Government by Litigation
On Friday, July 12, 1996, the Southwest regional headquarters for the United States Forest Service sent out a press release to announce that it was about to break the law.
Charles "Chip" Cartwright, the regional forester, was giving the go-ahead to start cutting trees, even though a federal injunction had prohibited most logging in the region for nearly a year.
Because of a suit filed by the Southwest Center for Biological Diversity, an Arizona-based environmental group, U.S. District Court Judge Carl Muecke had ordered that the service consult with the U.S. Fish and Wildlife Service to determine how logging affected the endangered Mexican spotted owl. The two services had stalled inexplicably; the judge lost patience and imposed the injunction.
On that Friday at the close of the business day, the Forest Service faxed what it considered a biological opinion to the judge's Phoenix courtroom.
Arizona Diamondbacks vs. Los Angeles Dodgers
TicketsTue., Aug. 29, 6:40pm
All You Can Eat Value Pack - Mercury v Sun
TicketsFri., Sep. 1, 7:00pm
Phoenix Rising Football Club vs. Seattle Sounders 2
TicketsSat., Sep. 2, 7:30pm
All You Can Eat Value Pack - Mercury v Dream
TicketsSun., Sep. 3, 1:00pm
Phoenix Mercury vs. Atlanta Dream
TicketsSun., Sep. 3, 1:00pm
Cartwright faxed off his press release to the media, saying that the agency had satisfied the judge's orders and was sending the loggers back to work.
Then, without waiting for the judge's approval, Cartwright dialed up a conference call with the supervisors of the 11 national forests under his command. Only one of them, the supervisor of the Apache-Sitgreaves National Forest in eastern Arizona, was able to rouse any loggers on such short notice, but by Monday, two companies had crews out in the forest dropping trees as quickly as they could.
Though the Forest Service and its lawyers deny it to this day, they were breaking the law by directly violating a judge's order.
When Judge Muecke heard of the tree cutting, he was furious, and he ordered that it stop immediately.
"I'm not sure we even got a load or two of logs out," says Terry Reidhead, owner of one of the logging companies. "The timber administrator come out like at eight o'clock the next morning and shut us down again."
Muecke demanded the names of everyone involved in the decision to violate his injunction. Like a good soldier, Chip Cartwright dutifully stepped forward.
Muecke was recovering from surgery at his summer home in Flagstaff, and unable to travel, so he ordered Cartwright and the environmentalists to appear at the federal courthouse in Flagstaff.
But he was fit enough to skewer Cartwright, asking how a defendant in a case could declare himself the winner and then dismiss the judge.
"I have never run into that in my whole life," he told Cartwright.
The Fish and Wildlife Service and the Forest Service had previously submitted several biological opinions that Muecke rejected; he would knock down this latest version as well.
The injunction would stand until December, until after Muecke recused himself from the case and passed it on to Judge Roger Strand. Strand accepted the next biological opinion and lifted the injunction.
A day later, the Forest Service told the enviros that it had no intention of making its pending timber sales conform with the new guidelines for owls and goshawks that had been approved as part of the settlement. The enviros went right back to court, and by May, the Ninth U.S. Circuit Court of Appeals had imposed a new injunction against logging, which is still in effect.
To this day, Muecke remains flabbergasted that the Forest Service would so flagrantly violate his orders.
To this day, the Forest Service denies it did anything wrong.
At the same time Muecke was trying to force action out of the Forest Service, he was battling Governor J. Fife Symington III over several prison lawsuits against the State of Arizona. He'd already found the head of the Department of Corrections in contempt and was considering contempt charges against the governor himself.
As governor, Fife Symington made a great show of tangling with state and federal judges over those lawsuits and others concerning school desegregation, school funding and clean-air legislation.
All of the lawsuits had been brought by citizen advocacy groups trying to make state or federal agencies follow the laws on the books. Symington would excoriate the so-called liberal judges charged with upholding the law, creating a side show to distract the public from the facts of the cases, which are that the government was breaking the law, and citizen lawsuits were trying to force it to obey them.
Most laws are the result of a long deliberative process. Legislators and their staffers pore through reams of analysis, fight over wording, compromise and compromise again. Many of the laws have provisions built into them to allow the general public to file lawsuits to question the way they are carried out.
Those provisions are used especially in the environmental arena, especially in the Southwest. Citizen lawsuits using the Endangered Species Act, the National Forest Management Act, and the Clean Air Act, among others, are proliferating.
Citizen suits so threatened Arizona legislators that they rewrote the state environmental laws to prohibit suing polluters and to limit the scope of lawsuits that would try to make the Arizona Department of Environmental Quality enforce its regulations.
But the lawsuits are likely to increase. The current fashion among politicians and bureaucrats is to ignore the laws they don't like or that impinge on their special-interest constituents. Citizen lawsuits result. And then they dig in their heels and thump their chests and deny culpability even after they lose the lawsuits.
