The WildLaw Letter

For Members and Friends January 2001

Annual Report

2000 was yet another record year for WildLaw and our clients. Success in our efforts to protect forests and endangered species was unprecedented. WildLaw and our clients had a great number of successes in 2000. We highlight some of them here:

National Forest Protection Work

WildLaw continues to be in the thick of things in the national campaign to end commercial exploitation of our public lands. Our work in lawsuits, administrative appeals and other actions led to some 95,000 acres of logging projects being stopped in 2000 (and the first week of 2001, see the next article). We are a key participant in the legal work nationwide to end the abuse of our National Forests. WildLaw drafted the next piece of legislation in the campaign to protect public lands, a bill to end ALL forms of commercial exploitation on public lands, including logging, mining, grazing, industrial recreation, drilling and more.

Since WildLaw was formed in February 1997, we have stopped more than 125,000 acres of logging projects on the National Forests. Look at the graph to see how timber sales and cuts have declined in the National Forests of Alabama since WildLaw began its work to end all logging of natural forests. Now, all logging done by the Forest Service in Alabama is strictly scientifically-sound restoration work or salvage of pine beatle damaged pines, which are then replaced by native hardwoods.

Alabama Sturgeon Protected

After nine years of work and three lawsuits by us and our clients, the Alabama Sturgeon finally received the legal protection it needed under the Endangered Species Act when it was formally listed as an endangered species. Our work to ensure that the fish receives the real world protection that listing entitles it to will go on.

Alabama CAFO Rules Strengthened

Due to a WildLaw appeal of the Alabama Department of Environmental Management's (ADEM) initial regulations for Concentrated Animal Feeding Operations (CAFOs) for hogs, cattle and chicken, ADEM revised a number of those rules. While still far short of what is needed to protect Alabama's waterways and rural families, the improved regulations do add a better level of protection.

Originally, the ADEM rules required "public" notice of proposed CAFO permits to be "sent out" only via ADEM's web page. Now, ADEM agreed to and has begun mailing new CAFO notices as part of their regular permit notice mailings. This will still require that individuals sign up for this list and go through these notices every month, but it does increase the chance that rural communities will have the opportunity to comment on new facilities before they are in operation.

ADEM slightly increased the protection to our state waters by expanding the buffer zone between raw animal waste lagoons and most state waterways from 100 feet to 200 feet. ADEM adopted an expansion of the setback buffer of lagoons from drinking water wells used for human consumption from 100 feet to a better 500 feet.

The risks from land-application of animal wastes from swine factories were reduced when ADEM required that the buffer for the spraying of liquid animal waste on fields near people's homes be increased from 100 feet to 500 feet.

To respond to the concerns of rural residents, ADEM made some increases in the buffers between CAFOs and homes in order to control odor and reduce health impacts. ADEM's previous rule required only a 1,320 foot buffer from occupied dwellings. The newly adopted buffers use a graduated system based on the number of animal units in the CAFO. For the largest CAFOs, the buffer is now 5,280 feet, one mile.

Finances

In 2000, WildLaw had a total income of $367,817. Of that amount, 54% came from individuals, 33% came from grants, 9% came from case attorney fees and expense reimbursements, 1% came from interest income, and 3% came from insurance reimbursement for the WildLaw Jeep after it was totaled in an accident.

Expenses for 2000 were $341,914. 62% of that was for payroll expenses, which is understandable since WildLaw is a law firm, and the stock and trade of a law firm are the people doing the work.

Loss of Staff

Despite all our successes, we have had some difficulty in fund raising for the upcoming year and have had to cut our budget for 2001 to $278,000. Even public interest lawyers are not popular targets of charitable giving, and some of our successes have led some funders to think that we no longer need their support. A number of funders have reduced their support or pledges for 2001.

Due to this funding problem, we have reluctantly let four of our staff attorney positions go. Kellam Warren left early in 2000 to pursue a career in private practice in Memphis; we have not been able to hire someone to fill the second attorney position in North Carolina. Chip Vercelli and Aimee Smith were laid off from our Alabama office in early Autumn. Danny Daniels left North Carolina in August to form our New Orleans office, but we were unable to find funding for that office. Danny had to be let go at the end of December, and our New Orleans office officially closed at the end of 2000.

