* ************* Southwest Biodiversity Alert #40 *****************
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*            southwest center for biological diversity           *
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The Southwest Center, Spirit of the Sage Council, Shoshone
Gabrielino Nation, Biodiversity Legal Foundation, The Fund for
Animals, Forest Guardians, and others have filed a lawsuit in
Washington, D.C. challenging a national Fish & Wildlife Service
policy exempting Habitat Conservation Plans from the Endangered
Species Act. The case has been assigned to Judge Sporkin who
twice in the last month ruled in favor of the Southwest Center and
the Biodiversity Legal Foundation, overturning Fish & Wildlife
Service decisions not to list the Queen Charlotte goshawk and the
Alexander Archipelago wolf as endangered. All three case are
being argued by Meyer & Glitzenstein.

In 1982, Section 10 of the ESA was amended to allow take of
threatened species, provided a Habitat Conservation Plan (HCP)
was approved by the Fish & Wildlife Service. In 1984, the Service
adopted regulations requiring HCPs to be altered if they were
found to jeopardize the survival and recovery of endangered
species. In 1994, without public notice or comment, the Clinton
administration reversed the regulations with its "No Surprises"
policy.  Under the new policy, an HCP can not be altered to
increase protection for declines species or newly listed species
except under "extraordinary circumstance" and only with the
voluntary approval of the private land owner if the changes require
additional payments, development limitations. "No Surprises"
locks in managment plans even if they are found to endanger target
species or fail to protect newly listed species. Every HCP issued
since 1994, including the Orange County Central and Coastal
NCCP/HCP, the Balcones Canyonland HCP, and the City of San
Diego MSHCP.

We are asking the court throw out the national policy and all
HCPs which use it, until the Fish & Wildlife Service provides for
public notice and comment as required by the E.S.A. and the
Administrative Procedures Act.

The "No Surprises" concept is central to the Environmental
Defense Fund/Industry bill to amend the ESA to make it more
developer friendly.


A Hostile Environment: Witnesses Say a Justice Department
Attorney Physically Attacked a Lawyer for Environmentalists

By Michael Kiefer, Phoenix New Times, October 30, 1996

A 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 [and Southwest Center Conservation Chair]. 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

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.