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,

The opinion in Albuquerque at Forest Service regional headquarters is that the agency won the case outright.

"If you're holding a trump card and you know you can win, you may not be willing to give up very much in a negotiating session. I don't care who you are," says Marlin Johnson, the region's assistant director of timber management.

The environmentalists say they won.
"We got a judgment in our favor," says Mark Hughes. "They paid our attorneys' fees, twice"--more than $100,000--"If that's the case, I hope they keep winning."

One day after Strand's judgment, the Forest Service announced that it had no intention of making its pending timber sales conform with the new owl and goshawk guidelines it had drawn up.

The National Forest Management Act says:
When land management plans are revised, resource plans and permits, contracts, and other instruments, when necessary, shall be revised as soon as practicable.

Even so, the Forest Service said that the pending sales were grandfathered in under the old guidelines and would cost too much to correct, not only in man-hours but in timber that would have to be bought back.

Hughes went back to court with a new lawsuit in December 1996, this time using the New Mexico environmental group Forest Guardians as lead plaintiff. When New Times called Milo Larsen, head of the region's timber program, to ask why the service was flouting yet another law, he responded, "That's what litigation is about. It'll just have to be argued out."

So sue me, in other words.
"We still don't agree that those sales need to be modified," says Pat Jackson.

U.S. District Court Judge Paul Rosenblatt agreed with the Forest Service and ruled against the environmentalists. Hughes appealed the case to the Ninth Circuit and on May 30, 1997, the Appeals court reimposed the injunction on the sales that needed to be amended. The court's decision is still pending. And loggers in eastern Arizona are still shut down.

Last July, when the Forest Service brought to the court's attention that the new owl and goshawk guidelines affected not just logging, but ranching as well, the Ninth Circuit extended the injunction to include grazing.

"The Forest Service made a big mistake" in admitting as much, says Kieran Suckling.

At the court's request, the service identified 715 affected grazing allotments, but, true to form, it said that it would assess them in its own sweet time.

Even if ranching is no longer a profitable industry in the Southwest, it is still an industry with a lot of political clout. The clout is exceeded only by the emotion it stirs, even inside the agency.

Forest Service biologists started leaking inside memos to the environmentalists.

The service had asked Fish and Wildlife to look at 64 other threatened and endangered species that might be affected by grazing on the national forests in the Southwest.

"They came back and told us verbally--nothing in writing--that based on what we'd given them, seven of the species they would have to respond to as a jeopardy call," says former Forest Service biologist Leon Fager.

"Jeopardy" is a legal definition under the Endangered Species Act meaning that the agency has to make some management changes to keep from wiping out a species. Among themselves, the biologists took to calling it the "whispered jeopardy call," and it affected four fish: the Little Colorado River spinedace, the loach minnow, the Sonoran chub and the spikedace; one plant, the Pima pineapple cactus; and two birds, the SouthCR>west willow flycatcher and the cactus ferruginous pygmy owl.

The service decided on short-term mitigation efforts to avoid having to move cows.

A fish biologist wrote in a report:
". . . management in this region has traded off its love and passion for the land in order to indulge economically questionable targets. Gifford Pinchot's philosophy of '. . . providing the greatest good for the greatest number . . .' has been distorted to a doctrine of providing the most economic use for the few. And this has resulted in the current situation: the FWS threatening a jeopardy call on our management, outside groups taking us to court (and winning) on the same issue, and we being the subject of widespread ridicule and derision."

Pat Jackson stonily dismisses such accusations as the opinions of isolated biologists.

But those opinions are shared by some of the service's line officers.
Doug Barber retired as Deputy Forest Supervisor of the Apache-Sitgreaves National Forest in eastern Arizona, arguably one of the most conservative, tradition-bound outposts in the Forest Service. But he says of grazing, "It's a broken system. If it went free-market, how many cows would remain on the land?"

The answer, in his opinion, is none.
Barber wrote an impassioned letter to New Mexico Senator Pete Domenici, saying, "Because grazing is part of the Forest Service's multiple use mission, the agency has the mindset that if a piece of land can be grazed, it must be grazed. It's as if the cows have an inalienable right to be there. So the taxpayers continue to spend far more than we take in every year to manage the grazing program, and then spend a small fortune to mitigate the damage caused by that program."

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