Perhaps most alarming is that the infractions go unpunished by the courts. One citizen advocate characterizes it as "official lawlessness," and if it doesn't lead to anarchy, it threatens to throw government into a state of entropy.
In 1994, for example, when the Arizona State Supreme Court ruled that the state's method of funding school construction was unconstitutional and ordered the state Legislature to fix it, then-Senate president John Greene defiantly asked, "If we don't do what they say, what are they going to do? I think the courts have gone too far."
Three years later, with a new Senate president, a new House speaker and a new governor, state legislators are still at loggerheads over how to meet the court's increasingly impatient orders. Why? Because of state politics and ideology, which are so much more important these days than actual human beings.
The big federal agencies blame their entropy on lack of funding or staffing. They claim that they can't possibly meet all the deadlines that the law requires of them. Or they can't keep track of contradictory statutes. Or they just don't want to make regulatory decisions that will cause some industry to call a congressman who will rain anger down upon them. Or they just don't like the laws. Which happens increasingly, given the shrill rhetoric from powerful antigovernment types who have cowed officials into submission.
"Some bureaucracies operate on inertia," says David Baron of the Arizona Center for Law in the Public Interest. "Doing nothing is what they do best, particularly when the law is directing them to do something that is going to make powerful people angry."
And so they get sued.
Although the general consensus among bureaucrats and advocates alike is that such suits are increasing geometrically, no one is counting.
The Arizona Attorney General's Office, for example, keeps no records of how many suits are filed to get state agencies to obey the law, but at New Times' request polled its attorneys and came up with an office memory of 40 such cases pending or settled within the past several years. Some drag on for decades at great cost to the state.
Arnold v. Sarn, for example, a case that forced the Legislature to fund mental-health care for indigents, has lingered in the courts since 1981, costing the state $3.4 million in attorneys' fees paid to plaintiffs and outside attorneys just in the past four years, not counting the cost of more than 5,000 attorney and legal assistant hours from AG staffers.
In the federal courts, the vast majority of citizen lawsuits falls in the environmental arena. And again, no one is really counting them--or the staggering toll they exact in resources, natural, financial and human.
In 1996, however, Washington Senator Slade Gorton demanded that the U.S. Department of Justice provide him "the number of lawsuits filed in any court against the Secretary of the Interior or any other federal officials, or the United States (with respect to 'takings' claims) involving the Endangered Species Act" between 1985 and 1996.
The Justice Department came back with 258, most of them since 1992.
Just one environmental advocacy group alone, Earthjustice Legal Defense Fund (formerly Sierra Club Legal Defense Fund), listed 76 "actions" on its 1997 legal schedule of suits filed all across the country on behalf of the environment.
"The Fish and Wildlife Service is currently involved in an unprecedented number of lawsuits involving the Endangered Species Act," read the opening lines of a 1996 memo written by the acting head of that agency. The year before, in a blatant attempt to limit the effectiveness of the ESA, anti-environmentalists in Congress had temporarily blocked adding new species to the endangered list. It didn't work.
"The year-long moratorium and budget cuts by Congress have resulted in a huge backlog of listing actions, which has precipitated additional litigation," the memo continued.
Especially in the Southwest.
In the past 18 months, the Southwest region of the U.S. Fish and Wildlife Service has faced 37 lawsuits (according to its informal logs) from both environmentalists and state and county governments suing to counter the environmentalists' lawsuits.
"Proportionately in the Southwest, we receive more suits than elsewhere in the country and we receive more Freedom of Information requests," says Jeff Humphries, a spokesman for the Phoenix office of the Fish and Wildlife Service.
The same is true of the U.S. Forest Service.
"My counterparts in the other regions tell me how much they pity us down here," says Leon Fager, a Forest Service biologist who retired last week as head of the Threatened, Endangered and Sensitive species section in the regional office in Albuquerque.
The glut in Southwestern suits is partly because of rapid and rampant development, butting up against the traditional commodities-driven economy--logging, mining, agriculture. Not only are those industries becoming less and less viable, the commodities themselves are running out.
Less than 10 percent of the nation's timber comes from the national forests, and a little more than 3 percent of that comes from the Southwest. The Southwest cattle industry is an even tinier blip on the national radar screen; less than 5 percent of beef comes from public lands, and an incalculable fraction of that from Arizona and New Mexico. Furthermore, those industries have to be subsidized to survive, and many public opinion polls show that the urbanites who now constitute the greater part of the Southwest's population would like to see them curtailed. And yet the Forest Service continues to manage its lands on their behalf.
The industries have strong lobbies. Ranching, especially, draws great power from the image that the cowboy holds in our national consciousness. And there is a strong Forest Service culture saying: This is the way we have always done things, and we have no intention of changing.
