The WildLaw Letter
For Members and Friends April 2001
On March 9, 2001, on behalf of the Biodiversity Legal Foundation and Wild Alabama, WildLaw filed a lawsuit under the Endangered Species Act against Secretary of Interior Gale Norton and the U.S. Fish and Wildlife Service for their unlawfully delay of a final decision to list the Vermilion Darter as an endangered species.
On April 18, 2000, the U.S. Fish and Wildlife Service (FWS) made a 12-month finding to proceed with listing the Vermilion Darter as an endangered species. 65 Fed. Reg. 20,792 (April 18, 2000). On November 17, 2000, the FWS decided to stop all work on listing species under the ESA. A directive from the Clinton Administration mandated that the FWS stop work on the Vermilion Darter's listing package (as well as the listing proposals for dozens of other species around the country); and that moratorium ordered that the FWS not list the Darter by the legally-mandated, one-year deadline of April 18, 2001. Subsequent to our sending in November 2000 the 60-day notice letter stating we would file this suit, the Clinton Administration "found" the money to complete the Darter listing, which, at this point, only requires that the final rule be published in the Federal Register. All other work on protecting this fish has been completed. Once the Bush Administration came into office, Secretary Norton once again pulled the Darter's listing proposal, all without any legal justification.
We are challenging the illegal failure of the government to implement its mandatory duties under the ESA to continue to work on listing the Vermilion Darter and to actually list the Vermilion Darter as endangered by the required deadline. We will demonstrate that Secretary Norton failed to rely upon the best available scientific and commercial data, as the law requires. This species is critically endangered, and it has been the subject of a prior emergency listing petition. The Darter exists in only one seven-mile-long segment of Turkey Creek, Jefferson County, Alabama, and that habitat is being heavily impacted by development, sedimentation, discharges from a waste water treatment plant, and other pollution. It appears that the decision not to list this fish was improperly influenced by factors which the defendants cannot legally consider in a decision of whether or not to list a species under the ESA. The decision of whether or not to list a species as endangered under the ESA must be based solely upon scientific and biological considerations, not political ideology or self-contrived budgetary excuses. Further, this decision was not adopted according to legally-required rule making procedures and NEPA analysis. Also, this decision was arbitrary, capricious and an abuse of discretion under the Administrative Procedures Act.
In January, anti-environmental business interests filed a lawsuit to reverse the listing of the Alabama Sturgeon as endangered. We have heard credible rumors that these business interests and Bush Administration Secretary of Interior Gale Norton are cooking up a "sweetheart" settlement to kill the listing of the Alabama Sturgeon. After nine years and three lawsuits, WildLaw and our clients the Biodiversity Legal Foundation and Ned Mudd were able to get Bruce Babbitt and the Clinton Administration to finally list the Alabama Sturgeon as endangered under the Endangered Species Act (ESA) in May 2000.
What it appears Norton and the anti-environmental corporate interests in Alabama are doing is arranging a "friendly" lawsuit. The anti-environmental interests sued, claiming that the listing of the Alabama Sturgeon was done illegally. Norton will apparently quickly agree, and with John Ashcroft's Department of Justice as her lawyers, she may settle the case by agreeing to withdraw the listing. If this does happen soon, it may happen too quickly for us to effectively take action to intervene. Also, the anti-environmental interests may be keen on using their predestined "victory" to seek costs and attorney fees against us and our clients, in amounts well into the $100,000s. Thus, we are preparing to file a "friend of the court" brief, if we are allowed to, to argue why such nonsense should not be sanctioned by a federal judge. By filing such an "amicus" brief, we can make our arguments and not be exposed to costs and fees.
If the sweetheart deal does goes through, our only recourse will be to petition yet again for the Sturgeon to be listed and then sue to make that listing happen once more.
To investigate the possibility of this nefarious deal, WildLaw has sent a Freedom of Information Act request to Secretary Norton, to learn all the contacts she has had with the anti-environmental interests and unprincipled politicians.
Regardless, this episode shows how fragile environmental "victories" are and how easily wealthy multinational corporations can manipulate the legal system when they have unethical and immoral allies in power.
On February 2, 2001, WildLaw and the National Forest Protection Alliance launched a new web site designed to provide organizations, activists and citizens a one-step place to get information on protecting the National Forests and other public lands and to take action. The site, www.defendtheforests.org, is designed to provide timely information on proposed projects that the Forest Service and other agencies put out on logging, mining, land exchanges and other actions that harm and degrade public lands.
The Bush Administration has promised to "put the National Forests back to work," meaning to give away public trees and minerals to special interests at huge losses to the taxpayer. Also, anti-environmental forces are trying to get the management of National Forests and other public lands into the hands of local interests, falsely claiming that local people know best how to manage a forest. What they mean is that corporations know best how to manipulate local politicians into plundering the forest. These forests are public lands that belong equally to everyone, and defendtheforests.org is designed to help people all over the nation speak out and get involved in their lands.
In response to appeals filed by WildLaw on behalf of the Superior Wilderness Action Network, the Forest Service has withdrawn the Storm 2000 Salvage
Reforestation and Fuels Treatment timber sale on the Chippewa National Forest. This project would have logged 1,340 acres, including clearcutting of 263
acres. The Forest Service also dropped their proposal to relocate the Lost Girl snowmobile trail, work that would have required bulldozer work of at least a half
mile. This is yet another victory for the public forests by our Staff Attorney Leigh Haynie at WildLaw's North Woods Office.
