Owl See You in Court
Like two boys at the swimming hole, Kieran Suckling and Peter Galvin pulled off their shorts and tee shirts and jumped feet-first and butt-naked into the coffee-with-cream-colored waters of the San Pedro River just east of Sierra Vista. It had been a hot-desert hike down from the main road. And though the big trees hugging the riverbanks, nature's swamp cooler, had dropped the temperature ten degrees, the water was just too inviting.
In Michigan or Pennsylvania, Arkansas or Florida, the San Pedro River might be called a creek or a stream--or maybe even be mistaken for a drainage ditch. But here in Arizona it passes for a river. In fact, it's the last major undammed, unchanneled perennial stream in the state. Because it floods when it wants to and runs where it wants to, it's a magical remnant of what desert riparian areas once were, not very many years ago: cottonwoods and willows and songbirds and cattails.
Just two generations back, the Salt River between Phoenix and Tempe was an even larger oasis of grass and green trees. It has only been a gravel pit since Roosevelt Dam was dedicated in 1911.
Kieran and Peter are the co-founders with Dr. Robin Silver, the Phoenix-based environmentalist and candidate for Congress, of the Southwest Center for Biological Diversity, a Tucson-based environmental think tank.
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No one ever seems to refer to them by anything but their first names: Kieran and Peter. It's not in a one-name celebrity sort of way, but more in the style of Sixties-radical activists like Jane and Jerry and Abbie. Even people who don't like them very much refer to them by their first names. And there are plenty of people who don't like them, because they are arguably the Southwest's most ardent and irritating environmental activists.
An earlier generation of hard-core environmentalists engaged in civil disobedience and the kind of eco-sabotage pranks that late author Edward Abbey called "monkeywrenching," and Kieran and Peter cut their teeth on Earth First demonstrations. But now they work through the legal system, feverishly filing lawsuits and using the Endangered Species Act as a bludgeon to slow or stop development.
They have filed countless petitions to list plants and animals as endangered, appealed countless timber sales and grazing leases, written countless Freedom of Information requests to monitor the activities of the U.S. Forest Service and the Fish and Wildlife Service. And they were instrumental in bringing about federal Judge Carl Muecke's injunction last August forbidding all logging in the Southwest until the Forest Service grudgingly analyzes the effects that logging has on the threatened Mexican spotted owl. That injunction still stands.
"If it weren't for them, thousands and thousands of acres of Southwest land would have been lost," says John Talberth of Forest Guardians, a New Mexico environmental group that is a co-plaintiff in the owl injunction. "They are one of the hardest working groups I've ever encountered."
"I think in many ways they're the center of the movement in the Southwest," says Dave Foreman, the founder of Earth First and the Wildlands Project. "It's this umbrella effect of bringing science into conservation. They have effected a revolution in this regard."
Kieran, 31, is a lean Peter Pan with eyes as brown as a spotted owl's and a high reflective voice that sounds as if it modulates through some higher plane. Peter, 32, is a longhaired wood gnome with a gentle manner that hearkens back to early Seventies hippies. If they are at odds with federal land management agencies, they are even more despised by the industries that accuse the feds of mismanagement.
At night their bearded faces slip into the American West dreams of ranchers and loggers and make them sit up suddenly in bed gasping and sputtering about spotted owls and godless socialism.
Because he is often the spokesman, Kieran seems to particularly raise hackles.
"I think the man is power hungry," says J.T. Hollimon, a rancher from Catron County, New Mexico. "He has an agenda and that agenda is to shut down the West. He has an enormous amount of power. He alone, through the judge down there [in Phoenix], can dictate to us, and he shouldn't have that power. They are going to put us out of business or force us to revolt."
And when Congressman J.D. Hayworth looks in his dictionary under "radical environmentalist," he sees an image of these two bearded men floating naked in an Arizona river just itching for development.
They and Robin Silver have already filed and lost two lawsuits trying to force the U.S. Army at nearby Fort Huachuca to evaluate all of its ongoing projects to see how they affect the San Pedro's riparian area. They're wary of the growth boom envisioned by the town fathers of the city of Sierra Vista, afraid that as the city pumps groundwater out of the underground aquifer, the river will be sucked down into the water table to take its place.