If the industry lobbies are effective, so are the environmental groups/litigation engines, such as Forest Guardians, Defenders of Wildlife, the Arizona Center for Law in the Public Interest and the Southwest Center for Biological Diversity, that generate the citizen lawsuits. The Southwest Center, for example, has filed petitions to list 33 species as threatened or endangered under the Endangered Species Act, and has filed 77 lawsuits against state and federal agencies since 1993 over dams and grazing and logging projects. So far it's got a win-loss record of 35 and nine, with 30 cases still in the courts.
The cumulative effect of the lawsuits is causing government agencies to lash out like a dog biting at a swarm of bees.
"We're not able to concentrate on landscape or ecosystem management because we're constantly being called back to list this species or defend ourselves in this lawsuit, and we pull good biologists off their work to conduct this work," says Jeff Humphries of the Fish and Wildlife Service.
Felicia Marcus, regional administrator for the U.S. Environmental Protection Agency, admits that her agency treats citizen suits like diagnostic indicators.
The law sets out numerous rules and deadlines for responding to laws like the Clean Air Act.
"We can't possibly keep up with them all," Marcus says. Before coming to the EPA, Marcus was an attorney filing lawsuits on behalf of environmental groups. Now from the defendant's side of the case, she still says the suits "are important in prodding us all to move forward. Without citizen suits to keep the agency moving, it wouldn't be anywhere as near as we are in this country to getting clean air. And we are making progress."
But in the process, is she abdicating the agency's responsibility for setting and enforcing policy?
In fact, the EPA has been sued more than a dozen times since 1985 by David Baron of the Arizona Center for Law in the Public Interest for not imposing Clean Air Act standards on the cities of Phoenix and Tucson. Those suits have resulted in state auto-emission tests, clean-burning fuels, dust-control standards on construction and a host of other measures, which Baron feels were only extracted from a resistant EPA under threat of court sanctions. The agency delayed, postponed, granted extensions, set bare-minimum guidelines and even approved plans that violated the law.
To Marcus' protestations, Baron thinks the agency's perennial tardiness is based in cowardice.
"It's got nothing to do with resources," Baron says. "The agency refuses to disapprove a state clean-air plan not because it's going to require any more resources for them to disapprove it, but because if they do, the governor's going to get mad at them and the legislators will and the congress people will. And so they do whatever they can to avoid that result."
Baron's suspicions seem borne out in that whatever standards the agency is forced to impose unleashes a torrent of criticism. The daily and business papers run litanies by free-market editorialists whining about what the new rules will do to business, asking why the EPA is so mean to us when the air is getting cleaner. None of them mentions the Gulden's-mustard-colored cloud that hovers over downtown--or that not being able to breathe is bad for business.
"We haven't had a [carbon monoxide] violation in the last two years," says former Symington aide Chuck Coughlin, who is now a consultant with the firm High Ground. "We have the most aggressive set of CO control measures of any place in the country, but [Baron's] got the EPA following bureaucratic measures in order to hassle us to continue to do more."
One man's "bureaucratic measures" are another's "law enforcement."
Yet even Marcus, the EPA's regional administrator, will defend the suits.
"I don't necessarily agree with the timing or the substance of every single suit filed," she says. "But I think they're all legitimate because the law is there for a reason. Some people critique others for filing lawsuits, as if they're doing something wrong. All they're doing is trying to get the law complied with, which is their legitimate right to do."
That outrageous statement belies an institutional exasperation that says, Yup, we can't enforce the law by ourselves.
The thought and deliberation that went into a bill like the Clean Air Act can be tossed out by the expedience of the bottom line of special interests.
For example, Arizona Congressman J.D. Hayworth is co-sponsoring legislation to postpone the latest national clean-air guidelines signed into law earlier this year. In October, Arizona Citizen Action, a political-watchdog organization, pointed out that Hayworth had taken $86,000 worth of campaign contributions from the Air Quality Standards Coalition, an alliance of miners and developers and oilmen and loggers and farmers whom Hayworth helps on many fronts, not just preventing clean air.
"You'd think the political self-interest would be in representing the urban constituents who care about the watershed and the airshed and the wildlife and the tourism," says Rob Smith of the Sierra Club. "I don't think they are representing their constituents. The [politicians] that vote against the environment get markedly higher campaign contributions from polluters and developers. In many cases, [they're] actually thwarting the will of their constituents."
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."
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.'"
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.
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."
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."
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
Get the ICYMI: Today's Top Stories Newsletter Our daily newsletter delivers quick clicks to keep you in the know
Catch up on the day's news and stay informed with our daily digest of the most popular news, music, food and arts stories in Phoenix, delivered to your inbox Monday through Friday.