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,

But that information was not for public consumption. Instead, Judge Muecke was vilified in the press. Fife Symington, who was already feuding with the judge over the prison lawsuits, stepped up his vocal attacks on federal judges. Some of the environmentalists were hanged in effigy. That October, 400 loggers in giant logging trucks circled downtown Phoenix to protest Muecke's injunction. J.D. Hayworth lectured them on jobs and freedom.

None of which brought the environmentalists and the federal agencies any closer to settling the lawsuit.

In April 1996, the Fish and Wildlife Service and Forest Service finally issued a document that they called a biological opinion. Hughes recalls that it was lacking basic information legally required in such a document, notably an indication of whether the species was in jeopardy and if there were "reasonable and prudent" alternatives to the existing plan.

"The Forest Service was saying, 'If you don't like this biological opinion, then go and sue the Fish and Wildlife Service, don't come to us,'" says Kieran Suckling of the Southwest Center. That would buy at least a year for the Forest Service.

Instead, Hughes argued, and the judge agreed, that no biological opinion existed.

Then in July, the Forest Service made its announcement that the injunction was over.

Pat Jackson says the decision came from Mike Johns, the assistant U.S. attorney in Phoenix assigned to defend the service in the lawsuit. According to Jackson, Johns said, "Shoot, the way this is written, I think you guys can rock and roll."

"It was an order signed by Judge Muecke," Johns says. "He was the one who defined when activities were supposed to terminate."

Muecke's order had said simply that the injunction would end when the consultation was completed. Johns insists with a straight face that there was no stipulation that the judge had to approve the consultation before the injunction was lifted.

"I've known Judge Muecke all my legal career. I certainly wouldn't violate one of his orders," he says. "It was written the way it was written so that a final judgment could be entered terminating the case, and it's a self-executing order."

The mere suggestion throws Muecke into a rage.
"Who is going to approve them, then? Santy Claus?" he bellows. "I never heard of anyone unilaterally saying they won without the judge giving them a judgment."

Mary Ann Jocha, who is with the service's office of general counsel in Albuquerque, dismisses the judge's anger even more rudely.

"He was probably taking too many pain pills," she says, referring to the judge's recovery from surgery.

In hindsight, even Pat Jackson admits, "Maybe a more conservative approach would be to request leave of the court to proceed, but it certainly wasn't incumbent on us pursuant to his instructions in writing."

And the loggers concur.
"I can't imagine they'd go ahead without somebody telling them they could go ahead," says Terry Reidhead.

Lewis Tenney feels that the service was issuing a challenge to the court.
"Hindsight's better than foresight," Tenney says. "I think it was an attempt by [Chip] Cartwright just to move forward. But you were dealing with a judge who was very pro-injunction and hard to deal with, and they should have been more diplomatic about it."

But then he thinks a moment longer and says, "I'd like to see them take more of that kind of approach," and challenge the courts more.

The standstill hinged on two points: The agencies were still looking at individual projects that by themselves had no impact on the owls, adding them up, and saying "zero plus zero equals zero." The enviros felt that ignored cumulative effects. Secondly, the Forest Service was refusing to change any pending logging projects to agree with the new guidelines they'd written to accommodate owls and goshawks. This would be grounds for the next lawsuit.

The injunction dragged on, and Muecke dragged both sides to Phoenix, locked them in a conference room, and told them not to come out until they had reached agreement. The feds refused to deal. Tempers got so hot that on October 3, 1996, John Marshall, a Justice Department lawyer representing the Forest Service, got up from his seat at the bargaining table, grabbed attorney Hughes by the lapels and slammed him against a wall, breaking his glasses. Robin Silver pulled Marshall off of Hughes and pinned him to a table until Mike Johns was able to hustle Marshall out of the room and calm him down.

Pat Jackson, who was also sitting at that table, describes the incident more as a "bump," to which Hughes responds, "Bumping, I guess, is a term that can include many variations of human behavior, including putting hands around another person's neck."

Muecke never heard about the conference-room fight.
He retired that fall and the case was transferred to the court of Judge Roger Strand. The Forest Service submitted another revised biological opinion on November 25, 1996. The new opinion met the legal criteria for a biological opinion; it claimed that the owl would be in jeopardy of extinction under the existing forest plans. However, the Forest Service had amended its owl and goshawk guidelines during the course of the trial to take care of the problems. The environmentalists did not agree with the document but did not contest it either. Strand lifted the injunction December 4.

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