The city is embarking on a project to pump treated waste water into the ground to recharge the aquifer.
"We're trying to offer solutions to the San Pedro River and the water issues in the area," says Sierra Vista city manager Chuck Potucek. "The only solutions that the Southwest Center brings to the table are the pain and public costs of litigation."
"There's not a problem with doing water recharge," Kieran counters. "It's a good thing. The problem is that they're selling this in Sierra Vista as a solution to all problems, and now development can march forward."
As a preemptive strike against development, the center and its biologists filed petitions to list the riverside's flora and fauna under the Endangered Species Act: the spikedace, a fish in its water; the Sonoran tiger salamander; the Chiricahua dock, a plant on its banks; the Southwestern willow flycatcher, a bird, in the low tree limbs; the cactus ferruginous pygmy owl in the taller trees.
"With the combination of all those species together in the area, it has to be protected," Kieran says. "It boxes them in so that they finally have to say, 'All right, we give up. We're going to come up with a complete plan.'"
I met Kieran Suckling and Peter Galvin four years ago when they were contract owl surveyors--or "hooters"--for the U.S. Forest Service on the Apache-Sitgreaves and Gila national forests.
They were wild as woodchucks, with bushy beards and excited eyes. Their eyebrows threatened to jump full off their faces as they whispered about midnights lost in the woods, stumbling up and down forest drainages. The spotted owl call is an aching melancholy sound: three barking quarter notes in a minor key and a long half note that trails off in the darkness. Kieran and Peter would hoot their best impersonations and then wait for an answer.
Spotted owls are candid and curious birds. They will fly down to visit with their hooters and perch on a low branch nearby as if to ask "Why'd you call?" Unlike most owls, which have yellow eyes, spotted owls have deep brown eyes which they fix attentively on their visitors. That personality seems to bring an unexplainable mysticism out of the people sent to find them.
And an equally unexplainable hostility out of the loggers who look to them as a symbol of the death of their industry.
At the time, Peter and Kieran lived in Luna, New Mexico. I had suggested that we meet at a bar in Alpine, a tiny hamlet just over the border on the Arizona side, and they laughed nervously at the suggestion. Because of their fledgling activism on behalf of owls, they'd had people defecate on their cars, had windows broken and tires slashed. One of their friends had been beaten up in a bar, and they figured the same would happen to them.
The locals didn't feel that a pair of East Coast longhair punks had any business telling them how to do their jobs, and Peter and Kieran, being hopeless smart alecks, had not helped their cause by printing up stationery with a letterhead that read "Two Guys From Massachusetts."
The restaurant across the street from the bar was frequented more by families and tourists than by loggers, and since there was no alcohol served there, they thought it might be a safer meeting place. It was well after dark when we finished eating and talking, and their enthusiasm was just gushing out of them. They suggested that right then we should jump in their broken-down Subaru station wagon and drive several hours over rutted and muddy Forest roads through a pounding monsoon rain to look for owls.
They seemed insane.
Now they consult with U.S. senators and Washington bureaucrats and give pithy quotes to the New York Times.
The Southwest Center for Biological Diversity operates out of a big Santa Fe-style house in the desert in East Tucson, just a ground squirrel's jump away from Saguaro National Monument. For want of a better word, it's a commune, with nine biologists--seven men and two women--living among the computers and copiers and fax machines. They move silently through the compound, clearly deferring to Kieran.
A woman shuffles through the kitchen with a towel wrapped around her on the way to the shower; a man stands at the stove, stirring together rice and beans and vegetables which he then spoons into his mouth, guy-style, over the sink while he looks out the window.
On the kitchen wall is an improvised poster showing the comic-strip character Calvin, grimacing and brandishing two clenched fists. The poster's headline says, "Testosterone-deprived Skinny White Boys Eco-Defense Project," and the type beneath the headline reads, "Fight for the protection of habitat. We have obtained critical habitat designation for the following species: men, flies, rats, worms, Bermuda grass, snails. Join us in the fight to protect the species that are currently taking over our planet."
Because the staffers make as little as $400 a month--Kieran, as director, makes just $1,000 a month--the center provides them with room and board.