Along with this loss of staff comes a loss of ability to work in many areas with environmental problems. In the face of the extreme shortage of environmental protection lawyers in the South, WildLaw has tried to fill every void it could. Perhaps this extension of our work to many areas and issues has caused some of our loss of fund raising ability. Regardless, for 2001, WildLaw will focus its energies and work on areas where we know we can have the best success, areas where we have produced solid results in the past. This means that for 2001 WildLaw will work only in the areas of forest protection, endangered species, and water quality (where it has a connection to forests and/or rare wildlife). Cases we have taken on because no one else could or would do them will fall through the cracks. Many of these include work on air pollution from coal-fired power plants, CAFOs, filling of wetlands, landfills, rock quarries, billboards and roadside scenic beauty, urban brownfield renewal and cleanup, and many other issues we have worked on in the past couple of years. Of course, where some of these issues overlap with forests or rare species issues, we will try to work on them through those angles.

Danger Ahead

With the "W" years ahead where President-designee George W. Bush has appointed openly anti-environmental people to head his agencies, the work to protect public lands and rare species will get more urgent. Bush has promised to "put the National Forests back to work," meaning sell the trees and minerals off to his corporate benefactors at huge losses to the taxpayer. His appointee Ann Veneman for heading the Department of Agriculture will oversee the Forest Service and is committed to drastically increasing the logging. Bush's nominee for the Department of Interior, Gale Norton, is openly opposed to protection of public lands and endangered species. With Congress also in the hands of multinational corporations, legal options will be the strongest and best weapons left to us to fight Bush attacks on the environment.

How You Can Help

We need your support now more than ever if we are to continue this work and build on our progress for even more protection for your public lands and environment. WildLaw is reaching a national audience now with our work, as evidenced by our being asked by national environmental groups and coalitions to draft not one but three major national pieces of legislation to protect all public lands, native ecosystems and biodiversity on private lands. We are a key part of the growing national plans to accomplish permanent protection for all our National Forests. Our experience and expertise saves special places on the ground and provides the basis for much stronger legal protections in the future. Every dollar you donate goes into the most efficient and effective legal team anywhere in the country.

You can also donate to WildLaw using the Internet with your credit card. WildLaw has partnered with GivingCapital.com to provide our members, friends and donors a way to donate to our work easily and securely over the Web. You can reach that site by a simple click from our Web site.

Thanks to our Donors

Many thanks to the many individuals and foundations who have stayed the course with us in 2000 and on into 2001. You helped make all our success a reality. Special thanks goes out to:

W. Alton Jones Foundation,

The Moriah Fund,

The Foundation for Deep Ecology,

Patagonia,

Sussman Family Foundation,

James Redfield,

Fred Stanback.

2001 has started with a big bang. The lawsuit filed in 2000 by Earth Justice Legal Defense Fund, WildLaw and the Southern Environmental Law Center over logging proposals in the National Forests of the Southern Region has produced significant victory. All 56 of the timber sales we challenged in the lawsuit and four others have been withdrawn by the Forest Service in response to our suit. Also, some 32 other timber sales that we had appealed but that had not yet been added to the lawsuit may possibly be dropped. Altogether more than 75,000 acres of public land in Alabama, Tennessee, Georgia, Florida, Mississippi, Louisiana and Arkansas have been spared the saw for now. This result essentially ends logging on many of the National Forests of the South for the next few months until the Forest Service fully revises their rare species criteria to reduce their legal requirements to protect rare species.

Since complying with current legal requirements to protect rare species made their logging too difficult, the Forest Service is trying to do an end run and gut the requirements. This tactic by the Forest Service proves that they will do anything to get the cut out, that they have no real intention of protecting public resources like wildlife. The agency sees rare wildlife as an impediment to giving subsidies to their buddies in the logging industry; so, when the courts make they comply with the rules to protect wildlife, they try to change the rules. We are planning to sue them over those decisions to limit their responsibilities to protect wildlife.

Thanks to a generous grant from the W. Alton Jones Foundation, WildLaw is launching a new program to encourage and assist private landowners to use sustainable forestry practices and to slow urban sprawl.

WildLaw and its clients Wild Alabama, Wild South and The Dogwood Alliance have formed the Southern Sustainable Forests Alliance. Together, we developed the Southeast Forestry Project to provide landowners information and free legal and forestry assistance to help them make better and more informed choices about how they manage their forests. The Alliance is developing brochures, videos and landowner guide books to help forest owners protect their land while making money.

Also, the Alliance seeks to assist landowners to keep their forests as forests in perpetuity. Despite all the rhetoric from groups controlled by multinational timber corporations, the reality is that environmental organizations like those in the Alliance have much more in common with individual forest landowners than the corporations do. While corporations decry government "regulations" limiting forestry, the reality is that there is virtually no regulation of the timber industry in the South at all. Alabama and Mississippi have no laws or regulations on timber harvesting whatsoever. Indeed, the biggest threat to forests is the same threat to wildlife, water quality and other environmental interests: the loss of forests and habitat due to conversion to farms, pine plantations, strip malls, subdivisions and parking lots. Environmental organizations, like those in the Alliance, recognize that the individual forest landowner is usually a friend of the environment, a person who loves and cares for their land. Even a poorly managed forest is better for the environment than another parking lot and mega-mall surrounded by subdivisions. And a well-managed forest is a great environmental asset.