WildLaw, on behalf of Superior Wilderness Action Network (SWAN), settled a timber sale suit on the Superior National Forest located in Minnesota. In return for SWAN dismissing the lawsuit over the Crescent Lake timber sale, the Forest Service agreed to drop mechanical removal on approximately 300 acres and 8.5 miles of road building. Road activity will be limited to pre-haul maintenance of existing system roads.
The Crescent Lake Environmental Assessment proposed to salvage 1399 acres of timber and build 8.5 miles of additional roads in isolated, remote areas. SWAN submitted an administrative appeal, and the Regional Forester agreed to "eliminate road construction for this project and allow only routine pre-haul maintenance of existing Forest Service system roads." However, upon further monitoring of the sale after the Regional Forester's decision, SWAN discovered the Forest Service was ignoring the prohibition on road building. Ultimately, SWAN had to go to the courts to enforce the Regional Forester's decision.
The purpose of the lawsuit was to enforce the Regional Forester's findings and prevent a more extensive road system from being established.
WildLaw is featured in Blue Frontier: Saving America's Living Seas, a great new book by David Helvarg. A hard-hitting look at what we have done to our coastal waters, Blue Frontier chronicles the tragedies and crimes against our seas and the heroic efforts to protect and save them. WildLaw is featured in the chapter called "The Seaweed Rebellion," and David covers our work on protecting Dauphin Island and fighting water pollution from concentrated animal feeding operations (CAFOs).
David is the nation's premier environmental journalist, and his latest book gives great insight into a vital part of our country's environment and economy. Just published by W. H. Freeman and Company, Blue Frontier is highly recommended for anyone concerned about the fate of America's water frontier. Available now from book stores and online stores like Amazon.com.
A good friend of WildLaw met with U.S. Representative Dave Obey (a Democrat) from the 7th district of Wisconsin. According to our reports of the meeting, he yelled at her, and then he proceeded to talk about "that damn WildLaw" appealing every National Forest timber sale in Wisconsin. According to our friend, he mentioned "that damn WildLaw" several times.
Congratulations go out to our North Woods Office Staff Attorney Leigh Haynie and all our clients up that way for this great recognition from a "leader" in Congress. Still, this outburst is a bit strange considering that Obey had an LCV rating of 87% in the 106th Congress. Just goes to show that "environmental leaders" in Congress might not be that environmentally minded after all.
The Chequamegon-Nicolet National Forests announced the withdrawal of two projects due to demands from WildLaw and our client Superior Wilderness Action Network. The Forest withdrew the Drummond-Cable Snowmobile Trail Relocation. The proposal was to relocate an existing snowmobile trail on private land to 2.8 miles of low standard forest roads and build 2.0 miles of new trail. Currently, there are over 850 miles of groomed snowmobile trails on the Forest, which are part of a well-established statewide snowmobile network that consists of more than 25,000 miles of groomed trails. That the Forest Service could propose new snowmobile trails with a straight face was amazing. The scoping notice received local opposition and opposition from the state department of natural resources who proposed an alternative where the snowmobilers use abandoned railroad beds.
Also withdrawn was the Flynn Lake logging project, which proposed to log 200-400 acres in a semi-primitive non-motorized area.
On behalf of Superior Wilderness Action Network (SWAN), WildLaw filed a lawsuit on April 19, 2001 against the Forest Service over a land exchange in the Superior National Forest in Minnesota. This land exchange is one of nine land exchanges where the Forest Service plans to swap lakeshore property outside the Boundary Waters Canoe Area and Wilderness (BWCAW) for county-owned property inside the BWCAW.
The Forest Service failed to prepare an Environmental Impact Statement for these exchanges; although, the Forest Supervisor acknowledges that there is a
program to help the counties liquidate all their holdings within the BWCAW without these land exchanges. The Forest Service-held lakeshore property outside
the BWCAW is either undeveloped or currently leased to resort owners or campgrounds. These exchanges will allow for total development of these lands
without any kind of environmental review or constraints.
WildLaw has joined a campaign with more than 122 organizations to clean up the Southern Company, the nation's largest polluter among electric utilities. The Southern Company owns Alabama Power, a company that WildLaw and its clients have fought for more 10 years in a variety of cases. Alabama Power has consistently fought against protection of Alabamians' right to a clean environment, against protection of Alabama's unique wildlife, against protection of Alabama's public lands and last wild places, against protection of rivers and streams (including streams where they have no dams or other facilities), and against clean air. WildLaw hosted the United States Public Interest Research Group (the lead organization in this campaign) for their Montgomery press conference on this campaign.
The campaign is asking Southern Company to take two concrete steps to improve its clean air record. First, they ask Southern to direct its affiliates to settle litigation with the U.S. Environmental Protection Agency, which has sued the company for alleged Clean Air Act violations at ten power plants in the Southeast. Second, the groups ask Southern Company to support federal legislation to clean up the nation's power plants to a level that will ensure protection of public health and the environment. So far more than 10,000 people have sent a fax or a postcard to Mr. Franklin.
The smog, soot, toxic mercury, and carbon dioxide emissions from Southern Company's plants can trigger asthma attacks, cause premature death, contaminate our food chain, and contribute to global warming. While the company argues that its pollution levels are simply a function of its large size, it is actually a function of the company's reliance on out-dated coal-burning power plants.
In Alabama, emissions from Alabama Power's old coal-fired plants are single-handedly responsive for the massive smog problems in Birmingham and Mobile. Both cities are non-attainment areas for ozone pollution; thus, Alabama Power's refusal to clean up its old plants to modern standards has cost these Alabama cities some $5 billion in lost business and thousands of jobs.
For more information on the campaign and how you can get involved, check out the web site www.CleanUpSouthernCompany.org.
300-B Water Street, Suite 214
Montgomery, Alabama 36104