One lives in a converted school bus out front, another lives in a tepee out back by the vegetable garden.
"It's a middle-class tepee," Kieran says, because it has a cot and a stereo in it. But given the gaps between the dirt floor and the tepee walls, one supposes that at night it becomes a southwest center for scorpion study.
Many of the staff biologists are recent graduate students, and indeed the center's positions are more like a Peace Corps stint than a job, or a postgraduate internship, a way to live a graduate student's dream life, drinking coffee and reading and working through the night.
And if the blurring of living and working expenses is an accountant's worst nightmare, Kieran wants it that way. He wants to have people available to answer the phone 24 hours a day. One year Kieran and Peter worked through Thanksgiving faxing letters to the Forest Service, just so service officials would come in the day after, have a stack of documents waiting for them and realize that their environmental opposition didn't take days off.
"One of the reasons they get things done is the old American way of doing things," says Mark Hughes, an attorney with the Denver firm Earthlaw, which does legal work in the public interest. "They've used limited resources, but they've worked hard, and they've told the truth."
Although Kieran's and Peter's personal views on the environment may tend toward the radical extreme, their methods do not.
Congress has written plenty of laws to protect the environment--The Clean Air Act, The Clean Water Act, The Endangered Species Act--but it has not done a good job of seeing that those laws are enforced. In fact, they are under attack by a new generation of politicians looking to deregulate the world to make it more lucrative for private industry. And despite their evil reputations as jackbooted overregulating thugs, the agencies charged with protecting the environment--the Fish and Wildlife Service, the Environmental Protection Agency--are overworked and underfunded, or, sometimes, just willing to look the other way. The Forest Service in particular has gone out of its way to keep the timber industry operating. And so the work of the Southwest Center for Biological Diversity consists mostly of making the U.S. government enforce its own laws, a decidedly nonradical undertaking.
Since 1991, the center has successfully filed petitions to list 24 species of plants and animals as threatened or endangered under the Endangered Species Act. Among the species the center has listed are the Mexican spotted owl, the Northern goshawk, the southwest willow flycatcher, the cactus wren, the California gnat catcher, the spikedace (a fish), and a number of butterflies. Each of those listing petitions entails an exhaustively researched scientific description of the plant or animal and its habitat and why it is threatened.
The center's garage has been converted into a library that contains shelves and shelves of forest maps, tall rows of file cabinets filled with legislation and legal documents, scientific papers arranged by species, historical records and correspondence gleaned through extensive Freedom of Information requests. Even five years ago, environmentalist campaigns were based more on emotion than hard science and law. The center's library, however, is a repository of meticulous research and an indicator of why the center has been so effective.
Kieran and the staff biologists spend much of their time writing "white papers" commissioned by other environmental groups, treatises on fire and forest health, on grazing and on dwarf mistletoe, a parasite plant that preys on ponderosa pine and is often used as an excuse to cut old-growth trees.
Since 1991, Kieran and Peter and Robin Silver have filed nearly 50 lawsuits, including litigation to stop the channeling of the Gila River, which would prevent flooding and consequently change the ecosystem of the river. They sued to stop the raising of water levels in Roosevelt Lake, which would imperil the Southwest willow flycatchers living near the water line. (Flycatchers are site specific, meaning that when their nests go underwater, they won't build new ones elsewhere.) Both of those lawsuits are ongoing.
When the Fish and Wildlife Service refused to recognize the Northern goshawk as threatened in the West, the center successfully sued to make the agency reconsider. The federal judge in that case lectured the service on the whimsical inconsistencies in how it assesses its listing criteria. The inconsistencies, of course, had been discovered and assembled by the center's staff researchers.
They've appealed dozens of timber sales and grazing allotments; recently they appealed a grazing permit in pastures on the banks of the lake that provides drinking water to the city of Flagstaff, because cattle feces carries the deadly cryptosporidium parasite, which is so tiny it cannot be filtered out by conventional water treatment and so resilient that it cannot be killed by safe levels of chlorine.
And because of their work, they've received grants from the Turner and Harder and Levinson Foundations, the Center for Deep Ecology and Patagonia. Four years ago, they were a handful of hippies operating off of unemployment checks; now they claim a membership of 3,000 and a budget that has grown to $231,000.
