The WildLaw Letter

and 1998 Annual Report

For Members and Friends January 1999

This edition of The WildLaw Letter is a combination report on 1998 and the normal update on what we have been doing in the past two months since the last newsletter.

1998 was another record year of growth and success for WildLaw. We have gone from one attorney to three and moved into larger, better offices. We have received the initial funding for adding a North Carolina office with two attorneys in 1999. We also are exploring the possibility with clients and funders of an Ohio Valley office being opened late in 1999.

In our cases, we defeated more than 12,000 acres of National Forest timber sales from Mississippi, Alabama, Georgia and North Carolina in 1998, up from 2,500 acres stopped in 1997. Our National Forest work also limited excessive use of "salvage" sales to control southern pine beetles and limited herbicide usage in several areas. Our efforts lead to the Forest Service agreeing to prepare the first ever EIS on a timber sale in the National Forests in Alabama.

We and our clients stopped damaging developments that would have destroyed beautiful proposed park lands and that would have killed rare fish species downstream. Success in fighting for rare species increased as well, with six species being listed under the Endangered Species Act in 1998 due to our efforts and many more being moved toward protection, and the case we filed over the Alabama Beach Mouse led to the best decision yet anywhere on making habitat conservation plans actually protect endangered species. Our work on improving water quality took a big leap forward with a successful lawsuit against the EPA that has given Alabama the most powerful TMDL program in the nation for protecting aquatic species and habitats.

Our urban renewal/anti-urban sprawl campaign saw good success, from the temporary halting of a massive mall in Birmingham (that fight will continue) to the formation of the organization working on rebuilding much of downtown Montgomery.

WildLaw uncovered the most massive conspiracy ever in the Forest Service to violate the Freedom of Information Act (FOIA). We also publicized the regional forester's secret memo demanding that forest supervisors "get the cut into the pipeline" or their forests would have money taken away and their jobs would suffer. The revelation of this memo garnered national attention. WildLaw's Executive Director Ray Vaughan and our clients Lamar Marshall (Wild Alabama) and Ned Mudd were featured in a very positive article in Sports Afield. We even got to make Chief Dombeck and Secretary of Interior Bruce Babbitt nervous in person, as we crashed a staged meeting with them in the Bankhead.

WildLaw organized a regional grassroots activist training workshop with Appalachian Voices that helped forest watch organizations learn how to comment on and appeal timber sales. Our web site and CD-ROM have received many compliments on their helpfulness for activists.

We won FOIA cases against the EPA and the Corps of Engineers. We made developments clean up their act and stop causing sediment to run into lakes and rivers.

Sure, we lost some cases in 1998 also, but our victories far outnumbered our defeats. And we did not lose through inaction. Plus, every case we lost garnered media and public attention, thus showcasing the need for stronger environmental laws in the nation.

In almost every way, 1998 was a great year for WildLaw, and we thank all of our members and donors for making it possible. Without you, we could not do what we do, so our success is yours too. We can all be proud of WildLaw's work and look forward to an even better and more successful 1999.

In October 1998, WildLaw filed a suit against the United States Fish and Wildlife Service (FWS) and Secretary of Interior Bruce Babbitt for their refusal to issue a 90-day finding under the Endangered Species Act (ESA) in response to our previous petition to list the Junaluska Salamander (Eurycea junaluska) as an endangered species under the ESA. Filed on behalf of Appalachian Voices and the Biodiversity Legal Foundation, the petition sought protection for an animal one expert called "perhaps the rarest salamander in North America." The 90-day finding is the first step toward the listing of a species under the ESA.

After the suit was filed, FWS issued a 90-day finding, agreeing with us that our petition presented substantial information that the Junaluska Salamander requires listing under the ESA. A status review has been initiated, and that begins the process toward a formal proposal to list the species.

WildLaw and its clients settled our appeal of the Witness Rock timber sale in the Pisgah National Forest with successful results. On behalf of Appalachian Voices, the Southern Appalachian Biodiversity Project, the Western North Carolina Alliance, and the Pisgah Group of the Sierra Club, WildLaw had filed an appeal of this sale, challenging 210 acres of cuts within sight of the Blue Ridge Parkway and near the Falls Branch Trail.

The Forest Service agreed to mark and leave more than twice as many trees in the stands slated to be cut. With the additional trees the Forest Service also agreed to leave adjacent to the riparian zone in one of the stands, this will provide for an almost continuous canopy in all of the stands visible from the Blue Ridge Parkway, and retain at least some forest structure and function in the remaining stands.