The Alliance will provide free forestry and legal advice and assistance to private landowners throughout the Southeast, concentrating first on Alabama, Mississippi and the Florida panhandle. Also, the Alliance will seek to assist landowners to keep their forests as forests in perpetuity

The special web site for this program was developed by Brett Paben of our Florida Office. The web site is found at www.southernsustainableforests.org

In mid-November 2000, the Forest Service withdrew the timber sale in the Indian River Wild and Scenic on the Hiawatha National Forest in Michigan in response to the lawsuit of Heartwood and Northwoods Wilderness Recovery filed by WildLaw staff attorney Leigh Haynie.  This is the third timber sale in a wild and scenic river corridor that this same team has stopped in Michigan in the last year. 300 acres of even-aged logging planned for the corridor was stopped.

WildLaw, on behalf of Northwoods Wilderness Recovery and Heartwood, filed another lawsuit on December 15, 2000, in the Western District of Michigan. The disputed timber sale is planned for parts of the East Branch of the Ontonagon River, a designated Wild and Scenic River. Included in the sale is the clearcutting of 489 acres, 1.5 miles of roadbuilding, and the even-aged management of another 235 acres.

This is the third lawsuit we have filed in Michigan in the year 2000 with NWR and Heartwood. Each lawsuit involved logging within a Wild and Scenic River corridor. The previous two lawsuits, which are still pending, have resulted in the Forest Service's withdrawal of logging within the Wild and Scenic River corridors, although the agency continues to pursue other damaging actions such as ill-conceived "recreation and fishery" projects.

In the Superior National Forest, WildLaw has filed a lawsuit for the Superior Wilderness Action Network and Heartwood over the Rocky Road timber sale. Throughout the environmental assessment (EA) for the project, the District relied on only the passage of time to mitigate any harm to visual quality, soils, or wildlife. For example, "It is anticipated that nutrient status of the soil would be returned to preharvest levels within 50 years through mineralization, biological fixation, and atmospheric deposition. The rate would vary by site." The EA also fails to contain site-specific mitigation measures. All mitigation measures reference or restate the management plan or reference other programmatic documents but are not site-specific. An example of a mitigation measure: "If this den is damaged or the surrounding area changed so that it is unsuitable as a den site, there are most likely other den sites available as replacements . . . It is unlikely that disturbance near this den would lead to a trend toward listing of the gray wolf." Suffice it to say, the gray wolf is already listed.

This logging sale involves clearcutting 823 acres, clearcutting/thinning 221 acres, and thinning 161 acres. The area of logging is surrounded by non-federal land under heavy extraction pressure, but little cumulative impact analysis was provided.

On November 28, 2000, District Ranger Paul Bradley withdrew his decision to implement a timber harvest in the Pisgah National Forest. A section of the Appalachian Trail, one of the most valuable and well-known resources in the North Carolina Mountains, is located adjacent to the area where logging was scheduled to occur. The proposed activities would have harvested timber on approximately
60 acres of National Forest land.

Present on the site of the proposed timber sale is a rare species, the Velvet Covert snail (Inflectarius subpallitus). The Environmental Assessment for this timber sale, prepared by the US Forest Service, mentioned the presence of this species, but failed to considered any impacts to them. On behalf of the Southern Appalachian Biodiversity Project, Western North Carolina Alliance,
Appalachian Voices, and Wild South, WildLaw's Southern Appalachian Office filed an administrative appeal with the Regional Forester in Atlanta, GA, alleging, among other things, that the surveying, monitoring, and inventorying conducted for this species was inadequate.

The decision to withdraw the sale comes after months of negotiations between the Forest Service and representatives of the citizen groups involved in the appeal. The groups even undertook a "field trip", accompanied by Forest
Service personnel, to the site of the proposed sale.

WildLaw has settled the case we filed against the Homanit fiberboard plant in North Carolina. WildLaw's Southern Appalachian Office had filed suit seeking to block the use of federal funds for the construction of a fiberboard plant in the Town of Mount Gilead. The United States Department of Housing and Urban Development issued a $2,000,000 grant to the Town of Mount Gilead in order to fund the initial construction costs for the proposed Homanit USA, Inc. fiberboard plant. If constructed, this plant would be supplied by a nearby chip mill and could result in an additional 3,000 to 10,000 acres of clearcutting each year in North Carolina.