Last October, Peter took a leave of absence from the center and moved to Flagstaff to be campaign director for the Southwest Forest Alliance, which is an umbrella for 50 separate environmental groups, including the Sierra Club and the Southwest Center for Biological Diversity.
"He works about 80 hours a week for us and then works on projects for the Southwest Center in his spare time," says Sharon Galbreath of the Sierra Club, who sits on the board of the Forest Alliance.
Kieran meanwhile, hobnobs with Washington bureaucrats and speaks before U.S. Senate committees. The New York Times calls him for quotes on wildland fires and other forest issues.
All of which is heady stuff. Behind his back, leaders of less-visible environmental groups worry that Kieran's ego may be growing in proportion to the amount of grant money he snags. And that when Kieran uses the pronoun "we," it's hard to tell whether he means the Southwest Center or the Southwest Center in conjunction with dozens of other grassroots groups. In the environmental world, it is bad form to take credit for group work, making it difficult to determine exactly where one or another impetus originated.
The lawsuits are usually cooperative ventures even if the center's name goes first on the paperwork.
The white papers are contracted by the Forest Alliance.
"We pay them to do that work," says Sharon Galbreath, a bit uncomfortable with the assumption that they are Kieran's thoughts as opposed to the collective thoughts of the Forest Alliance.
But because they are willing to live like penniless monks, Kieran and Peter can work full time on environmental issues, unlike the majority of grassroots environmentalists, whose time is consumed by jobs and families.
Some of the Endangered Species Act listings included in the center's promotional material were actually filed by Dr. Robin Silver while he was affiliated with the Maricopa Audubon Society and before he was formally part of the Southwest Center.
Silver gave tens of thousands of dollars to Kieran and Peter in the years before the grants started flowing in. He is renowned for his own exhaustive--some would say fanatical--research and activism. But he is happy to let Kieran and Peter take the credit. He has other promises to keep: a medical career to tend to, and his race for Congress in the Republican primary against the antienvironmentally opinionated John Shadegg ("Silver Versus Shadegg. Rad," July 11). And although Silver has no desire to live their lifestyle, he has great respect and admiration for them.
"They're the heroes of the future," he says.
Kieran Suckling is often identified in the press as a biologist. Technically, he is not. If and when he finishes a long overdue dissertation, he will earn a Ph.D. in philosophy.
His first name is Irish, like his mother, his last name, English, like his father. He was the first in his family to be born in the United States, in Boston, to be precise, but his family moved out of the country while he was an infant.
Kieran's father was an engineer who built power plants, and after his work was finished in Boston, he took his family to the next project in Peru. As a toddler, Kieran spoke more Spanish than English. But after the family moved back to the States, the Spanish left him, irretrievably, like some lost computer file.
Because his father was an engineer, and his brother became an engineer, it was assumed that Kieran would be one, too.
His uncle was a Jesuit, and he gave Kieran the run of his private library. Kieran borrowed the entire philosophy department. After three years of studying engineering, he switched his major to philosophy.
As a graduate student in the philosophy department at the State University of New York at Stonybrook, he was wracked by social concerns and the existential hand-wringing philosophies that most students encounter in college. But then he became enchanted by the natural world and man's place in it, transforming himself from Schopenhauer to Candide, Voltaire's optimist, who thought that the purpose of life was "to cultivate our garden."
Then rather than write that dissertation, he fled out West where the garden was still growing wild.
Whereas Kieran is introspective and somewhat aloof, Peter Galvin is effusive and easygoing, but so passionately committed to his cause as to be a prisoner of it. When he was 15 years old, he'd had a brush with cancer, and when he survived, he promised God that he'd live a life of service, though he wasn't sure what it would be.
In the traumatic wake of the cancer surgeries, he'd become a bit of a loner, and so his mother enrolled him in a private school close enough to their Framingham, Massachusetts, home that he could ride there on a moped.
One of his teachers was Thomas Lewis, who had spent time in prison as one of the Catonsville Nine; he, the radical Catholic priests Daniel and Philip Berrigan and six others were convicted of breaking into a Selective Service Office in 1968 and burning draft records with homemade napalm to protest the war in Vietnam. Lewis gave Peter an education in civil disobedience, taking him and other students to local protests at nuclear power plants.
