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,

A A A Comments By Michael Kiefer Thursday, Dec 11 1997

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If they were to change their policies, Leon Fager says, "The political heat would come down from all levels. There could be some life-threatening situations in Catron County [New Mexico] and like that."

Pat Jackson denies that he was consulted by any congressmen, but they rode in CR>to rescue the service like the cavalry in a cowboy movie.

Senator Domenici ripped off a letter to Attorney General Janet Reno asking her to step in and end the injunction. Then Domenici and Arizona Senator Jon Kyl attached a rider to the Interior Department appropriations bill in October, ordering that no funds be spent to take cattle off Forest Service allotments under the terms of the injunction. The rider passed unquestioned, and the grazing injunction was sidestepped.

The Ninth Circuit has yet to rule.
Meanwhile, the Forest Service has its fingers crossed over the outcome of a case before the U.S. Supreme Court. At issue is whether the administrative documents called "forest plans," which were mandated by the National Forest Management Act, can be used by attorneys for the kinds of cumulative effects on which Hughes and others have based their cases. Environmentalists instead will have to appeal project by project, timber sale by timber sale, instead of looking at the cumulative effects across the forest.

"The Fish and Wildlife Service has never ruled that an individual timber sale has jeopardized either the Mexican spotted owl or the northern owl," says Kieran Suckling. "And that's probably true. However, when the Fish and Wildlife Service looks at all the management plans in the Southwest together, they say, yes, this program will jeopardize the owl."

Or grizzly bears, salmon, goshawks and other wide-ranging species, which are harmed not by an individual timber sale, "but from the cumulative effects or from a programmatic plan," says Andy Stahl of Forest Service Employees for Environmental Ethics. "The Forest Service does not want to fight those issues on a programmatic basis where you can show the judge how bad it looks regionwide. They want you to litigate whether the spotted owl will go extinct in the context of cutting 10 acres. And you can't do that."

But if the decision falls on its side, it would bring the service closer to its ideal.

Litigation-proof land maCR>nagement.

Next week: Scoff-lawmakers