Pining for Justice

Last Friday, December 27, a coalition of Southwestern environmental groups once again asked a federal judge to issue an injunction against the U.S. Forest Service to keep that agency from violating federal law in its logging practices.

The law of the land is apparently meant to be broken--at least the law of land management.

An earlier injunction preventing logging in the Southwest was lifted December 4, after 16 months. During that time, the Forest Service dragged its heels, refusing to research and produce a biological opinion as mandated by the Endangered Species Act to determine the effects of its logging policies on the Mexican spotted owl and northern goshawk.

The Forest Service ignored U.S. District Judge Carl Muecke's threats of holding the agency and its managers in contempt of court, and in July defied the injunction outright by allowing cutting in the White Mountains ("Owl See You in Court," August 1, 1996). In October, a Justice Department lawyer allegedly went so far as to assault an attorney for the environmentalists, though no charges were filed and the lawyer was not removed from the case ("A Hostile Environment," October 31, 1996).

But along the way, the Forest Service bowed to pressure from the environmentalists and the U.S. Fish and Wildlife Service to amend its Forest Plans--policy blueprints for management of the national forests--to better protect spotted owls and goshawks.

Finally, the case was transferred from Muecke's courtroom to that of Judge Roger Strand, who grudgingly admitted that the Forest Service had issued a biological opinion that was "procedurally complete," and had followed the letter, if not the spirit, of the law.

Strand lifted the injunction.
The next day, December 5, Regional Forester Charles "Chip" Cartwright issued a "clarification in the Published Record of Decision" stating that the Forest Service had no intention of rethinking any of the projects it had launched before the Forest Plan amendment. The Forest Service, in essence, was saying that the amendments were necessary but would only be followed on future timber cuts.

The environmentalists say Cartwright's directive puts the Forest Service in violation of federal law again. And the same environmental groups that had obtained Judge Muecke's injunction over the Endangered Species Act petitioned the court again, this time over the Forest Plans.

Listed as plaintiffs are Forest Guardians, a New Mexico-based environmental group, along with the Southwest Center for Biological Diversity in Tucson and Dr. Robin Silver, the Phoenix environmentalist who originally petitioned to have the Mexican spotted owl declared a threatened species under the Endangered Species Act. On December 27, they asked the court for a summary judgment and injunction against the Forest Service.

"In this lawsuit, we are not seeking a significant shutdown," says Steven Sugarman, the Santa Fe attorney who filed on behalf of the environmentalists. "This suit is narrowly focused and it has to do with common-sense forestry."

"The case itself is different law," Silver adds. "The first case had to do with the Endangered Species Act and [the Forest Service's] failure to do a decent evaluation, and this one has to do with a law that says the Forest Service has to be consistent so that all their contracts comply with any amendments or new regulations that they put forth."

Nonetheless, the issues at the heart of the two disputes overlap.
One sticking point for the Forest Service in issuing a biological opinion was the cost of having to make good on existing contracts with logging companies. If new, more stringent guidelines for protecting species forced them to cut back on the number of trees in any given timber sale, they could be forced to pay damages to the loggers for breach of contract.

But the U.S. Fish and Wildlife Service had determined that the Mexican spotted owl was indeed in jeopardy because of logging. And so the Forest Service tossed a bone to the environmentalists and rewrote guidelines in the Forest Plans for all 11 national forests in the Southwestern region. They prohibited logging within 600 acres of owl territories and promised to protect old-growth forest, or rather, those few large trees that remain in forests.

To sell timber, the Forest Service first must formally designate the area to be logged with a Notice of Decision. The agency's foresters mark the trees that may be cut before seeking loggers' bids. The interested logging company must sign a contract before any trees can be cut.

At issue in the current lawsuit are those timber sales that were marked for cutting but not yet put out for bid before Judge Muecke's 16-month injunction went into effect in August 1995.

"There are several hundred projects that are relevant," says Kieran Suckling of the Southwest Center for Biological Diversity, "but most important are 26 timber sales: 18 in Arizona and eight in New Mexico."

New Times toured two proposed sales in the Kaibab National Forest in August and noted that although the sales had been marked ostensibly to curtail mistletoe infestation, nearly every large yellow ponderosa pine tree was marked to be cut, contrary to the requirements of the June Forest Plan amendments.

"The [original] injunction lawsuit resulted in there being new plan amendments, and it resulted in the biological opinion that said you cannot implement these forest plans as is," says Suckling.

The environmentalists first filed suit on the plan amendments on September 28, while Muecke's injunction was still in place, because it appeared as if the amendments would not be applied to those timber sales that had been marked before the injunction. The suit required the Forest Service to go back and reconfigure those 26 areas before they were put out to bid.

Then on December 5, a day after the Muecke injunction was lifted, Regional Forester Cartwright issued a three-paragraph decision that the sales would stand as marked.

Cartwright's directive concludes, "[T]he Forest Plan direction that became effective June 16, 1996, will be used in development of all new decisions. There is no requirement to apply this direction retroactively with decisions made prior to these amendments."

"But the law clearly says that you can't permit or contract a sale unless it meets the Forest Plans," Suckling complains. "It's a particularly cynical maneuver right now because we just went through this two-year-long battle."

The National Forest Management Act of 1976 does say explicitly: "When land management plans are revised, resource plans and permits, contracts and other instruments, when necessary, shall be revised as soon as practicable."

The environmentalists petitioned for a new injunction to demand that all those projects that don't conform to the new guidelines be revised. The Forest Service declined to comment except to note that it had not reviewed the complaint.

But as for the content, Milo Larsen at the Forest Service regional headquarters in Albuquerque says, "That's what litigation is about. It'll just have to be argued out."

And whether or not the law is clear-cut has not stopped clear-cuts in the past.

"These guys don't care about anything but a court order," says Kieran Suckling. "And even then they haven't been successful in following court orders. You have to pound them over the head constantly to make them do anything. The agency appears to be completely devoted to producing as much timber as possible.

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Michael Kiefer