And so later, when Peter packed off to Lewis and Clark College in Oregon, he thought he'd study political science. He got caught up in more protests and social causes: apartheid, and eventually, given the Northwest logging debate, forest issues.
He was arrested at protests organized by Earth First, the radical environmental movement founded by Dave Foreman and based loosely on the monkeywrenching tactics written about in the novels of Edward Abbey. After two years, he dropped out of school and took a job selling ads for a left-wing alternative newspaper; eventually he became its environmental editor.
But his interest in the environment brought him to Prescott College where he finished his degree in political science and environmental studies. (He has since earned a master's degree in conservation biology.)
In 1989, Peter got a summer job as an owl surveyor up in Alpine. Robin Silver's listing petition for the spotted owl had been filed that year, but the Forest Service was already surveying the owl population. Theoretically, once the birds and their nests were found, they would be pinpointed on a map so that they could be avoided when the forest was logged.
Kieran had met a friend of Peter at an Earth First protest in New Mexico (where he'd happily been arrested); the friend told him Peter was looking for more owl spotters, and so Kieran got himself hired. A year later when Peter graduated from college, Kieran persuaded him to move to Luna to work full time on the environment.
They lived a shoestring existence in a wood-heated ranch house that had neither plumbing nor electricity. In the summers, they searched for owls for the Forest Service and in the winters they lived off of unemployment checks. They each started environmental organizations: Peter's was Friends of the Owl, Kieran's the Greater Gila Biodiversity Project. Despite the grandiose and all-encompassing names, Kieran's group consisted of about five people and Peter's consisted of Peter and his girlfriend.
Luna is in Catron County, a hotbed of the Wise Use, antienvironmentalist movement, where county officials have tried to take over federal lands and pass laws requiring environmentalists to register with the government. After appealing timber sales and speaking out on environmental issues, it was only a matter of time before Kieran and Peter were run out of town. Their landlord told them he'd gotten so much pressure from the community that he had no choice but to evict them.
They moved 200 miles, as the owl flies, to Silver City, New Mexico, which is still in the heart of ranching and timber country, but has the mitigating and liberalizing effects of being a mecca for urbanites seeking a picturesque Heart-of-America lifestyle.
"That was a big move for us," Kieran remembers. "Suddenly we had telephones and fax machines and Kinko's." They stepped up their efforts and their membership, and started attracting grant money.
Peter's interest in spotted owls had brought him together with Robin Silver, and they worked together more and more frequently. Silver had filed petitions on the spotted owl in 1989 (it was finally listed as a threatened species in 1993) and he was in the center of a fight with the University of Arizona over its proposed Mount Graham telescopes.
The center appealed more timber sales and grazing leases, and started suing on behalf of endangered species. And it earned the enmity of the citizens of Silver City, as well.
"They keep trying to use the Endangered Species Act as a weapon," says Tina Ely, publisher of the Silver City Daily. "In my estimation, it's the beginning of the end of the West. I want the wilderness to be here for my kids, but I don't want them dictating to us. You compare them staying home on grant money versus people out making a living and supporting our schools."
If being an environmentalist wasn't enough to turn many of the locals against a man, in 1994 Kieran further sullied his reputation by committing an uncharacteristically stupid act.
He was caught shoplifting a pair of hiking boots and some bedroom slippers at Wal-Mart. He pleaded no contest and was fined $67. He still can't explain why he did it, other than the stress of the center's work, compounded by breaking up with a girlfriend.
"I was desperately poor, which is not an excuse," he says. "It was a bad combination of poverty and stupidity--mostly the latter. And I hurt the environmental movement down there."
Peter was horrified.
"If Peter had had his way, I would have been fired," Kieran says. Peter wanted Kieran to be reassigned for a year, but the center's board decided instead to suspend him from the director's job for three months and bar him from talking to the media for six months. The locals began calling him "The Shoeman." And the other New Mexico environmental groups worried that Kieran had lost "his moral compass." Some cut him off altogether. Despite it all, the Wise Use opposition failed to make hay of the embarrassing arrest.