The Forest Service also totally dropped the remainder of stand 247-16. The Forest Service wanted to log the section north of the road because it was cove hardwood. This is next to a stream containing a pure strain of native brook trout, and the stream feeds a state-run fish hatchery downstream.

The Forest Service will also maintain a 100-foot buffer along the Falls Branch Trail, significantly reducing the logging along it. The Forest Service agreed to "revegetate and close any road constructed during project implementation, and allow those roads to revert to forested conditions," so they will not -- as originally proposed -- be regularly mowed as "linear wildlife openings." They agreed to gate these roads, as well, because of our expressed concern about illegal ORV traffic disturbing bears.

They have also agreed to contact us after the new leave trees have been flagged, but before the sale is begun, so we have an opportunity to make sure they're living up to the agreement.

On November 10, 1998, the Jefferson County Commission voted 3-1-1 to kill any plans to ever build a jail on Turkey Creek near Pinson, Alabama. Turkey Creek is a popular and beautiful swimming and Baptismal area, and it is home to the Vermilion Darter, a fish that lives in just a four-mile stretch of Turkey Creek. The jail proposal was defeated due to the massive and unrelenting public pressure put on the Commission by the citizens of Pinson and Jefferson County. The Society To Appreciate the Resources of Turkey Creek (START) did an incredible job of organizing the community and of fighting this nonsensical and destructive project.

WildLaw assisted in these efforts against the jail by filing two lawsuits on behalf of START and Wild Alabama over the jail/prison complex. One suit was in state court challenging the wasteful use of tax dollars in the plan and the killing of Flattened Musk Turtles and Vermillion Darters (both of which are protected under state law) that would occur from the construction of the jail. The other case was in federal court against Secretary of Interior Bruce Babbitt for his failure to protect the Vermillion Darter under the Endangered Species Act. The decision to cancel the jail at Turkey Creek ends the need for those two cases. However, the need to get the Darter listed under the ESA continues as Turkey Creek suffers greatly due to sedimentation from other construction and pollution from the County's sewage treatment plant. START, Wild Alabama and WildLaw will continue to work to get the Darter listed under the ESA's normal listing procedures. We will also work to get the site protected under Alabama's Forever Wild Land Acquisition Program and to clean up Turkey Creek through further public education and actions against those polluting this beautiful stream.

On behalf of Wild South, WildLaw appealed the De Soto National Forest's plan to conduct salvage cutting for suppression of the Southern Pine Beetle (SPB). The agency's decision gave them carte blanc allowing them to cut any amount of timber off of an unlimited number of acres anywhere in the De Soto, all without ever having to do any environmental impacts analysis or public notice before cutting.

In response to our appeal, the Forest Service agreed to place significant limitations on the plan. They have changed the plan to: (1) provide monthly reports of each SPB spot to WildLaw. These reports will include a checklist and a map showing the location of the affected spot along with additional active SPB spots and all nearby stands that have been regenerated within the last three years. (2) Every effort will be made to minimize the size of the cut buffers. (3) The De Soto will prepare new NEPA analysis for each SPB spot where control methods are 10 acres or greater. Any cut over 10 acres will require public notice and comment. National Forests in the Southeast have traditionally used the carte blanc method for SPB review and control, thus avoiding any public review of what they do past their initial announcement of the year's plan. Now, we have precedent to use in every other district for making them set forth exactly what they plan to do where and to have them make all that available for public review on an ongoing basis so that unreasonable SPB cuts can be stopped before they happen.

In response to a petition filed by WildLaw, the Fish and Wildlife Service has listed six species of aquatic snails in Alabama as endangered or threatened under the Endangered Species Act. This is the first multiple-species listing package that has been approved by Secretary of Interior Bruce Babbitt in many years, as he has been unwilling to protect species that generate any political controversy and multi-species packages tend to generate lots of controversy. This one did, but we worked with businesses and local governments to show them that protecting these snails will not cost any jobs or have any adverse economic impact. Getting them to realize the importance of protecting these snails is a major first step in building a better and more sensible business climate in a state that has traditionally seen wildlife as nothing but something to kill.

