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,

For example, public polls have indicated that the majority of Arizonans favors limiting grazing on public lands to protect endangered species. Yet Arizona's congressional delegation constantly stands up for grazing. Congressman John Shadegg is a strong supporter of mining, grazing and logging--even if his northeast Valley district is largely suburban.

One way that congressmen help their special interests is by not funding regulatory programs they don't like.

Leon Fager was the biologist in charge of all threatened and endangered species for the Southwest region of the U.S. Forest Service.

"Most of the wildlife dollars in this region are taken up to provide support to keep the cows on the national forests and to keep the logging trucks rolling," Fager says.

There is little money appropriated for habitat rehabilitation or to actually protect threatened and endangered species. Instead, his time and that of other biologists is mostly spent to mitigate the effects of grazing and logging on those species.

The only reason Fager is speaking openly now, without fear of reprisal, is that he retired last week after 32 years of government service.

The U.S. Forest Service is viewed in Washington, D.C., as a rogue agency that does what it wants to, not what it's told by legislation, the White House, the courts, or even its own leadership.

Last year, President Clinton appointed an outsider, Mike Dombeck, a fisheries biologist from the Bureau of Land Management, to run it.

"Somehow we have to figure out how we move from the red zone and spending so much time and energy in these controversial areas we're in," he tells New Times. "We've moved resource management out of the field and into the conference room. We've got to figure out how to get that interaction back out on the land."

Dombeck trots cross-country giving speeches about rehabilitating watersheds and retooling forest-town economies away from logging and into tourism.

But his agency does what it has always done, which is whatever the hell it pleases.

"They don't read Mike's speeches, they wait for his memo," says one Forest Service old-timer. "Mike has never written a memo."

And if consultation were moved back out on the land, as he says, the decisions would still go in favor of ranchers and loggers.

If the Forest Service is a rogue agency, its Southwest region is a rogue within the agency. The regional forester position, insiders say, is mostly a figurehead, a voice to the outside world, a gladhander who talks to D.C. wonks. But the show is run by the region's deputies, a cabal of old-timers waiting for the return of the Bush and Reagan years like exiles awaiting the overthrow of a despot government.

"They openly say, 'This Clinton thing will all change. We'll go back to a get-out-the-cut operation,'" says former Forest Service biologist Leon Fager.

Pat Jackson is Southwest regional appeals coordinator for the Forest Service, the guy who tracks the appeals and lawsuits through the courts. He's a straight-talking Westerner, gray-haired and lanky like a rancher, with old-fashioned, Western-cut trousers riding low on his hips.

In the early 1980s, Jackson says, there were 30 to 40 appeals per year that came through his office, complaints about ski areas or grazing permits, firewood cutting and other permits and uses of the forests. In Fiscal 1996, there were more than 200. In the '80s, perhaps two or three each year actually reached the litigation stage.

"Now we can have 20 to 25 active suits at any one time, not counting the Freedom of Information suits," Jackson says.

The increase, he thinks, comes out of the National Forest Management Act of 1976, which had provisions for filing lawsuits so that citizens could have a greater say in how their national forests are run. In the late '80s, the Southwest region completed its forest plans and then legal floodgates opened.

"The difference between the litigation we get now versus the litigation years ago is that now it's not aimed at projects, but broad programs--range, timber, consistency with forest plans--in an attempt to enjoin those programs," Jackson says.

And indeed just such lawsuits have enjoined logging in the region since August 1995 and grazing since last May.

"This region has adopted the reactionary pose," Fager continues. "What the region chooses to do is react to the litigation coming in, spend all of our time and energy and manpower doing that and very little on the positive side of recovery. And Pat Jackson is in charge of litigation, so most of the leadership comes out of his office."

That reactive leadership has shot itself in the foot, shutting down logging while refusing to negotiate over alleged violations of the Endangered Species Act and the National Forest Management Act.

"There's no doubt in my mind whatsoever that they're breaking the law," says Mark Hughes, the Denver attorney who filed the owl suits. "There's also no doubt in my mind that the Forest Service could avoid breaking the law if it wished to. But it's easier to break the law, have us take them to court, and blame us for the changes it has to make. That's their current modus operandi."

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