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,

Perhaps most alarming is that the infractions go unpunished by the courts. One citizen advocate characterizes it as "official lawlessness," and if it doesn't lead to anarchy, it threatens to throw government into a state of entropy.

In 1994, for example, when the Arizona State Supreme Court ruled that the state's method of funding school construction was unconstitutional and ordered the state Legislature to fix it, then-Senate president John Greene defiantly asked, "If we don't do what they say, what are they going to do? I think the courts have gone too far."

Three years later, with a new Senate president, a new House speaker and a new governor, state legislators are still at loggerheads over how to meet the court's increasingly impatient orders. Why? Because of state politics and ideology, which are so much more important these days than actual human beings.

The big federal agencies blame their entropy on lack of funding or staffing. They claim that they can't possibly meet all the deadlines that the law requires of them. Or they can't keep track of contradictory statutes. Or they just don't want to make regulatory decisions that will cause some industry to call a congressman who will rain anger down upon them. Or they just don't like the laws. Which happens increasingly, given the shrill rhetoric from powerful antigovernment types who have cowed officials into submission.

"Some bureaucracies operate on inertia," says David Baron of the Arizona Center for Law in the Public Interest. "Doing nothing is what they do best, particularly when the law is directing them to do something that is going to make powerful people angry."

And so they get sued.
Although the general consensus among bureaucrats and advocates alike is that such suits are increasing geometrically, no one is counting.

The Arizona Attorney General's Office, for example, keeps no records of how many suits are filed to get state agencies to obey the law, but at New Times' request polled its attorneys and came up with an office memory of 40 such cases pending or settled within the past several years. Some drag on for decades at great cost to the state.

Arnold v. Sarn, for example, a case that forced the Legislature to fund mental-health care for indigents, has lingered in the courts since 1981, costing the state $3.4 million in attorneys' fees paid to plaintiffs and outside attorneys just in the past four years, not counting the cost of more than 5,000 attorney and legal assistant hours from AG staffers.

In the federal courts, the vast majority of citizen lawsuits falls in the environmental arena. And again, no one is really counting them--or the staggering toll they exact in resources, natural, financial and human.

In 1996, however, Washington Senator Slade Gorton demanded that the U.S. Department of Justice provide him "the number of lawsuits filed in any court against the Secretary of the Interior or any other federal officials, or the United States (with respect to 'takings' claims) involving the Endangered Species Act" between 1985 and 1996.

The Justice Department came back with 258, most of them since 1992.
Just one environmental advocacy group alone, Earthjustice Legal Defense Fund (formerly Sierra Club Legal Defense Fund), listed 76 "actions" on its 1997 legal schedule of suits filed all across the country on behalf of the environment.

"The Fish and Wildlife Service is currently involved in an unprecedented number of lawsuits involving the Endangered Species Act," read the opening lines of a 1996 memo written by the acting head of that agency. The year before, in a blatant attempt to limit the effectiveness of the ESA, anti-environmentalists in Congress had temporarily blocked adding new species to the endangered list. It didn't work.

"The year-long moratorium and budget cuts by Congress have resulted in a huge backlog of listing actions, which has precipitated additional litigation," the memo continued.

Especially in the Southwest.
In the past 18 months, the Southwest region of the U.S. Fish and Wildlife Service has faced 37 lawsuits (according to its informal logs) from both environmentalists and state and county governments suing to counter the environmentalists' lawsuits.

"Proportionately in the Southwest, we receive more suits than elsewhere in the country and we receive more Freedom of Information requests," says Jeff Humphries, a spokesman for the Phoenix office of the Fish and Wildlife Service.

The same is true of the U.S. Forest Service.
"My counterparts in the other regions tell me how much they pity us down here," says Leon Fager, a Forest Service biologist who retired last week as head of the Threatened, Endangered and Sensitive species section in the regional office in Albuquerque.

The glut in Southwestern suits is partly because of rapid and rampant development, butting up against the traditional commodities-driven economy--logging, mining, agriculture. Not only are those industries becoming less and less viable, the commodities themselves are running out.

Less than 10 percent of the nation's timber comes from the national forests, and a little more than 3 percent of that comes from the Southwest. The Southwest cattle industry is an even tinier blip on the national radar screen; less than 5 percent of beef comes from public lands, and an incalculable fraction of that from Arizona and New Mexico. Furthermore, those industries have to be subsidized to survive, and many public opinion polls show that the urbanites who now constitute the greater part of the Southwest's population would like to see them curtailed. And yet the Forest Service continues to manage its lands on their behalf.

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