A year later, it was time to move on anyway.
No one remembers exactly when the Greater Gila Biodiversity Project became the Southwest Center for Biological Diversity. The latter name emerged sometime in 1994. The group's interests had spread well beyond the Gila National Forest. They wanted to start canvassing, wanted to increase their membership and get more involved in politics. They needed the infrastructure and liberal attitudes of a bigger city. A city like Tucson.
The growth of the Southwest Center for Biological Diversity corresponds with a general shift in environmentalism from emotional tree-hugging to science-based activism.
Kieran Suckling has been teaming up of late with Wally Covington, the Northern Arizona University forestry professor who has emerged as a prominent theorist of forest health.
Covington has proven that because of logging and fire suppression, the Southwestern ponderosa pine forests have been transformed from open landscapes dominated by big trees to dense thickets of smaller diameter trees. He advocates the removal of the thickets by thinning and controlled burning and warns that no more large diameter trees should be cut.
He and Kieran have co-authored opinion pieces for national newspapers on the importance of forest health. And recently, Arizona Senator Jon Kyl's office drafted legislation to help further Covington's research. Its preamble called itself "a bill to carry out a Southwest forest ecosystem health restoration demonstration project to demonstrate how to halt and reverse the decline of forest ecosystem health on federal land on the Southwest." Much of the wording comes from a set of forest-health recommendations that Kieran wrote for the Southwest Forest Alliance. At least until the last few pages.
In the interest of expediting the "demonstration project," the draft legislation calls for exempting the project from the National Environmental Protection Act, the Endangered Species Act and the Clean Air Act to allow the land management agencies to act at their own discretion--leading many environmentalists to suspect that the bill is really a Trojan horse. When left to its own discretion, the Forest Service usually errs on the side of the timber companies.
"If it's such a great bill, it doesn't need to be exempted from public participation," says the Sierra Club's Sharon Galbreath.
Actually, the bill may be an attempt to cut environmental regulations--and cut environmentalists out of the decision-making process.
Greg Smith, the staffer in Kyl's office who wrote the bill, says that the bill will not likely see the light of day this year. And then he explains that there is not much commercial logging in the Southwest anyway, and that most logging is done for "forest health." Of course nearly any timber stand can be described in "forest health" terms to justify cutting.
On a recent Sunday afternoon, Peter Galvin hiked through a timber sale west of Flagstaff in the Kaibab National Forest supposedly predicated on improving forest health by removing trees infested with dwarf mistletoe. By some curious coincidence, most of the trees on the sale that had been marked to be cut were huge, centuries-old yellow pines. The doghair thickets and smaller trees--the ones that indicate bad forest health--were to be left standing.
And as for Greg Smith's contention that there is not much commercial logging in the Southwest--if that were true, why then is there such an uproar about the federal court injunction against logging here?
U.S. District Judge Carl Muecke's August 1995 injunction, which stopped all logging in Arizona and New Mexico until the Forest Service publishes a valid biological opinion on the effects of logging on the Mexican spotted owl, has been painted as an example of the federal court's overreaching power. Muecke and two of the New Mexico environmentalists that are party to the suit, Sam Hitt and John Talberth, have been hanged in effigy. And last October, 400 angry loggers in semitrucks converged on the State Capitol in Phoenix to hear Congressman J.D. Hayworth and other speakers talk about jobs and freedom and owls.
In fact, the injunction came in response to magical thinking by the Forest Service and an inexplicable refusal by the federal government to follow the law.
The Southwest Center's role in the matter dates to August of 1993, when Peter Galvin, Robin Silver and the attorney Mark Hughes from Earthlaw met with U.S. Fish and Wildlife Service officials to talk about two endangered fish species, the spikedace and the loach minnow. The conversation turned to Mexican spotted owls, whose habitat includes the steep slopes of ponderosa pine forest.
Robin Silver's name, of course, is synonymous with the Mexican spotted owl, and Peter and Kieran had been skirmishing over owl territories since their owl-spotting days. Once, while in Forest Service regional headquarters in Albuquerque, a Forest Service employee showed them the maps that pinpointed about 900 spotted owl territories in every forest in the Southwest. Then with a wink, the employee told them he was going out to lunch and he left them in the room with the maps.
