants by the USFS. Thus, I am unaware of any basis for the USFS' statement that viscosity of 100 centipoise "improves" wildland fire retardant drop characteristics as compared to other retardants which demonstrate elasticity but which have a viscosity of under 100 centipoise, such as polyphosphate based products.
7.

The USFS requirement to have a retardant viscosity of at least 100

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centipoise does not appear to have any operational proven superiority value. The USFS has not identified operational benefit or basis for its rule. In specific Shock-Hydrodynamics and Honeywell studies, I understand that the studies evaluated gum-thickened retardant of greater than 1200 centipoise. All else being equal (except amount of gum thickener), a retardant of 1200 centipoise will behave very differently from a 100 centipoise retardant.
8.

I understand that the USFS based its rule requiring gum thickener in

retardants on a comparison between water and gum-thickened retardants. The characteristics of water, which has a viscosity of 1 centipoise, are materially different from the characteristics of Fire-Trol's liquid concentrate retardants, which contain ammonium polyphosphate. Fire-Trol's liquid concentrate retardants are generally between 40 and 80 centipoise, and elastic.
9.

Optimum air drop altitudes, which vary depending on a number of

factors, are established for Fire-Trol's liquid concentrate retardants and other products by the terminal velocity of the load. This is the point at which the retardant mass once leaving the aircraft stops its forward movement, in mass, and begins to drop or fall straight down as a droplet rain.
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LAW OFFICES OF BEST BEST & KRIEGER LLP 400 CAPITOL MALL, SUITE 1650 SACRAMENTO, CALIFORNIA 95814

10.

I am unaware of any USFS study or research establishing the

optimum altitude from which to drop a 100 centipoise, gum-thickened retardant, that is not a polyphosphate. I am aware of the Kingman, Arizona drop tests of 1999, conducted by the USFS for Fire-Trol Holdings LLC, in which air tanker drops were made with unthickened polyphosphate liquid concentrate with various levels of gum added. The range used for gum was from no gum added to 600 centipoise. From my initial review I can attest that there appears to be no quantified benefit in the addition of gum to the unthickened product in either total area or line length up to the critical coverage level of 2 gallons per 100 square feet. Therefore the requirement to add gum to achieve 100 cps in a polyphosphate based retardant like LC has no qualified proven merit. In addition, the USFS has no basis to conclude that a 100 centipoise non-polyphosphate based retardant would drop the same as a polyphosphate or that it could, or should, be dropped from any greater height than Fire-Trol's non-gum-thickened liquid concentrate retardants in order to attempt to reach the same effective coverage. The whole issue of requiring 100 centipoise of viscosity appears to be an attempt to have non-polyphosphate retardants add gum to appear to drop like polyphosphate non-gum retardants do now. However, viscosity does not correlate directly to elasticity, as demonstrated by clay-thickened retardants versus gum-thickened retardants
11.

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Fire-Trol's non-gum-thickened retardants are dropped and reach the

ideal terminal velocity at tree top level, from an altitude deemed safe by the USFS. A rule requiring gum thickener resulting in at least a 100 centipoise viscosity is immaterial to whether the retardants are dropped from a safe altitude.
12.

Raising the drop height of retardant decreases its accuracy, increasing

the risk of gaps in the fire line or missing the target. This in turn can cause safety concerns to both air and ground crews, and can allow the fire to burn through the line, making the potential retardant line ineffective.
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LAW OFFICES OF BEST BEST & KRIEGER LLP 400 CAPITOL MALL, SUITE 1650 SACRAMENTO, CALIFORNIA 95814

Increasing drop height of retardant is shown to decrease accuracy exponentially, as per Timber Bear Management report of 2002. A true and correct copy of excerpts of that report is attached hereto as Exhibit A. In fact, raising the drop height from 200 feet with an accuracy of 80% to 350 feet reduces accuracy to about 20%. Exhibit A hereto, at Figure 3. This shows that the gum thickened retardants which must be dropped higher to reach terminal velocity are substantially more inaccurate than unthickened. This refutes the safety and cost effective arguments by the USFS on the requirements for higher drop heights being safer and more cost beneficial.
13.

In addition, it is my understanding that the USFS is basing its

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conclusion about "more" retardant reaching the ground on USFS studies in which the USFS drops retardant over a large, flat area and measures how much retardant is collected in cups placed on a grid. I am unaware of any study in which the USFS has measured air drops of retardant of 100 centipoise to determine whether more retardant reaches the ground than unthickened or non gum based polyphosphate. The drop test models used by the USFS are too simple and not complex enough to show either the three dimensional act of coating the fuels or the action that occurs during a three dimensional wild fire situation.
14.

The air drop characteristics studies of which I am aware do not take

into account the fact that fire fighting takes place over a three-dimensional "fuel load" (e.g., trees, bushes, and grasses) which must be adequately coated in order to form an effective fire line. A study demonstrating how much retardant will land in a cup, unimpeded by vegetation, is wholly unrelated to the question of whether, in actual fire-fighting situations, sufficient retardant will reach and coat the fuel load to adequately control or affect the fire.
15.

The principle that gum thickener inhibits coating and coverage of the
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fuel load is tacitly acknowledged by the fact that the USFS chemically breaks
DECLARATION OF TERRY KENNEDY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

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LAW OFFICES OF BEST BEST & KRIEGER LLP 400 CAPITOL MALL, SUITE 1650 SACRAMENTO, CALIFORNIA 95814

down the gum thickener before spraying the retardant on the fuel load in Specification 5100-304b's laboratory combustion retarding effectiveness test.
16.

The use of Fire-Trol liquid concentrate product is a proven and

effective tool by operational ground and air attack fire fighters. As a non-gumthickened polyphosphate based product, it has proven time and again its effective drop characteristics and retardant capability to fire line staff who often depend on it with their lives. The predominant use of this product world wide proves the facts stated. The USFS laboratory claims appear arbitrary, unproven and capricious in nature to those of us that have actual operational experience in control of wild land fire. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct, and if called as a witness, I could competently testify to the foregoing facts from my own personal knowledge if called upon to do so. Executed at Kamloops, B.C., on September 2, 2004. s/Terry Kennedy TERRY KENNEDY

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