Government by Litigation

Increasingly, public officials ignore laws they're paid to uphold. Citizens and interest groups regularly drag these same bureaucrats into court, trying to ensure that the laws of the land are enforced. But now even the courts, once bastions of authority,

On Friday, July 12, 1996, the Southwest regional headquarters for the United States Forest Service sent out a press release to announce that it was about to break the law.

Charles "Chip" Cartwright, the regional forester, was giving the go-ahead to start cutting trees, even though a federal injunction had prohibited most logging in the region for nearly a year.

Because of a suit filed by the Southwest Center for Biological Diversity, an Arizona-based environmental group, U.S. District Court Judge Carl Muecke had ordered that the service consult with the U.S. Fish and Wildlife Service to determine how logging affected the endangered Mexican spotted owl. The two services had stalled inexplicably; the judge lost patience and imposed the injunction.

On that Friday at the close of the business day, the Forest Service faxed what it considered a biological opinion to the judge's Phoenix courtroom.

Cartwright faxed off his press release to the media, saying that the agency had satisfied the judge's orders and was sending the loggers back to work.

Then, without waiting for the judge's approval, Cartwright dialed up a conference call with the supervisors of the 11 national forests under his command. Only one of them, the supervisor of the Apache-Sitgreaves National Forest in eastern Arizona, was able to rouse any loggers on such short notice, but by Monday, two companies had crews out in the forest dropping trees as quickly as they could.

Though the Forest Service and its lawyers deny it to this day, they were breaking the law by directly violating a judge's order.

When Judge Muecke heard of the tree cutting, he was furious, and he ordered that it stop immediately.

"I'm not sure we even got a load or two of logs out," says Terry Reidhead, owner of one of the logging companies. "The timber administrator come out like at eight o'clock the next morning and shut us down again."

Muecke demanded the names of everyone involved in the decision to violate his injunction. Like a good soldier, Chip Cartwright dutifully stepped forward.

Muecke was recovering from surgery at his summer home in Flagstaff, and unable to travel, so he ordered Cartwright and the environmentalists to appear at the federal courthouse in Flagstaff.

But he was fit enough to skewer Cartwright, asking how a defendant in a case could declare himself the winner and then dismiss the judge.

"I have never run into that in my whole life," he told Cartwright.
The Fish and Wildlife Service and the Forest Service had previously submitted several biological opinions that Muecke rejected; he would knock down this latest version as well.

The injunction would stand until December, until after Muecke recused himself from the case and passed it on to Judge Roger Strand. Strand accepted the next biological opinion and lifted the injunction.

A day later, the Forest Service told the enviros that it had no intention of making its pending timber sales conform with the new guidelines for owls and goshawks that had been approved as part of the settlement. The enviros went right back to court, and by May, the Ninth U.S. Circuit Court of Appeals had imposed a new injunction against logging, which is still in effect.

To this day, Muecke remains flabbergasted that the Forest Service would so flagrantly violate his orders.

To this day, the Forest Service denies it did anything wrong.

At the same time Muecke was trying to force action out of the Forest Service, he was battling Governor J. Fife Symington III over several prison lawsuits against the State of Arizona. He'd already found the head of the Department of Corrections in contempt and was considering contempt charges against the governor himself.

As governor, Fife Symington made a great show of tangling with state and federal judges over those lawsuits and others concerning school desegregation, school funding and clean-air legislation.

All of the lawsuits had been brought by citizen advocacy groups trying to make state or federal agencies follow the laws on the books. Symington would excoriate the so-called liberal judges charged with upholding the law, creating a side show to distract the public from the facts of the cases, which are that the government was breaking the law, and citizen lawsuits were trying to force it to obey them.

Most laws are the result of a long deliberative process. Legislators and their staffers pore through reams of analysis, fight over wording, compromise and compromise again. Many of the laws have provisions built into them to allow the general public to file lawsuits to question the way they are carried out.

Those provisions are used especially in the environmental arena, especially in the Southwest. Citizen lawsuits using the Endangered Species Act, the National Forest Management Act, and the Clean Air Act, among others, are proliferating.

Citizen suits so threatened Arizona legislators that they rewrote the state environmental laws to prohibit suing polluters and to limit the scope of lawsuits that would try to make the Arizona Department of Environmental Quality enforce its regulations.

But the lawsuits are likely to increase. The current fashion among politicians and bureaucrats is to ignore the laws they don't like or that impinge on their special-interest constituents. Citizen lawsuits result. And then they dig in their heels and thump their chests and deny culpability even after they lose the lawsuits.

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