******* SOUTHWEST BIODIVERSITY ALERT #106 ***********
       *                    12/15/97                      *
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Pima County officials have lifted a ban new building permits in the
Tucson metro area designed to protect the endangered Cactus
ferruginous pygmy owl. The ban was enacted after activists and
the U.S. Fish and Wildlife Service informed the county that
issuance of building permits without approval by the Fish and
Wildlife Service could make the county liable for taking pygmy
owls- a violation of the ESA.

Only 12 pygmy owls are known to still inhabit the few remaining
lush pockets of Sonoran desert left in Arizona. Ten of the birds
reside in the development battle zone of northwest Tucson, putting
the tiny bird at the center of raging battle over mindless
development, open space, and desert protection.

The Phoenix NewTimes, an investigative weekly paper, just
printed a devastating profile of systematic Forest Service
lawlessness in the Southwest. Entitled "Government by
Litigation," the story by Michael Kiefer chronicles the near
complete refusal of the Forest Service (and the EPA and USFWS)
to obey environmental laws unless sued to do so. It includes very
damning quotes by former Forest Service biologists and
bureaucrats and shows how a relentless litigation campaign can
grind down the cogs of bureaucracy.  Excerpts are presented
below, to read the full story check out the NewTimes webpage at

Government by Litigation
Michael Kiefer, Phoenix NewTimes

Increasingly, public officials ignore laws they're paid to uphold.
Citizens and interest groups regularly drag these same bureaucrats
into court, trying to ensure that the laws of the land are enforced.
But now, even the courts, once bastions of authority, are being
flouted. The result: government lawlessness.

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

...When Judge Muecke heard of the tree cutting, he was furious,
and he ordered that it stop immediately...Muecke demanded the
names of everyone involved in the decision to violate his

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...

"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...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 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...

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

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...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

"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.

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 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...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 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...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

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...

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."

One day after Strand's judgment, the Forest Service announced
that it had no intention of making its pending timber sales conform
with the new owl and goshawk guidelines it had drawn
up...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.

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...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."...

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."

"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."


Kieran Suckling                     
Executive Director                            520.623.5252 phone
Southwest Center for Biological Diversity     520.623.9797 fax                      pob 710, tucson, az 85702-710