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,

Andy Stahl is head of Forest Service Employees for Environmental Ethics, an unsanctioned watchdog group inside the Forest Service.

"There's an old established tradition in the Forest Service," he says. "When you don't like a law, you violate it, wreck the train, shut the world down and then run to Congress crying to get the law changed. It works often enough that the risk is worth it."

The Southwest logging train wreck has tied up the timber industry for two years and four months. Its players have been antagonists for so long that they refer to each other by first names: Chip and Pat and Milo and Robin, Kieran and Peter.

The bureaucrats draw salaries, the lawyers collect attorneys' fees, the environmentalists use their court victories to attract grant monies, and the loggers simmer.

"As far as I'm concerned, the Forest Service is in breach of contract on these sales that I have under contract," says logger Terry Reidhead. "I have one that I paid for in 1995 that I've never been able to move a stick of timber off of because of these injunctions. So if anyone's got some third-party damages here, if anyone's got a right to sue, it'd be me."

Lewis Tenney, head of another Arizona mill, appealed to the U.S. Supreme Court in October, asking it to end the injunction lest he be put out of business. Immediately, the Southwest Center informed the court that Tenney had 12.4 million board feet of standing trees that he just didn't want to cut because of low market prices.

"The judges have ruled in our favor every time," says Tenney. "All that these hippie-type guys and Earthlaw out of Denver are doing is they're making big money, and they're doing it on technicalities in federal courts.

But the high court turned Tenney away.
The next week, when New Times confronted U.S. Forest Service Chief Mike Dombeck about the case, he claimed to have no appreciable knowledge of the case, even though it had been all the way to the Supreme Court.

Nonetheless, it may have contributed to the fall of at least one Forest Service bureaucrat. Regional forester Chip Cartwright was placed on administrative leave in late September while he was investigated for alleged sexual harassment and for creating a hostile work environment. There was whispered speculation inside and outside his office that the harassment charges were mere sandbagging to shore up the service's justification for firing the highest-ranking African American in an agency sorely in need of diversity.

The litigation dance began back in 1989, when Dr. Robin Silver, an emergency-room physician from Phoenix, filed petition with the Fish and Wildlife Service to list the Mexican spotted owl as a threatened species under the Endangered Species Act. Silver had been moonlighting as a freelance photographer, photographing threatened and endangered species for Fish and Wildlife and for the Arizona Game and Fish Department, when he fell in love with the amiable, dark-eyed bird.

Silver's activism on behalf of the owl caught the attention of Peter Galvin and Kieran Suckling, fledgling environmental activists who did piecemeal work as owl spotters for the Forest Service in eastern Arizona and western New Mexico. By the time the Mexican spotted owl was actually listed as threatened in 1993, the three had joined forces to create the Southwest Center for Biological Diversity. Silver's name would go on the first of the suits to bring injunctions down on the Forest Service.

In August 1993, Silver and Galvin and attorney Mark Hughes, from the Denver-based firm Earthlaw, met with Fish and Wildlife officials to talk about endangered fish species and ended up speaking about Mexican spotted owls instead.

As they spoke, Hughes realized that Fish and Wildlife had never consulted with the Forest Service on the cumulative effect of logging on spotted-owl populations. An interpretation of the Endangered Species Act by the Ninth U.S. Circuit Court of Appeals in an Idaho case led the court to rule that such consultation was required by the law. When a species was listed, under that interpretation, the Forest Service would have to amend its forest plans, the blueprints for forest management, to accommodate the species. That December, Hughes and the Southwest Center filed their notice of intent to sue the Forest Service, and the case landed in Judge Muecke's Phoenix courtroom.

In June 1994, Judge Muecke ordered that the Fish and Wildlife Service designate critical habitat for the owl; that fall, Suckling and Galvin got their hands on internal memos indicating that the service had no intention of following the judge's order. The service continued to stall until August 24, 1995, when Muecke lost his patience and imposed the injunction forbidding logging on all national forests and Indian reservations in the Southwest until consultation was complete.

"Remember that Judge Muecke was handed a case with precedent in the circuit that already concluded that forest plans have to be consulted for species as they are listed," says Pat Jackson of the Forest Service. "That's what [the Idaho case] decided. And clearly this region had not done that for the Mexican spotted owl or a lot of other species. We're still working on other species. So I understand where Judge Muecke came out. He said clearly, 'You're in violation of the Ninth Circuit's interpretation of the law.'"

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