Peter and Kieran quickly hustled the maps over to the nearest Kinko's and made copies of them.
"We've used them very extensively," Kieran says, "because every time there is a timber sale proposed, we're able to look at our maps and tell where the owls are. And that is important because the Forest Service routinely lies and says there are no owls, when there are."
When it analyzes the biological impacts of any particular timber sale, the Forest Service biologists tend to look at those few acres being logged rather than looking at the habitat as a whole. In other words, they may leave a suitable amount of territory right around an owl nest, but not leave enough forest for the nestlings' offspring to build nests of their own, making it difficult for the species to rise above its threatened status. And the Forest Service was not considering the effects of backing one sale up to another on the forest as a whole.
"If you're looking at a species that lives in a three-acre pond, that might be sufficient," Hughes, the lawyer, recalls. "But we're talking about an owl that ranges over a wide amount of area. We were very concerned that they were missing the cumulative impacts of their actions overall."
The Fish and Wildlife Service is the federal agency charged with protecting endangered species. Yet, Hughes continues, "I was sitting there listening as Fish and Wildlife biologists were describing the nature of the problem to us and saying there was nothing they could do about it under their regulations."
"It became clear to me that the problem was that they hadn't consulted [with the Forest Service] on their forest plans. The more I looked at the regulations, the more I realized it was illegal."
If the agencies were not putting their heads together on the matter, the cutting would continue without knowing whether or not it further endangered the owls' survival.
Hughes mentioned the lack of consultation between the two agencies up to a Justice Department solicitor and to Interior Department staffers in Washington, with the flawed assumption that Clinton administration appointees would be more eco-friendly than Bush and Reagan appointees had been. And although the solicitor told him that the federal agencies indeed had to consult under the rules of the Endangered Species Act, nothing happened.
Using Freedom of Information requests, Peter and Kieran began researching the levels of consultation between the agencies, started looking for expert witnesses and drew in the other environmental groups, among them, Forest Conservation Council, and Forest Guardians and the Maricopa Audubon Society.
In December 1993, they filed notice that they intended to sue the Forest Service, giving the government 60 days to negotiate the issues with them. Robin Silver was put on the suit as lead plaintiff, followed by the center. Still nothing happened.
Then in June of 1994, Judge Muecke told the Fish and Wildlife Service to designate critical habitat for the Mexican spotted owl.
"If they would have consulted, there would have been no disruption of logging at all," says Hughes.
In September of that year, Kieran and Peter obtained internal Fish and Wildlife memos suggesting that the agency had no intention of doing any designation of habitat.
"We got those memos, put them in front of Muecke, and he was royally pissed," says Kieran. "And that's when his first real strong orders came down."
In July 1995, the plaintiffs filed a motion for summary judgment, and a month later, Muecke ruled in their favor and suspended logging until the Forest Service had issued a biological opinion on the effects of logging on spotted owl populations in Arizona and New Mexico.
Although Muecke was subsequently portrayed as the prototypical liberal judge in the hip pocket of the environmental movement, the Sierra Club's Sharon Galbreath says, "It's not because we have such a liberal judge. There's no such thing in Arizona. I think the judge has no choice but to find in favor of the law."
Muecke asked the plaintiffs to release some logging projects from the injunction because he wanted to make sure that the timber companies were not put out of business for the short time the injunction was expected to be in effect. After some negotiation, about 1,000 such projects were set aside. Despite the timber industry's argument that the injunction has cost them dearly, Kieran's research shows that many of those trees were never cut.
The judge's orders were clear. But the federal agencies charged with drafting a biological opinion instead wrote an absurdist play. There was money at stake: If the Forest Service were to reassess timber sales that had already been agreed to, the government might be forced to return deposit monies to timber companies that had purchased rights to log. The government might also be subject to breach of contract lawsuits that could cost millions of dollars. And so the federal agencies attempted to wear down the judge and the plaintiffs.
In April of this year, the Forest Service presented Judge Muecke with a stack of papers they said would satisfy the court.