On behalf of the Chattooga River Watershed Coalition, WildLaw filed a lawsuit against the Hickory Bottoms Timber Sale, which involves even-age logging of 29 acres in part of the Rabun Bald RARE II roadless area in the Chattahoochee National Forest. The suit challenges the Forest Service's use of a Categorical Exclusion (CE) so that they did not have to do any environmental analysis on the impacts from this sale. The Forest Service cannot legally use a CE in inventoried roadless areas or to convert a forest from hardwoods to pine, both of which are occurring in this one sale.

On December 10, 1998, the Birmingham area Metropolitan Planning Organization (MPO) met to consider whether to approve a new interchange on Interstate 459 to support plans for development of a privately-owned, regional mega-mall on the banks of the Cahaba River. The interchange itself and other roads supporting the mall will be next to, and in some parts directly over, the Cahaba River itself. Despite there being two huge malls within a few miles down the same interstate, many area politicians had placed this mall and its taxpayer-financed "driveway" on a fast track. Thanks to great grassroots opposition from residents and local neighborhood groups, this destructive proposal faced a real chance of being voted down by the MPO, and so it was withdrawn by its sponsor and essentially shelved for the rest of this fiscal year. However, the backers of the mall and interchange vowed that these boondoogles will be built, no matter what.

Representing the Biodiversity Legal Foundation, Wild Alabama and a number of local residents, WildLaw attended the hearing and appeared on the evening news announcing our plans to file state and federal lawsuits against the planned interchange if it goes ahead. In a non-attainment area for ozone, building an interchange and new mall with an anticipated 20,000 new cars added to traffic daily will run afoul of the Clean Air Act. The impacts of the construction and operation of these facilities on the water quality of the nation's most biologically diverse small river will violate the Clean Water Act and the Endangered Species Act. Birmingham's main source of drinking water is directly downstream of this planned development, raising Safe Drinking Water Act problems. As part of WildLaw's anti-urban sprawl campaign, we are prepared to monitor and then sue over further actions taken toward building this interchange over the Cahaba River.

On behalf of Wild Alabama and the Alabama Wilderness Alliance, WildLaw has appealed timber sales in the Talladega and Bankhead National Forests.

In the Talladega, we are challenging the Chulafinnee sale, which covers more than 4,000 acres with 700 acres of clearcuts. No EIS was prepared for this massive sale which will occur along the Talladega Scenic Drive leading to Cheaha State Park (Alabama's highest point), and the Blue Mountain roadless area is just across the scenic drive from this timber sale area. Despite admitting that the cuts could impact endangered Gray and Indiana Bats, the Forest Service never did any research on the bats and the available habitat in the sale area.

In the Bankhead, we appealed, for the second time, the Compartment 150 sale, which is another excuse to clearcut recovering mixed hardwood and pine forests for planting into loblolly pine plantations. We defeated this sale once almost two years ago, and now it is back, without the Forest Service ever doing the additional analysis ordered by the Regional Forester when we won our first appeal.

WildLaw and Wild Alabama are offering a $20,000 reward for information that leads to the arrest and conviction of the person or persons who set fire to the Cheaha Wilderness. This reward is made possible by generous pledges from donors and friends who believe in protecting our rarest resource--wilderness.

On December 4, 1998, some person or persons intentionally set fire to the Cheaha Wilderness in the Talladega National Forest east of Birmingham, Alabama. The 7,400-acre Cheaha Wilderness is one of only two federally protected wilderness areas on public lands in Alabama, the Cheaha contains the highest and most scenic mountain ridges in the state.

According to Forest Service information, the fire was deliberately set in 20 "sets" or starting places along an old, closed woods road that runs into the southern part of the wilderness. The manner of the fire sets and the timing during a dry period shows that the people who started this fire did so with great thought and full knowledge that the fire would run up the mountainside into the heart of the wilderness. These were clearly people experienced in how woodland fires are set, how they act and what their effects on timber and forests are. According to the Forest Service, 3,108 acres were burned, a total of 42% of the entire wilderness. We have toured most of the fire area, and it looks like the moon with burnt trees stuck in it. Perhaps half of the trees in these areas will survive. Literally everything else was killed.

While the Forest Service was fighting this fire, the same or other persons set another fire in the Horn Mountain area of the Talladega National Forest southwest of Cheaha. Part of that area is proposed to be designated as a wilderness or scenic area by a number of environmental groups, including WildLaw, Wild Alabama, the Alabama Wilderness Alliance, the Sierra Club and the Alabama Environmental Council. The Forest Service was able to extinguish that second fire quickly before it caused much damage. It fully appears that some people are intentionally targeting wilderness and proposed wilderness areas in Alabama for destruction.

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