Representing The Dogwood Alliance, Southern Appalachian Biodiversity Project, and EarthCulture, WildLaw argued that the Environmental Assessment for this proposed action was completely inadequate and that a full scale EIS needed to be completed. Due to complications in the case and the ability of the company to construct the plant anyway without the federal money up front, we settled the case for a confidential amount of money to be used to acquire forest land in North Carolina to be placed in a land trust for permanent protection and for requirements that suppliers of the timber for the mill meet a number of sustainable forestry standards.

On November 27, 2000, WildLaw filed a 60-day notice of intent to sue under the Endangered Species Act against Secretary of Interior Bruce Babbitt and Director of the Fish and Wildlife Service Jamie Rappaport Clark. On behalf of Edward W. Mudd, jr., the Biodiversity Legal Foundation and Wild Alabama, the lawsuit will be over these government officials' unlawful delaying of a final decision to list the Vermilion Darter as an endangered species and not to designate critical habitat for it.

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 Clark 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 ordered that the FWS not list the Darter by the legally-mandated, one-year deadline of April 18, 2001. The stated reason why the FWS has issued this moratorium on listings is that they claim that lawsuits by environmental groups over critical habitat designations have so crippled the agency that work on critical habitat is all they can do. Basically, they are saying that because they got caught breaking the law so many times in the past by refusing to designate critical habitat (which the ESA requires), they are going to break the law again by abandoning their duty to list imperiled species. Interestingly enough, despite this claim of a lack of funds to do their work, the FWS has never bothered to request an adequate amount of funding from Congress. They have known for more than a decade that the ESA programs are underfunded, and they have perversely liked it that way.

We will challenge 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. 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 pressures 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 APA.

In response to a threat from WildLaw and Wild Alabama to sue the State of Alabama over illegal garbage dumps created on state lands at Fort Toulouse, the Alabama Historic Commission promptly cleaned up the dumps. The Fort Toulouse - Fort Jackson site is where the Coosa and Tallapoosa Rivers come together to form the Alabama River, and the site has been used by Native Americans, the French, the British and then the Americans for more than 3,000 years. A WildLaw investigation found the illegal dumps.

In one of the nation's largest "timber theft" cases, a grand jury in the federal northern district of Alabama has indicted Forest Service employee John Stivers for several alleged crimes involving timber sales in the Shoal Creek District of the Talladega National Forest. The indictment alleges that Stivers disposed of 16,429 sawtimber trees valued at $285,195.55. The indictment also alleges that Stivers knowingly signed off on a sale as not being completed when it was completed, thus allowing a refund to be given to the purchaser. The indictment also claims that Stivers signed off on sales being completed when road maintenance work had not been done by the purchasers, as required by the sale contracts.

Having found numerous illegal actions in the timber sale program of the Talladega for years, WildLaw and its client Wild Alabama had to resort to legal actions to stop many logging projects there. Field surveys of the project areas covered by the indictment and other parts of that forest show that virtually everything that can go wrong with a commercial timber sale on a National Forest went wrong in the Talladega. Examples of improper actions over the years on the Talladega include: selling sawtimber trees as pulp wood, not requiring maintenance and rehabilitation of roads, not doing environmental review on areas to be logged, not site-checking areas to be logged, allowing the penning of horses (for horse logging) in streams, polluting of streams and lakes, destruction of archeological sites, allowing roads to be built where they should not be built and without any environment review, using 19 times the legal limit of herbicides, and many more.

WildLaw Main Office: 300-B Water Street, Suite 214, Montgomery, Alabama 36104. 334/265-6529, 334/265-6511 (fax). E-mail: WildLaw@aol.com for Ray Vaughan.

WildLaw North Woods Office: 12005 41st Ave. N., #201, Plymouth, Minnesota 55441. 612/551-9979 (office & fax). E-mail: WildLawNW@aol.com for Leigh Haynie.

WildLaw Southern Appalachian Office: 20 Battery Park Avenue, Suite 405 in Asheville, North Carolina 28801. 828/232-1157, 828/232-1162 (fax). E-mail: WildLawNC@aol.com for Steve Novak.

WildLaw Virginias Office: 9544 Pine Forest Road, Copper Hill, VA 24079. 540/929-4222. E-mail: WildLawVA@rev.net for Tammy Belinsky.

WildLaw Florida Office: 2424 Ian Drive, Tallahassee, Florida 32303. 850/523-0972 (phone/fax). E-mail: WildLawFL@yahoo.com for Brett Paben.

Web site for all offices: www.wildlaw.org.