"It had 'Biological Opinion' on the title page, but it left out the really key elements," says Mark Hughes, "like an opinion about whether it would jeopardize the species, reasonable and prudent alternatives."
Muecke was furious. "The court is at a loss to understand why the USFS would not carry out its duties set forth in the law, orders of this Court, and stipulation of the parties when failure to carry out those duties could result in contempt," he wrote.
But even the threat of holding the head of the Forest Service in contempt of court did not sway the agency to action. The Forest Service waited until the close of business on Friday, July 12, and reported to the court that it had done a full biological opinion and determined that existing forest plans were adequate for the survival of the spotted owl. Furthermore, the agency was going to allow logging to commence the next Monday--essentially deciding that it could end a federal court injunction without a judge's ruling.
Early on Tuesday, chain saws started cutting into trees in the Apache-Sitgreaves National Forest, and at least 60,000 board feet fell before Muecke could reiterate his injunction.
"Apparently, defendants believe that they have the authority to determine on their own that the recent issuance of the 'biological opinions' by the United States Fish and Wildlife Service terminates the injunction because it completes consultation and satisfies all the requirements under the law," Muecke wrote.
But then he informed them that they were wrong, and he asked for the names and titles and affidavits of everyone involved in the Forest Service decision. Chip Cartwright, the Southwest Regional Forester for the Forest Service owned up.
On July 23, Muecke called a secret hearing with the plaintiffs and the Forest Service and their attorneys at the federal building in Flagstaff, which is just around the corner from Peter Galvin's Southwest Forest Alliance office. Mark Hughes and John Talberth from Forest Guardians represented the plaintiffs. Peter waited in his office to track down documents when needed. Kieran, who was on the road, managed to do an overnight analysis of timber projects and craft a rebuttal to the Forest Service's latest biological opinion for Hughes to present to Muecke.
Regional forester Cartwright flew in from Forest Service headquarters in Albuquerque. No one questioned the rather unusual location--Muecke's courtroom is in Phoenix--or the insistence that the media be excluded.
"When a federal judge tells federal agencies to go, we go," says Pat Jackson, a Forest Service spokesman who accompanied Cartwright to Flagstaff but did not attend the hearing in the judge's quarters. "When he gives instructions, we do them."
The judge, however, did not agree that the Forest Service follows his instructions. He asked Cartwright how a defendant in a lawsuit could decide for himself that the lawsuit was over and that he had won. But the judge did not follow through on his threats of finding the Forest Service in contempt.
He ordered both sides to present final briefs on August 7.
The Forest Service stands firm.
"This owl is not in jeopardy, nor has it ever been," says Jackson.
In the truck on the way to explore a riparian area outside Tucson that is threatened by development, Kieran waxes philosophical about why owls have become a symbol for both sides in the environmental wars.
"I don't think it's a coincidence that it's an owl," he says. "Not just in Native American cultures, but in other cultures as well, the owl has been an omen of death. In this case it's the death of an ecosystem."
He goes on to explain that spotted owls use desert riparian areas as way stations from one mountain range to another. They have been seen near Tucson, he says, and once upon a time, when the Salt River had a riparian area, they were sighted in Tempe.
Kieran meets with a pair of local citizens who have been campaigning against the impending development of this riparian area, which is at the bottom of a canyon. Kieran knows that there is at least one cactus ferruginous pygmy owl living somewhere in the canyon. The Southwest Center filed the petition to list the species as threatened, and its presence could help the local fight against the development.
The pygmy owl is no bigger than a beer can, but it's a ferocious predator and can kill mammals larger than itself.
"Not much is known about those guys because they're very secretive," Kieran says. "They're not migratory. They'll stay at a site all year long."
The canyon is a lovely, winding slot filled with willow trees. Because of the spring drought, it is uncharacteristically dry; biologists argue whether it has a perennial or an intermittent stream, but regardless, it is green and cool.
A mile into it, there is a high monolithic brown rock carved with Native American petroglyphs that date to the Hohokam civilization. To the right are the usual gouged spirals.
Kieran's face lights up. Carved into the side of the rock face, left by some prehistoric artist as a reminder of the creatures that once lived there, is an ancient and larger-than-life rendering of an owl.
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