Subject: FW: SW BIODIVERSITY ALERT #26

Subject: SW BIODIVERSITY ALERT #26

* ************* Southwest Biodiversity Alert #26 *****************
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*            southwest center for biological diversity           *
*                      ksuckling@sw-center.org                   *
*             http://www.envirolink.org/orgs/sw-center           *
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1.  FOREST SERVICE VIOLATES LOGGING INJUNCTION,
    SECOND ATTEMPT TO LIFT INJUNCTION FAILS

2.  PETITION TO STOP COAL MINE DENIED

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1.  FOREST SERVICE VIOLATES LOGGING INJUNCTION, SECOND ATTEMPT TO LIFT
    INJUNCTION FAILS

In its second attempt to lift an 11 month long logging injunction on 11
National Forests and the Navajo Nation, the Forest Service unilaterally
declared the injunction over, sending logging companies back to the work.
Within 24 hours, the decision was stomped by an angry federal judge who
originally issued the injunction.

In his order, Judge Muecke stated:

  "This court is at a loss to understand why defendants would choose to
  proceed in this fashion in light of the Court's prior order advising
  defendants that the consultation would not be deemed to be complete
  until the "proper" biological opinion was issued under the requirements
  of the ESA and the applicable regulations. Instead, defendants have
  unilaterally determined that they have met all the requirements of the
  law, stipulation, and orders of the court, and elected to proceed, even
  though the plaintiffs disagree, have raised the issue with the Court
  and the Court has hade little to no opportunity to review the factual
  and legal issues. This is a highly unusual manner in which to proceed
  in this lawsuit or any lawsuit. Rather than speeding up the resolution
  of this lawsuit, this situation again is being delayed by
  inappropriate procedures."

  "No later than July 19, 1996, at 12:00 p.m. defendants shall file
  affidavits signed by those persons responsible for the decisions to
  proceed with the timber cutting. The affidavits shall include the name
  and title of the persons making those decisions and information about
  with whom they consulted before deciding to go forward with the
  decisions to resume tree cutting."

The injunction was issued in August, 1995 and is to remain in effect
until the Fish and Wildlife Service completes a legal Biological
Opinion on the effects of 11 Forest Plans on the threatened Mexican
spotted owl. While Biological Opinions have been forthcoming, the
Fish and Wildlife Service has had problems with the "legal" part. A
previous "conditional" jeopardy opinion was successfully challenged
by the plaintiffs. Angered by opinion, Judge Muecke threatened to
file sanctions against Forest Service Chief Jack Ward Thomas. He also
declared that henceforth, the injunction would not automatically
disappear with the issuance of a Biological Opinion, but would
require his personal review and approval. The Forest Service ignored
Muecke's ruling, unilaterally declaring the injunction over with the
completion of a new Biological Opinion.

The new opinion is as fraudulent but more sophisticated than the
first. It declares that continued logging under the Forest Plans will
jeopardize the Mexican spotted owl unless conducted in accordance
with the Spotted owl Recovery Plan. According to a declaration filed
by Kieran Suckling of the Southwest Center, however, the opinion
treats all 239 timber sales held up by the Muecke's injunction as if
they were already cut. Even worse, timber sales and projects which
have not yet been issued and/or sold are also treated as if already
cut. In all, some 150-200 million board feet were exempted from the
Recovery Plan. Bowing to Forest Service pressure, the Fish and
Wildlife Service is pretending that the logging injunction never
happened. It is proceeding as if the trees were already logged even
though Muecke enjoined cutting in order to give the Fish and Wildlife
Service the chance to request that the sales be cancelled or
modified.


2.  PETITION TO STOP COAL MINE DENIED

The Office of Surface Mining and the New Mexico Minerals and Mining
Department have refused to consider a petition by the Southwest
Center to declare a proposed mine site unsuitable for surface coal
mining. The Center argued that the mine would harm Native Americans
and have detrimental impacts on the quantity and quality of water in
the Fence Lake area in the northern portion of the Gila Headwaters
Ecosystem.

The Salt River Project's Fence Lake mine would draw water from the
aquifer which feeds the sacred Zuni Salt Lake.  At least seven tribes,
including the Ramah Navajo, Zuni, Hopi, and Mescalero Apache make
religious pilgrimages to the Salt Lake.

MMD and OSM refused to consider the Southwest Center's petition
because it was filed after the Permit Application Package was declared
"administratively complete" in July 1995.

The Southwest Center will appeal to the Interior Board of Land
Appeals to overturn the decision if the mining plan is approved.