A Hostile Environment

U.S. Justice Department lawyer assaulted an attorney representing several environmental groups earlier this month during closed-door talks in Phoenix aimed at ending the 15-month-old injunction that has halted logging, one environmentalist says.

According to Peter Galvin of the Southwest Forest Alliance, who witnessed the alleged assault, John Marshall, a Washington, D.C.-based Justice Department attorney, grabbed Mark Hughes, the attorney representing the environmentalists, slammed him against the wall, shook him and broke Hughes' glasses. Marshall was then restrained by Dr. Robin Silver, the lead plaintiff in the suit. Silver confirmed that the scuffle took place, but would not comment further.

Despite the alleged lapse in professional conduct, Marshall still represents the federal government in its attempts to lift the injunction. But the case has been transferred from Judge Carl Muecke's courtroom--fueling rumors of his impending retirement--to that of U.S. District Court Judge Roger Strand.

Muecke issued the injunction that shut down the timber industry in most of Arizona and New Mexico in August 1995 in response to a lawsuit filed by Hughes, of the Denver firm, Earthlaw. Hughes represents Silver and a host of environmental groups, including The Southwest Center for Biological Diversity, Forest Conservation Council, Forest Guardians, and the Maricopa Audubon Society.

The lawsuit alleged that the U.S. Fish and Wildlife and Forest services repeatedly had failed to do a complete biological analysis to chart the effects of logging on endangered Mexican spotted owls and Northern Goshawks in the national forests. Muecke, angered at the federal agencies' stonewalling, stopped most logging until a proper biological opinion was issued.

The injunction spawned protests by loggers; Muecke and some of the environmentalists were hanged in effigy. And yet the Forest and Fish and Wildlife services refused to budge, despite repeated threats by Muecke to hold them in contempt.

Last July, the agencies staged a putsch, announcing that they had finished their study, determined that the spotted owl was not affected by current timber-harvest plans, and gave the go-ahead to loggers in the White Mountains.

Muecke was furious.
"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 and satisfies all the requirements under the law," he wrote in a brief.

Muecke called the feds and the environmentalists to a secret hearing in Flagstaff, scolded the regional forester, Chip Cartwright, and refused to lift the injunction. Then, in September when Muecke felt the agencies had still not complied with his requests, he reissued the injunction and ordered all parties to the courthouse in Phoenix to reach a settlement.

After New Times published a story about the ongoing debates ("Owl See You in Court," August 1), Muecke called the paper to protest the contention that the July hearing in Flagstaff had been conducted in secret. Nonetheless, when the negotiators reconvened in Phoenix on October 3, they were asked to sign confidentiality agreements.

At least 11 people attended the Phoenix meeting, including representatives from the Fish and Wildlife and Forest services, the Justice Department, the U.S. Department of the Interior; Hughes, Galvin, Silver, and another attorney for the environmentalists, Steven Sugarman.

According to Galvin's account, the two sides were to discuss the terms of settlement proposed by the environmentalists as well as lay out exactly what constituted a complete biological opinion, but they disagreed on which to discuss first.

"We had given them repeated settlement offers for the last several weeks," Galvin says, "meaning that the injunction would be lifted and several lawsuits would be lifted as well, in exchange for modification of 26 [timber] sales . . . and [completion of] a large region-wide study to formulate timber sales in the future."

Marshall claimed that he had not yet received authority from Washington to negotiate for settlement, Galvin says. After 45 minutes of what Galvin characterizes as "mini-filibustering" on both sides, the rather mild-mannered Hughes stood up and said, "I smell a rat," and slammed his files down on the table.

Marshall got up from his seat.
"He started sounding like he's having a conniption fit," Galvin says, "and I heard him muttering something about '14 months of my life.'"

Galvin claims that Marshall grabbed Hughes by the lapels and slammed him against the wall and started shaking him.

Robin Silver scrambled out of his seat, grabbed the back of Marshall's shirt and pulled him away from Hughes. Marshall then allegedly lunged for Silver, but Silver pushed him away. Then Marshall took hold of Silver's arm with both hands, and Silver responded by grabbing Marshall by the throat and pinning him against the conference table until he calmed down. Mike Johns of the U.S. Attorney's office in Phoenix then led Marshall out of the room, Galvin continues. Marshall came back several minutes later and apologized profusely.

Silver admits that the assault took place.
"I will confirm that he did attack Hughes and I needed to pull him off," Silver says. He refuses to comment further.

Hughes did not press charges, and he and Marshall declined comment altogether. But Bill Brooks, a spokesman for the Justice Department in Washington, D.C., says, "We are aware of the situation and the senior management in the environmental and natural resources department is looking into it."

Marshall remains on the case.
Meanwhile, the environmentalists fear the new judge on the case, Roger Strand, will be more sympathetic to the federal agencies and loggers than Muecke was.

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Michael Kiefer